Remedies

Question 1

Requirementd for a valid liquidated damages clause

Answer 1

Actual damages are difficult to estimate and the stipulated damages figure must be a reasonable forecast of fair compensation for breach. Cannot be a penalty.

Question 2

Quasi contract

Answer 2

Quasi contract is a principle used in contract law to prevent unjust enrichment of the defendant. Under common law, the breaching party was not able to recover. The modern trend is that the breaching party may recover the value of the benefit conferred that is an excess of the damages.

Question 3

Nominal damages

Answer 3

May be awarded when there are no actual damages

Question 4

Requirements for punitive damages in torts suit

Answer 4

The punitive damages are attached to compensatory, nominal, or restitutionary damages and there was wanton, willful, or malicious conduct.

Question 5

Legal restitutionary remedies in torts

Answer 5

Reply then for personal property and ejectment for real property.

Question 6

Equitable remedies are only available if

Answer 6

Legal remedies are insufficient

Question 7

Equitable restitutionary remedies are available when

Answer 7

Legal remedies are inadequate and the defendant has wrongfully acquired title to property.
Constructive trust
Equitable lien

Question 8

Permanent injunction elements

Answer 8

In adequate legal remedy, property right or protectable personal interest requirement, feasibility of enforcement, balance of hardship in some cases.

Question 9

Defenses to permanent injunction

Answer 9

Latches, unclean hands, freedom of speech, freedom of association, thought against criminal act unless tort, sought against criminal prosecution of a crime unless criminal statute unconstitutional.

Question 10

Preliminary injunction elements

Answer 10

Substantial likelihood of success, substantial threat of irreparable harm or injury, balance of harms, bond required, and notice required.

Question 11

Temporary restraining order elements

Answer 11

Imminent irreparable harm, necessary for status quo, limited to 14 days, and bond requirement. May be obtained by going in ex parte and making showing a proof.

Question 12

Equitable remedies for contracts

Answer 12

Rescission and reformation

Question 13

Grounds for rescission

Answer 13

Issues relating to contract formation, including mutual mistake, misrepresentation with actual reliance, undue influence, duress

Question 14

Contract reformation

Answer 14

The court alters the parties written agreement to conform with the parties original intent and understanding

Question 15

Defenses for equitable remedies for contracts (recission, reformation, specific performance)

Answer 15

Laches, unclean hands, plus

with reformation subsequent BFP

With specific performance, unconscionability

Question 16

Specific performance

Answer 16

Specific performance is an equitable remedy that the court may utilize to enforce the terms of a valid contract. Specific performance is a mandatory decree by the court requiring the defendant to perform what she promised under the original contract.

Question 17

Six requirements for specific performance

Answer 17

Valid contract, plaintiff’s contractual conditions must be satisfied, legal remedies inadequate, mutuality, enforcement feasible and no defenses.

Question 18

Time is of the essence clause in land sale contract

Answer 18

The time is of the essence clause requires timely performance of the contract. It must be expressly stated in the contract.

Question 19

Buyer’s remedies under the UCC

Answer 19

Before acceptance, the buyer is entitled to cover or market damages or if unique goods, specific performance.
After acceptance, the buyer can keep non-conforming goods and recover consequential damages or revoke the contract for material uncured bridge and get cover or market damages.

Question 20

Seller remedies under the UCC

Answer 20

Before acceptance, the seller would withhold goods and resell and recover difference between contract price and resell price, super contract price where seller cannot resell goods, or recover lost profits if volume seller.
After acceptance, the seller may sue for contract price or seek replevin.

Question 21

Remedy if real property is destroyed

Answer 21

Fair market value at time of destruction

Question 22

Is injunctive relief available for waste

Answer 22

It is available for voluntary waste but is generally not available for permissive waste

Question 23

Remedy if personal property is destroyed

Answer 23

Fair market value at time of distraction less salvage plus interest. Lost profits if chattel destroyed was income producing property.