Remedies Flashcards
Compensatory
Money Damages
Tort: compensate for harm and injury - pain and suffering, med expenses, lost wages
K: take form of expectation damages and meant to compensate as if k had been performed - based on k price and FMV of performance
Consequential
Money Damages
Reasonably foreseeable damages other than expectation that are of consequence to the tort or breach of k
Must be:
1. Foreseeable: natural and probable consequence of tort or breach
2. Causation: damages were cause by the D’s breach or tort
3. Certainty: P must prove $ amount with reasonable certainty, cannot be too speculative
Reliance in K
Money Damages
Incured in reasonable reliance upon the promise that other party would perform
Cannot recover reliance and compensatory
Incidental in K
Money Damages
Damages that arise when the non-breaching party is trying to remedy the breach (like cost of finding replacement buyer/performer)
Nominal in Tort and K
Money Damages
P established elements in COA but the harm or loss is slight, P may be awarded a nominal amount of money
Punitive in Tort and K
Money Damages
Meant to punish the D who engages in serious misconduct with an improper state of mind (malice). Not usually granted in K actions
Restitution in Tort and K
Money Damages
Measured by the benefit conferred on the D by P and awarded on an unjust enrichment theory
Cannot recover both restitution and compensatory, must choose one
Limitations on Damages
Always begin with Limitations
Causation
1. Actual: torts and k
2. Proximate: torts
Certainty (torts and k): must be established with reasonable certainty. (new biz loss profits? no certainty)
Avoidable Consequences/Duty to Mitigate (torts and k): P duty to avoid or mitigate by minimizing harm or seeking replacements/ substitutes
1. P held to standard of reasonable conduct
2. Failure to mitigate will reduce the damages recovered by the P
Injunctive Relief in Torts and K
Equitable Remedies
Court order directing a person to act or refrain from acting. It can be used to maintain the status quo until further judicial proceedings can take place
TRO
Preliminary
Permanent
TRO and Prelim Injunction in Torts and K
Prejudgement Equitable Remedies
TRO is a pre-judgment injunction sought to prevent irreparable harm for a short period of time and issued to maintain the status quo until a prelim injunction hearing is held. No notice to D required.
Prelim Injunction is one issued before trial that is effective until the final judgment of the court. D must be given notice and an opportunity to be heard.
P must show:
1. P will suffer irreparable harm if not issued
2. Money damages inadequate
3. Balance hardships on P if injunction not issued vs on D if issued
4. P likelihood of success on the merits
5. Enforceability - feasible for the court to enforce the injunction
Permanent Injunction in Torts and K
Equitable Remedies
After P has won case, perm injunction granted if P can show:
1. Irreparable harm if injunction not granted
2. Balance of the harships if issued vs not issued
Specific Performance in K
Equitable Remedies
The non-breaching party can ask the court to order the breaching party to perform if:
- Valid K
- The terms of the k must be certain and clear
- Non-breaching party has satisfied so not the breaching party’s performance is now due
- Money damages inadequate - look for unique items/land
- Feasible for the court to enforce
- No defenses: unclean hands/laches
Rescission in K
Equitable Remedies
Rescission is the avoidance or unmaking of a k.
- Grounds for recession (mistake, misrep, fraud) - analyze
- P must give notice of rescission to D as soon as grounds are discovered
- Return or deliver any of the benefits of the k
- After court grants rescission, P can bring actions for replevin (recovery of specific property) or restitution (monetary compensation for the value of property)
Reformation in K
Equitable Remedies
Reformation is the judicial rewriting of a k or other document to reflect the parties’ true intent
- Mutual Mistake: both parties were mistaken as to the content or effect of a writing, court may rewrite
- Unitlateral Mistake: if one party is mistaken as to the content or effect, reformation is allowed if the other party is aware and either fraudulently induced or did nothing to correct
Equitable Defenses in Tort and K
Equitable Remedies
Laches: P waited unreasonably long to bring action and it prejudiced the D
UH: P himself engaged in unethical or immoral acts relating to the k
