Remedies Flashcards
Contract - Compensatory Damages
(1) Benefit of the Bargain
(2) Consequential
(3) Reliance
(4) Incidental
(5) Liquidated
Benefit of the Bargain (Expectancy)
(1) Difference between Market Price and Contract Price
(2) Seller Breaches - additional market price above contract price
(3) Buyer Breaches - Difference between K price and cost of sale/production
Lost Volume Seller Damages
(1) Someone who can sell as many of an item as they can find buyers
(2) If buyer says no, damage is the lost profit on the item—EVEN if resold
Contracts Damages Requirements
(1) Causal
(2) Foreseeable
(3) Certain
(4) Unavoidable
NOT for Benefit of the Bargain damages
Consequential Damages
(1) Damages that flow from a breach of K, OTHER than the cost of sale, profit and purchase price
(2) DO the 4 parter
Reliance Damages
(1) Put party in position they would have been in had the contract not formed in the first place, like out of pocket expenses
(2) ONLY available if BoB are too speculative, OR there is no contract. Otherwise, expectancy.
Incidental Damages
Reasonable Expenses from shipping, care, and custody of the goods, or reselling after breach for the seller.
Incidental Damages
Reasonable Expenses from shipping, care, and custody of the goods, or reselling after breach for the seller.
Liquidated Damages
(1) Parties stipulated amount
(2) Upheld if damages will be EXTREMELY DIFFICULT TO ASCERTAIN and amount is REASONABLE forecast
Purchase Ks (no more than 6-10%), SErvice (approx. of lost profit)
Contract Damages Strategy
(1) BoB - Difference K Price and Market, or cover
(2) Lost Future Profits, Consequential, or Reliance - 4 factor analysis
(3) K never performed or BoB too speculative, reliance
(4) Liquidated damages - extremely difficult to ascertain/reasonable forecast/proportional
Contract - Equitable Remedies
(1) Specific Performance
(2) Rescission
(3) Reformation
(4) Injunction
(5) Declaratory Judgment
Specific Performance
(1) Valid K with Definite & Certain Terms
(2) Party met all conditions, or performance excused
(3) Legal remedy is inadequate
(4) Court supervision
TRO
Elements for PI PLUS immediate harm
Preliminary Injunction
(1) Irreparable Injury
(2) Likelihood of Success
(3) Balance of Hardships favors Injunction
TRO adds Immediate Harm
Recission - Undoing Contract
When P offers to tender back consideration, the contract can be undone if:
(1) Mistake (mutual/unilateral)
(2) Misrepresentation
Reformation
Grounds:
(1) Mutual/Unilateral Mistake or
(2) Mistake of Law as to the legal meaning of terms
(3) Fraud
Declaratory Relief
Rights & obligations of a party to a contract
Tort Damages
(1) General Foreseeable from the Injury
(2) Special Damages NOT foreseeable
(3) Punitive Damages
Tort Damages Elements
(1) Causal
(2) Foreseeable at time of breach
(3) Certain
(4) Unavoidable
Punitive Damages
(1) Willful and wanton conduct
(2) amounting to fraud, oppression, or malice.
CANNOT be grossly excessive
Permanent Injunction
(1) Legal remedy is inadequate
(2) Court enforcement
(3) Balance of hardships favors injunction
Property Remedies
(1) Damages
(2) Injunction - Trespass/Nuisance
(3) Waste
Waste
(1) Voluntary - Injunction, Damages for lessened value
(2) Permissive - Damages for lessened value
(3) Ameliorative - Cost of restoration
Quasi Contract
For - Illegal/Unenforceable Contract OR wrongful retention or obtaining of property
Replevin
Common Law
- Recover prejudgment possession
UCC
- Type 1: Buyer unable to obtain equal goods for identified ones
- Type 2: Buyer paid, Seller didn’t deliver and went insolvent OR goods for family purposes
Ejectment
Remedy to restore possession of real property
MUST bring it during statutory period or else adv. possession
Constructive Trust
(1) Wrongdoer wrongfully obtains title
(2) Sole obligation now is to convey title to the plaintiff
P gets benefit of increase/appreciation of value
Does not apply to comingling UNLESS wrongdoer obtains through theft/embezzlement
Equitable Lien
commingles her own funds with
(1) the funds misappropriated from P and maintains commingled funds in an account, or
(2) uses the funds to improve property, or
(3) sells title acquired with misappropriated funds and commingles those proceeds
P gets lowest intermediate balance
IF wrongful act, and comingled funds used to acquire title, P can get pro-rata share
Purchase Money Resulting Trust
(1) Supply of consideration but lack of title creates presumption of resulting trust in P.
(2) D rebuts presumption by evidence of
(a) gift
(b) loan
(c) payment of debt
Defenses to Remedies
(1) Laches
(2) Unclean Hands
(3) Sale to BFP
(4) No Injunction
