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Bar Prep > Remedies > Flashcards

Remedies Flashcards

1
Q

What are the three types of compensatory damages?

A

expectation, incidental, consequential

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2
Q

What are consequential damages?

A

Consequential damages are reasonably foreseeable damages, other than expectation damages, that are related to the tort or contract breach

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3
Q

What are the three elements that must be shown to prove consequential damages?

A

(FCC) foreseeability, causation, certainty

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4
Q

What are incidental damages?

A

Damages which arise when the non-breaching party is trying to remedy the breach

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5
Q

What are the possible forms of money damages?

A

nominal, reliance, punitive, restitution, liquidated, incidental

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6
Q

What are reliance damages?

A

Damages that the non-breaching party incurs in reasonable reliance upon the promise that the other party would perform.

It puts the nonbreaching party in the position they would have been in had the contract never been formed

+A party cannot recover both reliance and expectation damages
+Reliance damages cannot exceed the contract price

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7
Q

What are the elements to get a preliminary injunction or a temporary restraining order (TRO)?

A

[BILI]
like he needs to be temporarily restrained

  • Balance of hardships (compare P and D, willful misconduct, public interest)
  • Irreparable harm to the plaintiff
  • Likelihood of success on the merits
  • Inadequate legal remedy
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8
Q

What must be shown to get a permanent injunction?

A

HI

The hardships if the injunction is not issued will be significantly greater than the hardships on the defendant and third parties if the injunction is issued; AND

irreparable harm if the injunction is not granted

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9
Q

What must be shown to get specific performance of a contract?

A

FLP CD

1) Feasible to enforce and supervise performance
2) Legal remedies (money damages) are inadequate
3) the non-breaching party has satisfied any conditions Precedent
4) there must be a valid Contract with Certain and Clear terms
5) no Defenses exist

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10
Q

What are the three primary contract based defenses?

A

FUS

2) Fraud or misrepresentation
3) Unilateral mistake by the defendant (if the plaintiff knew or should have known of the defendant’s mistake)
1) SoF compliance

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11
Q

What is the defense of unclean hands?

A

the plaintiff is not entitled to obtain an equitable remedy because he is acting unethically or has acted in bad faith with respect to the subject of the complaint.

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12
Q

What are the requirements a P must show to obtain a constructive trust?

A

1) the D holds title to the property
2) the D would be unjustly enriched if they kept the property; and
3) the legal remedy is inadequate

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13
Q

What are the possible remedies for personal injury?

A

compensatory damages

this includes: pain and suffering, medical expenses, lost wages

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14
Q

What are the possible remedies for financial harm (intentional misrepresentation/fraud or negligent misrepresentation)?

A

money damages (compensatory, consequential, punitive), reformation, rescission, replevin, restitution, constructive trust/equitable lien

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15
Q

What is the approach to the essay when it asks for remedy discussion?

A

legal remedies, equitable remedies, restitution-based remedies

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16
Q

What are the three defenses to specific performance?

A

laches, unclean hands, unfair

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17
Q

What are the possible remedies for breach of a land contract?

A

money damages (typically just expectation), specific performance, rescission, restitution

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18
Q

What are the possible remedies for mistake/misrepresentation?

A

reformation, restitution

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19
Q

When is an equitable lien preferred over a constructive trust?

A

When the value of the property has decreased

Think: EL (L) is a loss

20
Q

What must the P establish to bring an ejectment action

A

1) title to the land; and

2) the right to immediate possession

21
Q

What is ejectment?

A

Ejectment is a common law cause of action by a plaintiff who does not actually possess a piece of real property but has the right to possess it, against a defendant who is in actual possession of the property.

22
Q

What is rescission?

A

Rescission is the unmaking of a contract.

23
Q

When may a party use rescission to unmake a contract?

A

mutual mistake, unilateral mistake, or fraudulent misrepresentation

24
Q

What is laches?

A

the denial of equitable relief because of an unreasonable delay in pursuing an equitable remedy of which the plaintiff was aware or should have been aware (e.g., unavailability of a witness), and which delay CAUSED PREJUDICE to the defendant.

25
Q

What is reformation?

A

An equitable remedy that rewrites an agreement to reflect the parties’ true intent

26
Q

What are the requirements of reformation?

A

the parties had a valid contract and the contract as written does not reflect the parties’ agreement

27
Q

When is a constructive trust preferred over an equitable lien?

A

When the value of the property has increased

Think: EL (L) is a loss

28
Q

How long can a TRO last?

A

no more than 14 days after entry of the order. It may be extended for good cause

29
Q

What is the primary purpose of a TRO?

A

The primary purpose of a TRO is to preserve the status quo until a preliminary injunction hearing can be held

30
Q

What is the primary purpose of a preliminary injunction?

A

the primary purpose of a preliminary injunction is to preserve the status quo pending a trial

31
Q

What is one big difference between a TRO and preliminary injunction?

A

A preliminary injunction requires that the defendant be given notice of the hearing and an opportunity to be heard

32
Q

What is a declaratory judgment?

A

A declaratory judgment is an official declaration of the status of a matter in controversy. The challenged action must pose a real and immediate danger to a party’s interests for there to be an actual dispute.

It is usually brought in combination with other forms of relief

33
Q

What type of damages are pain and suffering? What about medical expenses?

A

Pain and suffering is a form of general damage and may be alleged generally in a complaint

Medical expenses are special damages and must be specifically state in the complaint

34
Q

When an owner breaches a construction contract before or during construction, what are the builder’s damages?

A

the builder’s lost profits plus costs incurred, minus any costs saved or avoided

35
Q

When are punitive and nominal remedies available in torts?

A

for torts involving intentional or reckless conduct. A plaintiff cannot recover nominal or punitive damages for negligence.

36
Q

When seeking an ex parte TRO, what is required?

A

the attorney must certify in writing why the other party need not be notified. THIS DOES NOT APPLY TO PRELIMINARY INJUNCTIONS because notice is required

37
Q

What is the expectation damages for a buyer in a breach of contract?

A

The buyer has 2 options

1) the FMV at the time of the breach minus the contract price
2) Cover: purchase similar goods and collect the difference between the cover and the original contract

38
Q

When a lender breaches a loan agreement, what recovery is the borrower entitled to?

A

expectation damages equal to the difference between the interest cost of the original loan and the interest cost of the substitute loan

Ex: A bank agreed to lend a merchant $10k for one year at 8% interest. The bank failed to disburse the proceeds. The merchant was able to secure a loan from another lender at 10% interest for one year. In an action against the bank for breach of K, the merchant is likely to recover the difference in cost between a loan at 10% and a loan at 8%

39
Q

When repairs fail to restore goods to their value as warranted, what is the buyer’s damages?

A

the cost of repairs
+
the difference between the value of the goods after the repairs and the value of the goods as warranted

40
Q

In the UCC what is the rule regarding recovery of attorney’s fees?

A

There is NO provision in the UCC for recovery of attorney’s fees so, unless stated in the contract, they cannot be included in the damages

41
Q

Under the prevailing modern view, lost profits of a new business are recoverable if they are established with reasonable certainty

A

Ex: The law DOES allow recovery for the prospective losses of a new business, so long as the dollar amount of damages is established with reasonable certainty

42
Q

When the defendant is liable for fraud, there are two ways in which the damages are measured: (i) “loss of bargain,” which is the majority rule and (ii) “out of pocket”, the minority rule. Some states allow the plaintiff to elect the measure to be applied to determine damages.

A

o

43
Q

Punitive damages are generally not available in breach-of-contract actions, but they are for tort-based actions.

A

o

44
Q

What are the contract-based remedies?

A

RI RECLINERR
[imagine a contract for a recliner in RI]

Reliance
Expectation
Consequential
Liquidated
Incidental
Nominal
Ejectment
Injunction
Restitution
Rescission
Reformation
45
Q

What are the tort-based remedies?

A

RN RECIPE [imagine a nurse making a poison cocktail]

Restitution
Nominal
Replevin
Ejectment
Compensatory
Injunction
Punitive
Equitable Lien/Constructive Trust
46
Q

What must a TRO contain?

A
  • the reasons why it was granted
  • a reasonable description of the prohibited or commanded acts, which must be made without reference to the complaint or other document
  • the specific terms(e.g., persons bound, penalties for noncompliance)

Ex: A court issued a TRO in a one-sentence order that did not describe the acts to be restrained but instead incorporated by reference the allegations of the complain and the TRO motion. This failed to provide a reasonable description of the prohibited or commanded acts.

Bar Prep (15 decks)

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