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
Restitution in Torts and K
Legal/Equitable Remedies
Legal and equitable remedies through resitution are available if the defendant has been unjustly enrichedat the P’s expense. The P must have conferred a benefit on the D and the D must have been unjustly enriched.
Money Damages in Tort and K
Restitution
Measured by the benefit conferred on the D by the P.
Money in the amount of benefit. If for goods and services can be based on the cost to the P of providing the benefit, FMV of benefit, or the price listed in the agreement
Replevin
Resitution
Equitable Lien
Restitution
An EL is a judicially created remedy that imposes a lien on the defendant’s property. The P is not seeking to take ownership of the D’s property, but rather claiming a creditor-like interest on the property. P must prove:
- D holds title to the property
- D’s retention of property would unjustly enrich the D
- The legal remedy is inadequate
Tracing - P can trace property from its original form to current form
No increase in value - if P’s money used to purchase property, P would only be entitled to the amount of money that the D received from P under EL theory
Additional Satisfaction - if P has an equitable lien on D’s house that was purchased with plaintiff’s money, P would be able to force the sale of the house and receive the money owed
Defenses: laches and UH
Under CT theory, P could just take the property
Replevin
Restitution
Allows the P to recover personal property from D. The P regains possession of the property and can recover damages for the loss of use of his property
Available Remedies for Harm to Land
Trespass to Land, Injury to Land, Nuisance
Tort
Money Damages
1. Compensatoy (cost to repair or loss in value)
2. Nominal
3. Consequential
4. Punitive
Injunction
Restitution
Available Remedies for Harm to Personal Property
Trespass to Chattels, Conversion
Tort
Money Damages
1. Comensatory (cost to repair or loss in value)
Replevin
CT/EL
Restitution
Injunction
Available Remedies for Misappropriation of $
Conversion
Tort
Money Damages
1. Compensatory
2. Punitive
Restitution
Replevin
CT/EL
Available Remedies for Personal Injury
Intentional Torts, Negligence, SL
Tort
Money Damages
1. Compensatory - pain and suffering, medical expenses, lost wages
Available Remedies for Financial Harm
Intentional Misrepresentation, Negligent Misrepresentation
Tort
Money Damages
1. Compensatory - loss or bargain or out of pocket
2. Consequential Damages
3. Punitive
Reformation
Rescission
Replevin
Restitution
CT/EL
Available Remedies for Land Contracts
Contracts
Money Damages
1. Compensatory - difference between k price and market value of land
Specific Performance
Rescission
Restitution
Available Remedies for Personal Property (Goods) Contracts
Contracts
Money Damages
1. Compensatory - difference between k price and FMV of goods, cost of cover (difference between k price and cost of substitute), lost profits
2. Consequential
3. Incidental
Specific Performance
Replevin
Restitution
Available Remedies for Building (Construction) Contracts
Contracts
Money Damages
1. Compensatory - loss of value or cost to complete/fix building defect, loss of profit
Rescission
Restitution
Available Remedies for Employment Contracts
Contracts
Money Damages
1. Compensatory - salary or wages under the k
2. Consequential
3. Incidental
4. Limitations: avoidable consequences
Rescission
Restitution
Injunctive Relief to enforce a Covenant not to compete
Available Remedies for Mistake/Misrepresentation in Contract
Contracts
Reformation
Restitution
Money Damages
Kinds and for what COA
- Compensatory - T/K
- Consequential - T/K foreseeable, causation, certain
- Reliance - K
- Incidental - K
- Punitive - T/K rare
- Restitution - T/K
LIMITS** causation (actual (t and k)/prox (t)), certain (t/k), duty to mitigate (t/k)
Equitable Remedies
Kinds and for what COA
Injunctive Relief (t/k)
1. TRO
2. Prelim Injunction
3. Perm Injunction
Specific Performance (k)
Rescission (k)
Reformation (k)
Defenses: laches and UH, t/k
Restitution Based Remedies
Kinds and for what COA
Money Damages t/k
Contructive Trusts t/k
Equitable Lien t/k
Replevin t/k
Defenses: laches, UH, t/k
