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Selected Topics Midterm > Remedies > Flashcards

Remedies Flashcards

1
Q

Contract - Compensatory Damages

A

(1) Benefit of the Bargain
(2) Consequential
(3) Reliance
(4) Incidental
(5) Liquidated

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2
Q

Benefit of the Bargain (Expectancy)

A

(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

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3
Q

Lost Volume Seller Damages

A

(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

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4
Q

Contracts Damages Requirements

A

(1) Causal
(2) Foreseeable
(3) Certain
(4) Unavoidable

NOT for Benefit of the Bargain damages

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5
Q

Consequential Damages

A

(1) Damages that flow from a breach of K, OTHER than the cost of sale, profit and purchase price

(2) DO the 4 parter

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6
Q

Reliance Damages

A

(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.

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7
Q

Incidental Damages

A

Reasonable Expenses from shipping, care, and custody of the goods, or reselling after breach for the seller.

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8
Q

Incidental Damages

A

Reasonable Expenses from shipping, care, and custody of the goods, or reselling after breach for the seller.

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9
Q

Liquidated Damages

A

(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)

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10
Q

Contract Damages Strategy

A

(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

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11
Q

Contract - Equitable Remedies

A

(1) Specific Performance

(2) Rescission

(3) Reformation

(4) Injunction

(5) Declaratory Judgment

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12
Q

Specific Performance

A

(1) Valid K with Definite & Certain Terms

(2) Party met all conditions, or performance excused

(3) Legal remedy is inadequate

(4) Court supervision

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13
Q

TRO

A

Elements for PI PLUS immediate harm

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14
Q

Preliminary Injunction

A

(1) Irreparable Injury

(2) Likelihood of Success

(3) Balance of Hardships favors Injunction

TRO adds Immediate Harm

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15
Q

Recission - Undoing Contract

A

When P offers to tender back consideration, the contract can be undone if:

(1) Mistake (mutual/unilateral)

(2) Misrepresentation

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16
Q

Reformation

A

Grounds:
(1) Mutual/Unilateral Mistake or
(2) Mistake of Law as to the legal meaning of terms
(3) Fraud

17
Q

Declaratory Relief

A

Rights & obligations of a party to a contract

18
Q

Tort Damages

A

(1) General Foreseeable from the Injury

(2) Special Damages NOT foreseeable

(3) Punitive Damages

19
Q

Tort Damages Elements

A

(1) Causal

(2) Foreseeable at time of breach

(3) Certain

(4) Unavoidable

20
Q

Punitive Damages

A

(1) Willful and wanton conduct
(2) amounting to fraud, oppression, or malice.

CANNOT be grossly excessive

21
Q

Permanent Injunction

A

(1) Legal remedy is inadequate

(2) Court enforcement

(3) Balance of hardships favors injunction

22
Q

Property Remedies

A

(1) Damages

(2) Injunction - Trespass/Nuisance

(3) Waste

23
Q

Waste

A

(1) Voluntary - Injunction, Damages for lessened value

(2) Permissive - Damages for lessened value

(3) Ameliorative - Cost of restoration

24
Q

Quasi Contract

A

For - Illegal/Unenforceable Contract OR wrongful retention or obtaining of property

25
Q

Replevin

A

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
26
Q

Ejectment

A

Remedy to restore possession of real property

MUST bring it during statutory period or else adv. possession

27
Q

Constructive Trust

A

(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

28
Q

Equitable Lien

A

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

29
Q

Purchase Money Resulting Trust

A

(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

30
Q

Defenses to Remedies

A

(1) Laches
(2) Unclean Hands
(3) Sale to BFP
(4) No Injunction

Selected Topics Midterm (13 decks)

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