Remedies

Question 1

What is included in Compensatory damages for torts?

Answer 1

1) Compensate a plaintiff for their injury or harm. Includes pain and suffering, medical expenses, and lost wages

Question 2

What are compensatory damages for contracts?

Answer 2

Expectation damages; plus,
any consequential damages, plus
any incidental damages.

Reduced if the plaintiff fails to mitigate

Question 3

What is the formula for compensatory damages in contracts?

Answer 3

Expectation damages + consequential damages + incidental damages - failure to mitigate - cost avoided.

Question 4

What are expectation damages?

Answer 4

subset of compensatory damages to put the injured party in the same position as if the contract was performed (torts and contracts)

Question 5

What are consequential damages?

Answer 5

reasonably foreseeable damages other than expectation damages that are related to the tort or breach of contract. (tort and contract)

Question 6

What are the three elements of consequential damages?

Answer 6

1) Foreseeability
2) causation
3) certainty

Question 7

What are incidental damages?

Answer 7

costs associated with non-breaching parties attempts to remedy the breach. (contract0

Question 8

what are nominal damages?

Answer 8

cause of action is established but harm is slight. (Contract and Torts)

Question 9

What are reliance damages?

Answer 9

damages the non-breaching party incurs by relying upon the promise that the other party would perform. Can’t have both reliance and expectation damages. (contracts)

Question 10

What are punitive damages and constitutional limit?

Answer 10

Meant to punish a defendant who engaged in serious misconduct with an improper state of mind. Constittuional limit: must not impose grossly excessive punishment on a party (no more than 9:1) court will consider reprehensibility of the D’s conduct, the ratio, and the D’s net worth. (Torts, rarely contracts)

Question 11

What is restitution

Answer 11

Measured by the benefit conferred on the D by the P and awarded under the theory of unjust enrichment. Can recover restitution and compensatory damages. (contract and torts)

Question 12

What are liquidated damages?

Answer 12

Damages that are agreed upon by parties during the formation of a contract. Generally enforceable if the amount is reasonable and not so high as to be a penalty.

Question 13

What are the limitations on damages?

Answer 13

1) Actual Cause (torts and contracts): but’for test
2) Proximate cause (torts)
3) Certainty (torts and contracts): damages must be established with reasonable certainty.
4) Duty to mitigate (torts and contracts)
torts: duty to seek medical attention and treatment
contracts; duty to cover, duty seek reasonable alternate employment
5) Benefit Plaintiff received from breach (but not collateral sources of payment)

Question 14

What are 5 equitable remedies?

Answer 14

1) injunctive relief (torts and contracts)
2) Specific Performance (contracts)
3) Rescission (contracts)
4) Reformation (contracts)
5) Restitution (Torts and contracts)

Question 15

What are two types of injunctive relief?

Answer 15

1) prejudgment remedy
2) post-judgment remedy

Question 16

What are two types of Prejudgement injunctive relief?

Answer 16

1) Temporary restraining order (TRO): does not require notice to D or opportunity to be heard. 14 days max federal rules, 15 days max CA. Assume federal rules.
2) Preliminary injunction: effective until final judgment of the court. D must be given notice and opportunity to be heard.

Question 17

What are the 4 elements of a preliminary injunction?

Answer 17

1) Irreparable harm if no injunction. (money damages does not equal irreparable harm). Real property or unique itmes do
2) Balancing the hardships. P must show that his hardship outweighs D.
3) Likelihood of success on the merits. Is P likely to win at trial.
4) Enforceability: Must be feasible for court to enforce.

Question 18

What is a permanent injunction and what are the elements?

Answer 18

After P has won a case, a permanent injunction is granted t prevent the violation of P’s rights or to restore the P rights that have been violated.

P must show:
1) irreparable harm if not granted.
2) The hardships if the injunction is not issued will be significantly greater than the hardships on the defendant and the third parties fi the injunction is issued.

Question 19

What are the 6 elements of specific performance?

Answer 19

1) Must be a valid contract
2) The terms of the contract must be certain and clear.
3) Non-breaching part met conditions or conditions excused so no breaching party’s performance is now due.
4) Money dames are inadequate.
5) Its feasible for the court to enforce and supervise. (no service contracts or rise to indentured servitude under the 13th A.)
6) No defenses exist

Question 20

What are two categories of contract-based defenses?

Answer 20

1)formation
2) performance

failure of SoF
Fraud
Unilateral mistake
etc.

Question 21

What are two equitable defenses?

Answer 21

1) Laches: P waited too long and delay resulted in prejudice
2) Unclean Hands: P engaged in unethical or immoral acts relating to contract.

Question 22

What are 4 types of restitution?

Answer 22

1) Money damages (legal remedy)
2) Constructive trust (equitable remedy)
3) Equitable lien
4) Purchase money resulting trust (Equitable remedy)

Question 23

What is a constructive trust?

Answer 23

A judicially created remedy that imposes a duty to convey specific property to the P if the D would be unjustly enriched by retaining the property.

Question 24

What are the 3 elements to a constructive trust?

Answer 24

1) D holds the title to the property that is subject to the trust,
2) D’s retention of the property would unjustly enrich the D; and
3)Legal (monetary) remedy is inadequate.

Question 25

What is an equitable lien?

Answer 25

Forced sale of D’s property; P receives money from sale.

Does not allow increase in value but if sale does not cover the value owed P can see the additional money from D.

Question 26

What is purchase money resulting trust?

Answer 26

Occurs when one party purchases property and obtains title, but another party supplied all or part of the consideration to buy the property.

Question 27

What is a replevin?

Answer 27

When the D takes the P’s personal property, the P may pursue a replevin action to order the D to return property. (Replevin action can include both return of property and damages for loss of use)

• Torts: recover money from D that was misappropriated (conversion) or obtained by fraud.
  -Contracts: recover property, such as goods, from the D that P is legally entitled to under the K.

Question 28

What is Ejectment (Legal Remedy)?

Answer 28

Ejectment is brought to regain possession land held by another. (generally by establishing title to the land and the right to immediate possession of it).

Question 29

What are the 4 remedies for trespass to land?

Answer 29

1) If not harm, P is entitled to nominal damages.
2) Injunction: P may seek INJUNCTION to prevent future trespass.
3) Restitution:
a. conscious wrongdoer = restitution for all gains obtained by the D through trespass.
b. innocent or negligent trespasser = reasonable rental value or cost of license.
4) Ejectment

Question 30

What are three remedies for trespass with addition to land (dumping)?

Answer 30

1) Compensatory damages measured either by:
a. the value of the use of th eland that was lost (rental value); or
b. the cost of restoring the land to its pre-trespass condition.
2) Injunction to remove the additions
3) Restitution.
a. Conscious wrongdoes = all gains obtained by D
b. Innocent or negligent = reasonable rental value or cost of license.

Question 31

What are two remedies for injury to land

Answer 31

1) Compensatory damages. Measured by either:
a. cost to repair property, plus loss of use.
b. decrease in the value of the land
2) Injunction to prevent further harm to property

Question 32

What the 5 remedies for trespass to chattel/conversion

Answer 32

1) compensatory damages:
a. trespass to chattels
1. decrease in value of property; or
2. reasonable cost to repair or restore plus comp for loss of use.
b. conversion: fair market value of property immediately prior to use
2) Replevin: regain possession and recover damages
3) Constructive trust/ equitable lien: primarily used whe the D is a fiduciary who converts the P’s property or when the D obtains the P’s property through fraud, duress, or undue influence.
4) Restitution
5) injunction: P must establish the property is unique

Question 33

What are the five remedies for misappropriation of Money (conversion)?

Answer 33

1) Money damages: compensatory. Can seek punitive if malice.
2) Restitution: (conscious wrongdoer must also return gains on money)
3) Replevin: return of misappropriated monies.
4) Constructive trust /equitable lien.
5)Purchase money resulting trust

Question 34

What is the remedy for personal injury (Intentional torts, negligence, strict liability)?

Answer 34

Compensatory damages: Pain and suffering, medical expenses, lost wages

Question 35

What are 6 remedies for financial harm (intentional misrepresentation/fraud; negligent misrepresentation)?

Answer 35

1) Money damages:
a. compensatory
1. Fraud
A. Loss of bargain; difference between promise and fair market value of
received.
B. out of pocket; difference between was was paid the fair market value of
what was received.
2. Neg mis = out of pocket
b. Consequential damages
c. punitive damages
2) Reformation
3) Rescission
4) Replevin
5) Restitution
6) Constructive trust/equitable lien

Question 36

What are the 5 remedies for breach of land contracts?

Answer 36

1) Money damages
a. Compensatory
1. Seller breach: buyer is entitled to difference between contract price and fair
market value of land.
2. Buyer breach: Seller is entitled to difference between market value and
contract price.
b. consequential: loss profits if buyer had K in place to re-sell. Cost incurred for
seller to resell.
2) Specific performance
3) Rescission and restitution
4) Reformation:
5) Injunctive relief: buyer can seek TRO to keep seller from selling to third party.

Question 37

What are all Contracts remedies?

Answer 37

1) Money
a. compensatory
b. nominal
c. reliance
d. restitution
e. liquidated
f. limitations
2) Equitable
a. injunctive relief
b. specific performance
c. rescission
d. reformation
e. equitable defenses
3) Restitution
a. money
b. constructive trust/equitable lien
c. purchase money resulting trust
d. equitable defenses
4) Replevin

Question 38

What are all tort remedies?

Answer 38

1)Money
a. compnsatory
b. nominal
c. Punitive
e. restitution
f. Limitations
i. duty to mitigate, (causation, foreseeability, certainty)
2) Equitable
a. injunctive relief
b. equitable defenses
Unclean hands; laches
3) Restitution
a. money damages
b. constructive trust / equitable lien
c. purchase money resulting trust
d. equitable defenses
4) Replevin
5) Ejectment