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Things to remember for the Bar > Remedies > Flashcards

Remedies Flashcards

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1
Q

TRO

A

an injunction for a short period of time

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2
Q

Under Federal rules, TRO expires

A

on the date set by the court, not to exceed 14 days after the entry of the order unless the court, extends for good cause or the adverse party consents.

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3
Q

Under CA rule a TRO issued without notice of the defendant generally cannot exceed

A

15 days.

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4
Q

A TRO may be obtained ex parte, which means no notice is afforded to the defendant. The primary purpose of a TRO is to

A

preserve the status quo until a preliminrary injunction can be held.

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5
Q

Can a TRO be appealed

When will a TRO be denied

A

No, but it is not effective until the D recieves notice of it

It is is uneforcebale

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6
Q

TRO Elements (Irish Lads Inhale Beer in Dublin)

A

Irreparable harm
Likelihood of sucess on the merits
Inadequate legal remedies
Balancing of hardships goes towards P
Defenses - None

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7
Q

Pre lim Injunction

A

an injunction issued before or during a trial that generally is effective until there is a final judgment by the court. Unlike a TRO, a preliminary injunction cannot be issued with the defendant give notice of the hearing an a opportunity to be heard. Plaintiff must show the same elements that are required for a TRO.

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8
Q

Speific preformance

A

contractual remedy by which a party to a contract is compellted by court order to render the promised performance or subisute. Generally it is not available unless there is a breach of contract.

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9
Q

For the court to grant a plaintiffs request for speific preformance (chocolate cheesecake is my favorite desert)

A

Valid contract
contract conditions are certain/clear
inadequate legal remedies
mutuality of performance
feasibility of enforcement
no defenses

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10
Q

Recession (equitable remedy) is the avoidance or unamking of a contract. P must show

A
  • grounds for recession
  • P sent notice to D as soon as grounds are discovered
    -return any benefits it received under the contract to D
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11
Q

Recession, which is only available to the wrong party is generally available when one party has a valid defense to the formation of a contract. Those are

A

mistake of fact
misrepresentation
Fraud

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12
Q

Being that recession is an equitable remedy the court has

A

broad discretion in deciding whether it should be awarded.

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13
Q

What will the court consider in the situtation in whcih they award recession

A

will considered the equities of the situation, taking into account the fairness of recession to both parties.

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14
Q

Because recession is an equitable remedy, it is subject to equitable defenses like

A

acquiescence, esotppel, laches, and unclean hands.

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15
Q

Fraud / Misrepresentation

A

A contract may be invlaid on the basis of fraud where 1) a party made a false statement of past or present fact, 2) the statement was either fraudulent or material to the contract and 2) the other party relied on that statement of fact entering into the contact

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16
Q

Doctrine of Mutual mistake

A

a contract may be invalidated where both parties are mistaken under a material fact that is the basic assumption of the contract

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17
Q

Doctrine of unilateral mistake

A

a contract may be invalidated where one party is mistaken about a material fact underlying the contract, and the other party knows or has reason to know about the mistake.

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18
Q

Laches

A

This defense applies where a claimant unreasonably delays in bringing the suit and where the suit prejudices the plaintiff.

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19
Q

Acquiescence

A

serves as a defense where the plaintiff has previously acquieseced to similar conduct on the part of the defendant for which the plaintiff is now seeking relief.

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20
Q

Unclean hands - equitable defense

A

P himself engaged in unethical or immoral acts relating to the K

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21
Q

Estoppel

A

where a defendant reasonably, foreseeably, and detrimentally relied on the plaintiffs statement that the plaintiff’s conduct is permissible and where its equitable defense to enforce that promise.

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22
Q

Reformation a court will not invalidate the contract in its entirety but rather

Who is it available to?

Is it always awarded

A

rewrite the contract to confirm it to the parties original intent.

Moreover, like recession, reformation is only available to the wrong party.

Because this is a equitable remedy, the court has broad decision in deviding whether it should be awarded.

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23
Q

Resitutionary remedies are appropriate where the tortfeasor

A

has been unjustly enriched by his activities.

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24
Q

Punitive damages

A

Awarded when the defendant has displayed willful, wanton or malicious tort conduct. Only awarded if actual damages are awarded, there is culpability, and relatively proportionate to the actual damages

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25
Q

Nominal damages

A

awarded when there is a violation of someone’s rights but there are no actual damages or if there is damages, the harm is slight

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26
Q

What are the 3 types of compensatory damages?

A

Expectation, Consequential, incidental

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27
Q

what potential issues can limit consequential damages

A

casuation, foreseeability, certainty or the duty to mitigate applies

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28
Q

You must prove Causation for Compensatory damages. Causation exists where

A

Damages must be caused by the tortious act ie be the actual but for cause

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29
Q

Foreseeable

A

natural and probable consequences of the tort or breach of contract or contemplated by the parties at the time the contract was formed.

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30
Q

Certainty

A

damages must be capable of being calculated with certainty and not overly speculative

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31
Q

For compensatory damages, you must prove it was Unavoidable. This means

A

A plaintiff has a duty to take reasonable steps to mitigate his losses

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32
Q

What are the 2 types of compensatory damages you can get in a tort

A

General damages and special damages

33
Q

General damages are

A

noneconomic losses directly attributable to the tort that all plaintiffs would have because they flow as a natural result of the tort

34
Q

Special damages

A

economic losses directly attributable to the tort that some plaintiffs may have and are unqiue to each plaintiff

Ex: medical damages, lost wages

35
Q

Measure of compensatory damages in a tort depends usually on

A

the value of the P’s harm

36
Q

FMV of compensatory damages applies in

A

conversion

37
Q

Comepnstation for loss and use of item at the time of deprivation is what tort damages

A

Tresspass to chattel

38
Q

Negligence damages

A

pain and suffering , lost wages

39
Q

Pure economic damages are not acceptance in torts byself unless its

A

intentional interference with business relations

40
Q

Replevin

What can P recover ?

A

allows recovery before trial of a specific chattel wrongfully taken from the P who has the right to possesion

Damages for the loss of use of his property

41
Q

Ejectment

A

used to recover specific real property from which a P has a right to possession was wrongfully excluded

42
Q

What are the damages calculated for repelvin

A

time that he was deprived of the chattle

43
Q

What are the damages calculated for ejectment

A

time he was deprived of the property

44
Q

constructive trust

A

compels the defendant to convey title to unjust retained speific property to the p and restore property to the P that has been wrongfully acquired by the D

45
Q

What does a constructive trust requires

A

wrongful act that lead the person to get the property
D has legal title to convey

46
Q

what is the cavet to the constructive trust when D has legal title to convey

A

if he is a theif and he got money you can ask for it back, but property you will not get legal title

47
Q

Arguments for inadequate legal remedy

A

Money damages too speculative
Insolvent D
Repelivin is unavailable bc property is sold
property is unique

48
Q

A constructive trtust can apply to

A

speific property acquired by the wrongdoer that is traceable to the wrongful behavior

49
Q

Limitations on constructive trust

A

P recieves the benefit of any increase in the property
Property must be solely traceable to current form (ie if you use money to remodel a house that is not your property, cannot get the house)
Lowest intermediate baelnce applies to the comingled funds

50
Q

Investor fiction

A

presumes a defnant invests his own money first

51
Q

Spender fiction

A

presumes a d spends his own money first

52
Q

Priority of a plaintiff over a 3rd party with interest

A

BFP prevails over P
P prevails over unsecured creditors

53
Q

Equitable linen

A

Gives the P a security interest in the property and the property acts as collateral for the money owed to the P. P acts as if he is a creditor

54
Q

unlike a constructive trust with an equitable linen it is acceptable to

A

trace the plaintiff’s property to different piece of property even if the two are comingled and p’s property was used to improve another piee of property properly owned by the D

55
Q

Are deficency judgements allowed in a constructive trust

A

No

56
Q

When is a constructive trust better

A

when the value of the wrongfully acquired proprty goes up to prevent unjust enrichment

57
Q

when is an equitable linen better

A

when the value of the wrongfully acquired proeprty does down bc they can get the deficiency judgement for the difference or when the property cannot be traced

58
Q

Permanet injunctions

A

Court order to preform an act or stop preforming an act after holding a full trial on the merits

59
Q

Elements for ordring a permanet injunction - I pray for big deserts

A

Inadequate legal remedy
Property interest
feasiability of enforcement
Balencing of hardships
Defense - none

60
Q

Feasiability of enforcement for a perm injunction

A

the injunction must not be too difficult for the court to enforce because it is an affrimative injunction or there is jursidictional issues

61
Q

Which injunctions are easier to enforce and why

A

negative bc the courts power to order contempt for noncompliance

62
Q

Examples of inadequate legal remedy for perm injunctions

A

Money damages are too speculative
Money damages are inadequate
Insolvent D
Repelvin or ejectment is unavailable
Multiciplity of suits occuring because this is an ongoing issue
Propsective tort is expected to occur
property is unique

63
Q

Expectation damages

Formula

A

compenstates the value P for the value of the benefit P expected to recieve from the K had the breaching party preformed.

the difference amount of price or the amount to be paid for a service or good under the contract and the amount of replacing (the market price) it,
plus any incidental damages, plus any foreseeable consequential damages, less any
amount saved by the non-breaching party.

64
Q

Potential limitation on contract expectation damages to reduce or eliminate damages

A

If the damages were not caused by the K breach
Unforseeable damages
Not certain
Failed to mitigate damages
Liquidated damages clause C

65
Q

Consequential damages seek to

A

compenstate for damages that are direct and foreseeable consequences of the contract not being preformed and are found in addition to expectation damages

66
Q

Incidental damages

A

costs reasonably incured when the other party is trying to remedy the breach

67
Q

Reliance damages

A

seek to put the P in the same positon he would have been had the contract never been made.

68
Q

when are reliance damages awarded

A

These are awarded in place of expectation damages when damages when the damages r to difficult to calculate

69
Q

Liquidated damages controls when

A

Damages are difficult to calculate and bears a reasonable relationship to the anticipated lost and is not a penalty

70
Q

Quasi contract

A

applies where there is no legally binding conttract but the D has derived a benefit and fairness requires payment to the P.

71
Q

How are damages measured in a quasi contract

A

value of the benefit unjustly enriched

72
Q

When can a quasi contract arise

A

no attempt to contract via emergency services
unefforceable contract
breached contract if P is not the breacher (traditional rule) or modernly with liits

73
Q

what r proper grounds for recession

A

fraud, material misrep or mutual mistake

74
Q

Mutuality of preformance

A

both parties to the K must be elligible to have their preformance under the K ordered by the court

75
Q

Typical damages for real property remedy

A

ejectment
injunction

76
Q

With an Encroachments what is the appropriate damages

A

damages, ejectment or injunction

77
Q

Voluntary waste is a deliberate, destructive act. Remedy for damages is

A

DMV or cost of repair and/or ununction

78
Q

Permissive waste occurs when the property is poorly maintained and remedy for damages is

A

cost of repair

79
Q

Amerliorative waste is where the present interest holder makes impermissible improvements to the property that actually enhance the value. Damages are

A

none because there is no loss in value but an injunction may arise

Things to remember for the Bar (21 decks)

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