Remedies

Question 1

Limits on Remedies (ALWAYS BEGIN WITH THIS)

Answer 1

Damages must be causal, certain, foreseeable, unavoidable

Always duty to mitigate

Question 2

Punitive Damages

Answer 2

Punitive damages are available to punish the defendant where their actions were particularly reprehensible (tort) or willful and wanton (k)

Punitive damages must be proportionate to compensatory damages (no more than 10x).

Question 3

Contract Damages

Answer 3

Breach of K

Question 4

Restitution

Answer 4

Legal restitution in the form of money will be awarded where a party has been unjustly enriched.

If money damages are not awarded, legal restitution will be available in the amount that the defendant was unjustly enriched.

Calculated based on the benefit to the breaching party.

P cannot recover both restitution and compensatory damages

Can take form of money, CT, EL

Question 5

Equitable Lien (Equitable Rem)

Answer 5

An equitable lien is an equitable remedy that a court may order to attach to some piece of property. See tracing.

Can be stock

Question 6

EL Tracing

Answer 6

In order for a court to attach an equitable lien on a piece of property, the plaintiff must be able to adequately trace their interest to that property.

Funds in excess of investment = tracing likely successful

Question 7

Constructive Trust (Equitable Rem)

Answer 7

A constructive trust is an equitable remedy that a court may order over a specific piece of property.

Question 8

Contract Remedies

Answer 8

Must be actual, foreseeable, certain (not speculative), and unavoidable.

Plaintiff has duty to mitigate damages to extent mitigation is possible.

Question 9

Compensatory Damages in Contract/Expectation

Answer 9

CD in contract put a party in the position they would have been in if the contract had been performed or if no breach occured (Expectation)

Question 10

Reliance Damages

Answer 10

RD puts a non-breaching party in the same position they would have been in if no contract had been formed and reimburses them for any costs that they incurred as a result of the breach

Question 11

Specific Performance (Equitable Rem)

I V P F D

Answer 11

In order for there to be SP, there must be a breach of k. SP is an equitable remedy that the non-breaching party can seek in an attempt to enforce the contract and have the court require the breaching party to perform their promise.

(Go into governing law, valid k, breach)

To grant:

• inadequate remedy at law
• valid k
• conditions performed by P or ready to perform
• feasible for the court to order relief
• no defenses

Question 12

Reformation + Grounds

Answer 12

Reformation is an equitable remedy that allows courts to “rewrite” a k to reflect the actual intent of the parties. Court must be satisfied that there was valid k and grounds for reformation

Also, consider validity of the modification to k

Question 13

Preliminary Injunction

Answer 13

A preliminary injunction is an equitable remedy granted by the court to keep up the status quo until a trial on the merits of the case. It is the next step above a TRO.

Petitioner must show irreparable harm if not granted, the likelihood of success on merits, balance of the hardships, an inadequate legal remedy, posting bond, notice, and no defenses

Notice: unlike TRO, needs notice and an opportunity to be heard at the hearing

Bond: to cover any losses just in case does not win on merits

Question 14

Compensatory in Contract

Answer 14

Compensatory damages are measured by the non-breaching party’s expectation (i.e. cost of alternate performance or benefit of the bargain)

Question 15

Temporary Restraining Order

Answer 15

Used to maintain the status quo and for the P to prove that he will suffer immediate farm if the court does not grant an immediate injunction.

Generally given to plaintiffs that can show that irreparable harm will be caused if the restraining order isn’t given and a likelihood of success on the merits. The court will also balance the hardships. Talk about inadequate damages

The party that seeks TRO will likely need to post bond

Fed law: valid for 14 days

D needs to be aware of TRO but P needs to state why

Mention defenses

Question 16

Remedies for LSK

Answer 16

Remedies for land sale contracts must be foreseeable, causal, certain, and unavoidable

Question 17

Rescission + Grounds

Contract

Answer 17

Rescission is the avoidance of a k so as to put the parties in the place they were immediately before the k. A court will only grant rescission if the party has the grounds to seek it and there must not be any defenses to the granting of it.

A party may seek to rescind a contract for a variety of reasons including mutual mistake, unilateral mistake, or fraudulent misrepresentation.

Usually followed by Restitution

Question 18

Incidental Damages

Answer 18

If party incurred any costs as a result of the breach

Question 19

Equity will not… (defenses)

Answer 19

…reward those who have unclean hands

….enforce a k where the terms are unconscionable

Question 20

Grounds for reformation

Answer 20

Mutual mistake or unilateral mistake

Question 21

Defense: SOF

Answer 21

The SOF requires that a k for the sale of land or anything above $500 be in writing

Question 22

Defense: Parole Evidence Rule

Answer 22

The PER states that a fully integrated agreement cannot be contradicted by outside evidence and a partially integrated agreement can only be supplemented by extrinsic evidence

Agreement is integrated if the parties manifest intent that it be the final description of the agreement’s terms

Exceptions: collateral agreement doctrine, fraud

Question 23

Defense: Mirror Image Rule

Answer 23

The MIR states that an acceptance memorialized in a k must mirror the terms of the offer or else it is a rejection and a counter offer

Question 24

Waiver or Remedies

Answer 24

A customer cannot waive their complete right to recourse or remedy in a k for goods and parts that are deemed unconscionable will not be enforced in a court of law

Question 25

Nominal Damages

Answer 25

Nominal damages are a small amount of monetary relief that is given to the plaintiff when they have proven liability on a tort, but the amount of actual damages is minimal

Seek to relinquish a wrong that was done to the plaintiff and are more likely to be awarded for intentional torts when not much harm is proven

Question 26

Permanent Injunction

Answer 26

A permanent injunction may be issued for many reasons as a preliminary injunction. A court will balance the hardships and determine if the permanent injunction should be granted in equity. The plaintiff must post a bond to cover any losses to the defendant if the injunction is invalidly granted

Question 27

Defense: Unclean Hands

Answer 27

The court will not aid suitors that come to court with unclean hands

Question 28

Defense: Laches

Answer 28

Laches seek to bar a plaintiff for recovery if they wait too long to bring suit and it causes undue prejudice

Question 29

Cover

Answer 29

A party may seek cover for a good when the other party has breached

Question 30

Mutual Mistake

Answer 30

A MM occurs when both parties are mistaken as to an essential element of the k. A k may be voided by the adversely affected party if:

1. it existed at the time of the k formation
2. it relates to a basic assumption of the k
3. it causes a material impact on the transaction, and
4. the adversely affected party did not assume the risk of the mistake

Question 31

Unilateral Mistake

Answer 31

A UM occurs when one of the parties is mistaken as to an essential element of the k and the mistake party may seek to void the k if:

1. he did not bear the risk of the mistake
2. either enforcement would be unconscionable OR the non-mistaken party caused the mistake, had a duty to disclose or failed to disclose, and knew or should have known that the other party was mistaken, and
3. must be an absence of serious prejudice to the other party if rescission granted

Question 32

Fraudulent Misrepresentation

Answer 32

FM requires:

1. a false assertion of fact made knowingly, or recklessly without knowledge of its truth
2. with intent to mislead the other party
3. that induced assent to the k and
4. justifiable reliance

Question 33

Promissory Estoppel

Answer 33

PE is an equitable defense that will be granted if reliance upon a promise was reasonably foreseeable, there was actual inducement or forbearance, and detrimental reliance such that injustice can be avoided only by enforcement of the promise.

Question 34

Compensatory in Tort: Fraud

Answer 34

In most jurisdictions, the measure of recovery for fraud is the “benefit of the bargain” (i.e., the difference between the actual value received and the value that would have been received if the misrepresentation were true). Instead of basing the “loss of bargain” measure on the value of what the buyer received, the buyer can base his recovery on an amount equal to the cost of conforming the property to what he was promised. Some jurisdictions limit the plaintiff’s recovery to his out-of-pocket losses, (i.e., the difference between the amount that the buyer paid and the market value of what he received). A few jurisdictions allow the plaintiff to elect which measure to use.

Question 35

Expectation in K

Land Sales K

Answer 35

Expectation damages put the plaintiff in the place she would have been in had the breach not occurred.

In a land sales contract, when the seller breaches, the buyer receives the difference between the contract price and the market value as of the date of the breach.

Question 36

Consequential in K

Answer 36

In a breach of contract action, consequential damages are reasonably foreseeable losses to a nonbreaching party that go beyond expectation damages, such as loss of profits. Consequential damages are damages that arise out of special circumstances unique to the parties to the contract, rather than arising necessarily from the transaction itself.

Question 37

Restitution - Unjust Enrichment

Answer 37

To recover in restitution based on unjust enrichment, a plaintiff must have conferred a benefit on the defendant. The benefit must have yielded a measurable increase in the defendant’s wealth. The defendant’s retention of the benefit must be unjust. Often, the defendant’s retention of the benefit is unjust because the defendant has wrongfully acquired the benefit through theft, fraud, duress, or undue influence.