Remedies Flashcards
3 tort remedies
legal, restitutionary, equitable
3 types of damages
compensatory, nominal, punitive
what are compensatory damages? general? special?
Compensatory damages are an award of money to compensate the p for loss or injury.
General damages compensate foreseeable losses (pain and suffering).
Special damages compensate for losses not necessarily foreseeable (wage losses) and must be specifically pleaded.
What are the four requirements for compensatory damages?
(1) actual causation - but for tortious conduct, p wouldn’t be damaged
(2) foreseeability - injury must be foreseeable at time of tortious act
(3) certainty - damages can’t be too speculative
(4) unavoidability - p must take reasonable steps to mitigate damages.
What are nominal damages?
Nominal damages are often recoverable when no actual injury is sustained.
what are punitive damages?
Punitive damages may be awarded to punish a defendant for “willful, wanton, or malicious conduct.”
Generally limited to intentional torts but recoverable in cases of reckless misconduct.
Cannot stand alone.
Cannot exceed in double digits times the compensatory damages.
What are restitutionary remedies?
Restitutionary remedies may be legal or equitable and are an alternative to compensatory damages where d has obtained a benefit, retention of which amounts to “unjust enrichment.” Objective is to restore d’s unjust gain to p.
What are three types of legal restitutionary remedies? What if there’s both restitutionary and damages available?
restitutionary damages - based on b to d.
replevin - p recovers possession of piece of personal property if (1) est right to property and (2) est wrongful withholding.
- article 2 permits a buyer to replevy undelivered, identified goods if after reasonable effort the buyer is unable to secure adequate substitute goods.
- not an adequate remedy if there is no gaurantee tat sheriff will be successful in seizing and restoring the property to the p (can’t find it)
ejectment - p recovers possession of real property if (1) est right to property and (2) wrongful withholding.
Choose higher one
What are the two types of equitable restitutionary remedies?
How do you know which one to use?
Constructive trust: Equity creates a “trust” to compel d to reconvey title to property unjustly retained. requirements:
(1) p must sow that d has title to property and d’s acquisition of title can be traced to property that d wrongfully acquired
(2) d’s retention of property would result in unjust enrichment, and
(3) p has no adequate remedy at law (d’s insolvency ok)
Equitable liens: imposed on improperly acquired property to which d has title. Property will be subject to an immediate court-directed sale. The monies received go to p. If the proceeds of the sale are less than the fair market value of the property when it was taken, a deficiency judgment will issue for the difference and can be used against defendant’s other assets.
- Property value increases constructive trust
- Property value decreases equitable lien
o When d’s property cannot be traced solely to p’s property, only equitable lien is available
o An equitable lien can be imposed on property that was merely improved with the p’s proceeds thereof.
What is injunctive relief?
If damages and restitution are inadequate to remedy a tort, a p may be able to get an injunction against tortious conduct being or about to be committed if the following requirements are met. They can be temporary or permanent, mandatory or negative.
Define interlocutory injunctions. Elements for temporary injunctive relief
An interlocutory injunction is used to preserve the statuts quo between parties until a full trial on the merits can be held. A prelim injunction is granted after court hearing and will remain in effect until full trial.
TROs are sought when irreparable harm will occur before hearing for prelim injunction.
(1) irreparable injury upon balance of the hardships
(2) est p’s likelihood of success
TRO - can be issued ex parte if p can show irreparable injury and strong showing why notice shouldn’t be required. hardships not balanced.
Four part-check list for permanent injunctive relief
(1) inadequate legal remedy
Replevin - legal remedy inadequate because sheriff can’t recover it or d can file a redelivery bond
ejectment - legal remedy inadequate if sheriff refuses to act
money damages - inadeuqate if too speculative, d is insolvent, irreparable injury (land), and to avoid multiplicity of actions
(2) feasibility of enforcement based on (1) difficulty of supervision or (2) concern with effectively ensuring
- enforcement is feasible when the court has PJ over the d because if the d refuses to obey the court’s command, they can be held in contempt of court.
(3) balancing of hardships
- majority - if harm to p does not outweigh harm to d or public an injunction should be granted as a matter of course.
- no balancing if d’s actions were intentional.
(4) defenses
- unclean hands - party seeking equitable relief must not be guilty of “unfair dealing” with respect to transaction sued upon
- laches - unreasonable delay by p in initiating his equitable claim that results in prejudice to d. always shorter than SOL.
- impossibility - impossible for d to carry out the terms
- free speech - defamation or privacy
what are the legal contract remedies?
(1) Compensatory damages give compensation for the breach (put the nonbreaching party in the position he would have been in had the promise been performed). As with tort cases, damages must be causal, foreseeable, certain, and unavoidable.
(a) Expectation damages are a type of compensatory damages that are measured by the benefit of the bargain (the difference between the market price and the contract price).
(b) Incidental damages: In a contract for a sale of goods, the nonbreaching party may also recover incidental damages, which are expenses reasonably incurred in inspection receipt, transportation, care, custody of goods rightfully rejected, and other expenses reasonably incident to the seller’s breach.
(c) Consequential damages: those losses that are above and beyond expectation damages resulting from the breach that a reasonable person would have foreseen at the time of entry into the contract;
1. These damages are generally due to p’s particular circumstances and are usually lost profits resulting from the breach
2. Consequential damages must not be too speculative.
(d) liquidated damages
(2) nominal damages are allowed but punitive are not.
When will a liquidated damages clause be upheld?
(1) damages are very difficult to ascertain at the time of contract formation AND
(2) this was a reasonable forecast of what they would be
(3) not a penalty
if upheld only liquidated damages are available
Quasi-contracts - restitutionary remedy
The law imposes an obligation to pay for unjust gain received pursuant to an unenforceable contract. Grounds for recovery are d’s unjust enrichment, which most commonly results from mistake, fraud, material breach of contract, or performance of an unenforceable contract.
Quasi-contracts/restitutionary remedies - what is the measure of the benefit?
(1) Where the contract was materially breached, the nonbreaching party can recover the value of her performance even in excess of the contract rate in most jurisdictions. The breaching party can recover the value of the benefit conferred in excess of other party’s damages but not contract rate.
(2) Where the contract was unenforceable, recovery depends on the nature of the benefit conferred. Specific restitution available for recovery of tangible property. For goods or services, p is entitled to the value thereof, even in excess of contract rate.
What is the five part checklist for specific performance?
(1) contract is valid/certain & definite
(2) p must show her contract conditions have been fulfilled (already performed, ready and able tot perform, or excused from performing)
(3) inadequate remedy at law because
- damages too speculative
- defendant is insolvent
- multiple suits are necessary
- the thing bargained for is unique
(4) feasibility of enforcement
(5) no defenses apply
- equitable: unclean hands, laches, unconscionability
- contract: mistake, misrep, SOF, hardship
Is specific performance available if liquidated damages clause?
yes
What must p show to require specific performance of sale of land?
If p is seller, p can specifically enforce the contract if the defect is minor but cannot enforce the contract if the defect is major unless the seller can cure defect by closing.
If p is buyer, p can enforce if defect is major but cannot contract if defect is very major (abatement - reduction of price because of defect)
For specific performance of sale of land - what happens if there’s a “time is of the essence” fact pattern, the buyer makes a late payment and now seller wants to keep all payments and property?
“equity abhors forfeiture” Court will decide whether forfeiture is appropriate under following factors:
(1) loss to seller is small
(2) tardiness is de minimus
(3) waiver
(4) buyer would suffer undue hardship
Define specific performance
Specific performance is a mandatory decree or injunction that orders a contracting party to perform what he has promised to preform under th econtract.
feasibility of enforcement for specific performance - when is spec perf not okay?
not okay for services contracts because involuntary servitude and enforcement problems
SOF defense to contract performance. When does SOF bar recovery? How does one get out of SOF?
(1) land -
(2) oral contracts
however, if one has rendered (1) valuable part performance,
[for land, this means 2 of three: payment, possession, valuable improvements]
[for K - valuable services]
(2) in reliance on the K, we’re out of SOF - specific performance will be granted.
What is recission and when is it granted?
What are the defenses?
Recission cancels out the contract where it is made from mutual mistake of fact affecting basis of bargain, misrep if p can show actual reliance on material misrep of fact, fraud, duress, or where the contract is materially breached. It’s usually accompanied by restitution. Can be legal (by action of parties) or equitable (by court decree).
defenses: laches and unclean hands
What are defenses to specific performance again?
laches - unreasonable delay that prejudices d
unclean hands - requires unfair dealing that arises out of the same transaction
hardship
sharp practices - inadequate consideration that is either (1) grossly inadequate, or (2) coupled with an unconscionable contract or “sharp practices.” at time K was entered into.
Disproportionate hardship
hardship to do or public that greatly outweighs the harm that p would suffer if specific performance were not granted
mistake or misrep that results in hardship or that constitutes basis for recission
Rule re suing for damages vs. recission
- P can’t sue for damages first – recission is not allowed here
- P can sue for recission first though
- Can sue for both at the same time but must elect the preferred remedy before judgment
What is reformation and what is the process for receiving it?
Reformation is an equitable remedy for modifying a written instrument to reflect the parties’ true agreement.
VERY GOOD DOG
(1) valid contract + meeting of the minds
(2) grounds for reformation - the underlying ground for reformation is that the writing does not conform to the parties’ valid prior agreement because of mistake or fraud
- unilateral reformation not allowed unless non-mistaken party knows of the mistake (fraud, inequitable contract)
NOT IF THEY SHOULD HAVE KNOWN
(3) no defenses apply
- unclean hands
- laches
NOT GOOD DEFENSES: negligence of p, SOF, parol evidence rule
Construction contracts - damages, restitution, specific performance
Damages
Owner breach - builder recovers lost profits if the contract is wholly executory; he recovers the contract price if the K is completed, or the K price less cost of completion if the K is partially performed.
Builder breach - Where the builder breaches but has substantially performed, the owner recovers the cost of restoration unless this would produce economic waste - in which case recovery is limited to dimunition in value. If the builder is in material breach, the owner gets the cost of completion less payments due, plus compensation for delay.
Restitution
If the owner breaches, the builder can rescind and recover the value of benefit conferred.
If the builder breaches, the owner is usually not entitled to restitution. (no payments made in excess of benefit received.)
Specific performance
Supervision problems traditionally preclude specific performance. Today, courts are more willing to overlook feasibility problems.
