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Remedies Flashcards

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1
Q

Legal Remedies (Tort) – Compensatory

A

Casual Foreplay Certainly Unavoidable

Causation Foreseeability Certainty, Unavoidable (Mitigation)

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2
Q

Specific Performance

A

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Valid contract
Performed or prepared to do so
Inadequate legal remedies (unable to secure substitute goods)
Feasibility of enforcement
Defenses (hardship, etc.)

(Sale of land to BFP cuts off specific performance

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3
Q

TRO/Preliminary Injunction

A

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Irreparable injury
Balance of hardships (unless willful)
Public interest favors granting
Likelihood of success on the merits

Maintain status quo until regular hearing can be held
May be granted without notice if strong showing as to why

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4
Q

Permanent Injunction

A

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Inadequate legal remedy (e.g. continuing wrong)
Protectable property right
Feasibility of Enforcement
Balance of hardships
Defenses
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5
Q

Defenses (Equitable Remedies)

A

ULUrU Has Every Feature Coveted

Unclean Hands
Laches
Undue Hardship/Unfairness
Equitable estoppel
Free speech
Crime (except if public nuisance)
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6
Q

Constructive Trust

A

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D has title to property
Through Wrongdoing of D
retention = Unjust enrichment
Inadequate legal remedy (insolvency sufficient)

No deficiency judgment allowed after imposition of constructive trust
Cut off by transfer to BFP

Equitable lien on lowest intermediate balance unless show D expressly intended the subsequent addition as restitution of P’s funds

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7
Q

Grounds for Rescission/Reformation

A

Mistake (Mutual or Unilateral)
Misrepresentation (Innocent/Fraudulent).

Sue for rescission before asserting damages. Claim for damages affirms K.

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8
Q

Undue Hardship

A

Inadequacy of Consideration, Marked Inequality Between Parties, and Unfair Advantage Exercised by the Plaintiff

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9
Q

Defenses to K Formation

A

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Statute of Frauds
Mistake/Ambiguity
Illegality
Incapacity
Unconscionability
Fraud (misrepresentation), Duress
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10
Q

Discharge of Duty (K)

A

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Impossibility, Impracticability
Frustration of Purpose
Modification
Mutual rescission
Novation
Accord & satisfaction
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11
Q

Contract Remedies

A

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Compensatory Damages
Consequential Damages
Restitution
Rescission or Reformation
Specific Performance
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12
Q

Mutual mistake

A

Mistake concerns basic assumption on which contract was made (essential element – parties, subject matter, consideration, offer and acceptance)
Mistake has material effect
party seeking avoidance did not assume risk

Unilateral mistake: mistake had material effect and mistaken party did not bear risk. Nonmistaken party did not know or have reason to know of mistake. Usually only computational errors.

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13
Q

Parol Evidence Rule (admissions)

A

Evidence concerning validity (formation defects, conditions precedent) (not performance)
Evidence used to interpret ambiguities
Evidence showing true consideration paid
Evidence in action for reformation

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14
Q

Anticipatory Repudiation

A

1) Executory bilateral contract (actions remain undone on both sides)
2) Unequivocal statement of nonperformance
3) Nonrepudiating party may:
a) sue immediately
b) suspend performance and sue when performance due
c) Treat repudiation as rescission
d) Urge performance

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15
Q

Contract (Offer)

A

Intent to make offer
Certain and definite terms
Communicated to offeree

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16
Q

Material Breach

A

Not received substantial benefit of bargain.

May sue immediately

17
Q

Land Sale K

A

Description of Land, Parties, and Price

K for services: nature of services and duration (no extrinsic evidence)

18
Q

Estoppel (K)

A

D’s conduct or promise foreseeably induces P to change position in reliance on oral agreement, may remove K from SoF

19
Q

Impossibility/Impracticability

Frustration of Purpose

A

Impossible (impossible for any one to perform)

1) Nonoccurence of event was basic assumption of parties
2) Neither party expressly assumed risk
3) contractual duties may be discharged if performance becomes impossible or impracticable

Impracticability – party has encountered extreme and unreasonable difficulty and/or expense and nonoccurrence of condition was basic assumption of the parties. Mere increase in costs usually insufficient.

FOP: 1) purpose of K becomes valueless due to supervening event not the fault of party seeking discharge. 2) Must not have reasonably foreseen the supervening event.

20
Q

Replevin

A 
Goods identified (specifically) in contract
After reasonable effort unable to secure adequate substitute or such effort would be unavailing

or If partial payment or purchased for personal, family, or household purposes

Not a remedy when no guarantee sheriff can recover
Available at commencement of action and before trial if a pre-seizure judicial hearing is held

21
Q

Material vs. Minor Breach

A

Look at breach of particular provision but also totality of deviations

Extent to which nonbreaching party will receive benefit he expected
Extent to which nonbreaching party can be compensated in damages
Hardship to breaching party if K is terminated
Extent to which negligent or willful
Extent to which breaching party has performed and likelihood of full performance

22
Q

Encroachment

A

1) Legal remedy inadequate (land unique). Consider ejectment
2) Balance of hardships

3) Continuing trespass - damages = rental value of occupied land
Permanent trespass – damages are market value of land occupied by structure

23
Q

Conversion

A

1) act by D that interferes with P’s right of possession in chattel
2) serious enough to warrant paying full value
3) intent to perform the act bringing about the interference
4) causation

FMV at time of conversion

Trespass to land: reasonable value of use of land

BFP can be liable for conversion if obtains from thief (no title to give)

24
Q

Equitable lien

A

DTUI

Downtown Taxis Under Influence

D misappropriated P’s property
P’s property can be Traced to property held by D
Retention = unjust enrichment
Legal remedy is inadequate

Appropriate where value decrease. Priority over unsecured creditors
Cut off by transfer to BFP

25
Q

Restitution

A

Conferred benefit on D
With Reasonable expectation of being compensated for value
D knew or had reason to know of P’s expectation
D would be unjustly enriched

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