Remedies

Question 1

Checklist - Torts

Answer 1

Damages - compensatory, nominal, punitive
Restitution
- Legal - $ (unjust enrichment), replevin, ejectment
- Equitable - CT, EL
Equitable - Injunction (TRO, prelim, perm)

Question 2

Checklist - K

Answer 2

Damages - expectation/reliance, consequential, liquidated
Restitution
- Legal - $ (unjust enrichment)
Specific performance
Rescission, reformation

Question 3

Compensatory damages - tort

Answer 3

Seeks to put π in position he would have been in had the injury not occurred
FP’s - destroyed/damaged prop, dispossession, PI, fraud
General damages compensate for foreseeable losses - pain and suffering
Special damages compensate for losses not nec foreseeable and must be specially pleaded - lost wages, medical expenses

Question 4

Compensatory damages - tort - req’s

Answer 4

1. but for causation
2. foreseeability
3. certainty - can’t be too speculative
4. unavoidability - π must take steps to mitigate

Question 5

Nominal damages

Answer 5

π has no actual injury
Small amt of $ when no actual damages can be proved
Establish or vindicate rt’s

Question 6

Punitive damages

Answer 6

Punish and deter
1. π must have 1st been awarded compensatory or nominal damages
2. ∆’s type of fault must be greater than neg
3. relatively proportionate to actual damages - single digit multiplier
Doesn’t compensate for actual injury suffered by π

Question 7

Restitution - torts

Answer 7

∆ unjustly enriched
There need not be any injury to π
FP - dispossession

Question 8

Restitution - torts - legal

Answer 8

$ - benefit to ∆, sometimes called waiving the tort and suing in assumpsit
Replevin
Ejectment

Question 9

Replevin

Answer 9

Recovery of specific personal prop
1. π has rt to possession
2. wrongful withholding by ∆
π can recover before trial - needs to post a bond in case he’s wrong, ∆ can defeat an immediate recovery by posting a redelivery bond in case he’s wrong
Almost always coupled w/ damages for lost use or benefit to ∆ during time of detention

Question 10

Ejectment

Answer 10

Recovery of specific real prop
1. π has rt to possession
2. wrongful withholding by ∆ - ∆ must be in possession of prop
Almost always coupled w/ damages for lost use or benefit to ∆ during time of wrongful withholding

Question 11

Constructive trust

Answer 11

Prop value goes up subsequent to taking
1. ∆ has title to prop
2. acquisition of title was due to ∆’s wrongdoing
3. ∆’s retention of prop would result in unjust enrichment, and
4. inadequate legal remedy
Can’t be used when ∆ has improved other prop w/ π’s prop

Question 12

Equitable lien

Answer 12

Prop value goes down subsequent to taking
∆’s prop can’t be traced solely to π’s prop
1. ∆ has title to prop
2. acquisition of title was due to ∆’s wrongdoing, and
3. ∆’s retention of prop would result in unjust enrichment
Can be enforced only up to amt of π’s claim - enhanced value of prop isn’t recoverable

Question 13

Injunction

Answer 13

Order that ∆ refrain from doing something (negative) or affirmatively do something (mandatory)
TRO
Prelim
Perm

Question 14

TRO

Answer 14

Issued pending a hearing to determine whether prelim injunction should be issued
1. irreparable injury, weighed against any hardship of ∆ to make sure that the hardship to ∆ doesn’t greatly outweigh benefit that π may get from relief sought - π must show that he will incur irreparable injury while waiting for a full trial on the merits and needs relief now
2. likelihood of success - probability that π will succeed in full trial on the merits, ct should impose bond req on π to reimburse ∆ if TRO injures him and π doesn’t succeed
May be used after notice and a hearing or ex parte on a sufficient showing of urgency

Question 15

Preliminary injunction

Answer 15

Issued after notice and an adversary hearing
1. irreparable injury, weighed against any hardship of ∆ to make sure that the hardship to ∆ doesn’t greatly outweigh benefit that π may get from relief sought - π must show that he will incur irreparable injury while waiting for a full trial on the merits and needs relief now
2. likelihood of success - probability that π will succeed in full trial on the merits, ct should impose bond req on π to reimburse ∆ if TRO injures him and π doesn’t succeed
Issued pending a trial on the merits

Question 16

Permanent injunction

Answer 16

I’m Feeling Bold and Determined

1. inadequate legal remedy
2. feasibility of enforcement
3. balancing the hardships
4. defenses

Question 17

Inadequate legal remedy

Answer 17

$ damages too speculative, ∆’s insolvent, true irreparable injury, avoiding multiplicity of axn’s; replevin; ejectment

Question 18

Feasibility of enforcement

Answer 18

No enforcement prob for negative injunctions
There may be an enforcement prob for mandatory injunctions based on difficulty of supervision or concern w/ effectively ensuring compliance

Question 19

Balancing the hardships

Answer 19

π’s benefit v. ∆’s hardship if granted

1. there must be a gross disparity betw ∆’s detriment and π’s benefit
2. even the, there will be no balancing if ∆’s conduct was willful
3. consider awarding $ damages
4. hardship to the public - almost always a primary discussion when tort is nuisance or trespass to land

Question 20

Defenses

Answer 20

Unclean hands
Laches
Impossible for ∆ to carry out terms
Free speech

Question 21

Unclean hands

Answer 21

Only available if π’s alleged improper conduct is related to the suit

Question 22

Laches

Answer 22

Effect of passage of time
- how prejudicial is passage of time for ∆?
Time period will never be greater than SOL
Clock starts to run when π learns of injury
Delay cuts off rt to relief when it has been both unreas and prejudicial to ∆
Consider awarding $ damages

Question 23

Free speech

Answer 23

If tort is defamation or privacy publication, injunction should be denied based on free speech grounds

Question 24

Simple trespass

Answer 24

Nominal damages
Restitutionary damages
Injunctions

Question 25

Destruction/damage to real prop

Answer 25

Compensatory damages

Injunction

Question 26

Dispossession of real prop

Answer 26

Compensatory damages
Restitutionary damages
Ejectment
CT/EL

Question 27

Encroachment

Answer 27

Compensatory damages
Injunction
No restitution

Question 28

Nuisance

Answer 28

Compensatory damages
Injunction
No restitution

Question 29

K $ damages

Answer 29

Purpose of $ damages is to compensate
$ damages are meant to protect non-breaching pty’s expectation
Purpose is to put π in same $ position he would have been as if no breach

Question 30

Expectation damages - K

Answer 30

Benefit π expected to get out of K

Look to the future

Question 31

Punitive damages - K

Answer 31

Not allowed

Question 32

Consequential damages

Answer 32

Must be foreseeable at time K was entered into

Question 33

Liquidated damages

Answer 33

Damages specified in the K
1. actual damages must be diff to calculate
2. amt specified must be a reas approximation
Invalid clause = penalty
If pty’s intent is clearly expressed, may serve as a true alternative to performance

Question 34

Restitution - K

Answer 34

$ restitution
Benefits unjustly retained by ∆ when there’s a void or unenforceable K or where π chooses not to sue on the K, permitting recovery in quasi K or quantum meruit
π can get for prop/$ given to or services rendered for ∆
- value of the benefit - can be greater than K price
π can get prop back if it’s unique or ∆’s insolvent
Breaching pty may sometimes recover even though he’s breached

Question 35

Specific performance

Answer 35

Cha Cha Is Fairly Difficult

1. K is valid - definite and certain terms
2. conditions of π satisfied
3. inadequate legal remedy
4. feasibility of enforcement
5. defenses

Question 36

Inadequate legal remedy - SP

Answer 36

$ damages are insuff bc 
- speculative
- ∆'s insolvent
- multiplicity of suits
- thing bargained for is unique 
--> if prop is unique, then even if π rec'd damages, he couldn't simply go out and buy prop bc it wouldn't be available
Real prop is unique
Personal prop is generally not unique and damages are adequate - however, one of a kind or very rare personal prop are unique

Question 37

Feasibility of enforcement - SP

Answer 37

Personal services K’s aren’t generally specifically enforceable - involuntary servitude
Covenants not to compete are enforceable if services are unique and both geographic and duration scope is reas

Question 38

No defenses - SP

Answer 38

Equitable defenses - unclean hands, laches, unconscionability (egregrious at time of K formation)
K defenses - mistake, misrep’n, SOF

Question 39

Rescission

Answer 39

K is voidable and deal is called off
Good Dog
1. Grounds for rescission
- mutual mistake, unilateral mistake, misrep’n, coercion, undue influence, lack of capacity, failure of KSN, illegality
2. Defenses- unclean hands, neither laches nor neg will work
If π sues for damages 1st, then rescission isn’t allowed
If π sues for rescission 1st, then damages are allowed
Can sue for both at the same time but must elect preferred remedy before judgment

Question 40

Reformation

Answer 40

π wants K rewritten
Very Good Dog
1. Valid K
2. Grounds for reformation - mutual mistake, unilateral mistake, misrep’n
3. Defenses- laches, sale to BFP, but PER, SOF, and neg aren’t good defenses

Question 41

Mutual mistake

Answer 41

Rescission
- granted if material fact, denied if collateral fact
Reformation
- granted

Question 42

Unilateral mistake

Answer 42

Rescission
- denied
–> exception - non-mistaken pty knows or should have known of the mistake, mistaken pty would suffer undue hardship if there’s no rescission
Reformation
- denied
–> exception - where non-mistaken pty knows of the mistake

Question 43

Misrepresentation

Answer 43

Rescission
- granted if π can show that he actually relied on misrep’n
Reformation
- granted
- rewriting reflects expressed intent of the pty’s