Remedies

Question 1

Specific Performance

% out of exams tested: 35%

Answer 1

Issue: Whether [Molly] can obtain the [marijuana pipe] by specific performance.

Rule: Specific performance is a mandatory decree or injunction that orders a contracting party to perform that which she has promised to perform under the contract. To obtain an order for specific performance: (i) there must be a contract with definite and certain terms between the parties; (ii) the plaintiff must already have performed or be ready and able to perform all of his conditions under the contract; (iii) the legal remedy must be inadequate; (iv) it must be feasible for the court to enforce the decree; and (v) the defendant must not have any defenses.

• The legal remedy is inadequate when the subject matter of the contract is rare and unique.
• Enforcement is feasible when the court has personal jurisdiction over the defendant because if the defendant refuses to obey the the court’s command, she can be held in contempt of court.

Question 2

Expectation Damages

% out of exams tested: 30%

Answer 2

Issue: Whether [Ted] can recover expectation damages for the nondelivered [Magic cards].

Rule: Compensatory damages give compensation for the breach, i.e., put the nonbreaching party in the position he would have been in had the promise been performed. Expectation damages are a type of compensatory damages that are measured by the benefit of the bargain (i.e., the difference between the market price and the contract price).

Question 3

Incidental Damages

% out of exams tested: 20%

Answer 3

Issue: Whether [Ted] can recover consequential damages for the nondelivered [Magic cards].

Rule: In contracts for the sale of goods, the nonbreaching party may also recover incidental damages (i.e., expenses reasonably incurred in inspection, receipt, transportation, care, custody of goods rightfully rejected, and other expenses reasonably incident to the seller’s breach.

Question 4

Consequential Damages

% out of exams tested: 20%

Answer 4

Consequential damages are those losses above and beyond expectation damages resulting from the breach that a reasonable person would have foreseen at the time of entry into the contract. These damages are generally due to the plaintiff’s particular circumstances and are usually lost profits resulting from the breach. Consequential damages cannot be speculative.

• Consequential damages will only be awarded where they are reasonably foreseeable at the time the contract is entered by the parties.

Question 5

Rescission

% out of exams tested: 15%

Answer 5

Rule: Rescission allows a plaintiff to wipe out the contract and restore the status quo prior to the contract so long as the defendant does not have any legitimate defenses. Both fraudulent misrepresentation and innocent misrepresentation are grounds for rescission if the misrepresentation occurred at or before the time the contract was entered into.

• Fraudulent misrepresentation: If the defendant makes a fraudulent misrepresentation, the plaintiff has the option of either rescinding the contract and seeking restitution for any unfair benefit the defendant received, or affirming the contract and seeking damages.
• Innocent Misrepresentation: Where the defendant makes an innocent misrepresentation, the contract can only be rescinded.

Question 6

Defense:

Unclean Hands

% out of exams tested: 27.5%

Answer 6

Rules: Unclean hands is a defense where the plaintiff is guilty of some inequitable or wrongful conduct regarding the same transaction as to which she is presently suing the defendant.

Question 7

Preliminary Injunction

% out of exams tested: 12.5%

Answer 7

A court may order a preliminary injunction to maintain the status quo until a trial on the merits can be held. Like a TRO, a preliminary injunction requires proof of irreparable injury that would occur before the trial can be held and a likelihood of success on the underlying claim.

Question 8

Temporary Restraining Order

% out of exams tested: 12.5%

Answer 8

Rule: In an emergency, a court will impose a temporary restraining order (“TRO”) to maintain the status quo until a regular, adversary-type hearing can be held on a motion for preliminary injunction.

The moving party must: (i) give the nonmoving party notice of the TRO, unless the moving party can make a strong showing why notice should not be required; (ii) prove that he will suffer irreparable injury before a preliminary injunction can be obtained; and (iii) show the likelihood of succeeding on the merits of his underlying claim.