Remedies Flashcards
Requirementd for a valid liquidated damages clause
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.
Quasi contract
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.
Nominal damages
May be awarded when there are no actual damages
Requirements for punitive damages in torts suit
The punitive damages are attached to compensatory, nominal, or restitutionary damages and there was wanton, willful, or malicious conduct.
Legal restitutionary remedies in torts
Reply then for personal property and ejectment for real property.
Equitable remedies are only available if
Legal remedies are insufficient
Equitable restitutionary remedies are available when
Legal remedies are inadequate and the defendant has wrongfully acquired title to property.
Constructive trust
Equitable lien
Permanent injunction elements
In adequate legal remedy, property right or protectable personal interest requirement, feasibility of enforcement, balance of hardship in some cases.
Defenses to permanent injunction
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.
Preliminary injunction elements
Substantial likelihood of success, substantial threat of irreparable harm or injury, balance of harms, bond required, and notice required.
Temporary restraining order elements
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.
Equitable remedies for contracts
Rescission and reformation
Grounds for rescission
Issues relating to contract formation, including mutual mistake, misrepresentation with actual reliance, undue influence, duress
Contract reformation
The court alters the parties written agreement to conform with the parties original intent and understanding
Defenses for equitable remedies for contracts (recission, reformation, specific performance)
Laches, unclean hands, plus
with reformation subsequent BFP
With specific performance, unconscionability
Specific performance
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.
Six requirements for specific performance
Valid contract, plaintiff’s contractual conditions must be satisfied, legal remedies inadequate, mutuality, enforcement feasible and no defenses.
Time is of the essence clause in land sale contract
The time is of the essence clause requires timely performance of the contract. It must be expressly stated in the contract.
Buyer’s remedies under the UCC
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.
Seller remedies under the UCC
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.
Remedy if real property is destroyed
Fair market value at time of destruction
Is injunctive relief available for waste
It is available for voluntary waste but is generally not available for permissive waste
Remedy if personal property is destroyed
Fair market value at time of distraction less salvage plus interest. Lost profits if chattel destroyed was income producing property.
