Remedies Flashcards
Expectation Damages
– Arise directly from the breach and put the non-breaching party in the position they would have been in if the contract had been performed.
To recover from expectation damages, you must show
1) caused by the D
2) Foreseeable
3) certain
4) unavoidable
What must the P show when asking for expectation damages that if they dont it can lower their damages
that they make a reasonable effort to mitigate in order to be compensated
Reliance damages
Arise from expenditures made by a party in reliance of a contract and attempt to put the non-breaching party in the position it would have been if the contract never existed.
When are reliance damages allowed
when the plaintiff acted in reliance and the plaintiff’s reliance was foreseeable.
If expectation damages are too speculative,
the court may award reliance damages instead, but never both.
Consequential damages
Damages that are unique to an individual party but are the natural and foreseeable consequences of a contract breach or are contemplated by the parties when contracting
To recover from consequential damages the damages must be
the damages must be reasonably foreseeable, unavoidable and certain.
Nominal damages
Recoverable when no actual injury is sustained, however if actual injury is a required element of the claim, nominal damages cannot be recovered.
Incidental damages
- Reasonable costs incurred as a result of a breach of contract (i.e. costs of returning nonconforming goods or caring/storing non-conforming goods).
Punitive damages
May be awarded if clear and convincing evidence establishes the defendant acted willfully, wantonly, recklessly or with malice. Not generally available in contract actions.
Restitution
equitable remedy that protects against another party’s unjust enrichment. It restores a benefit conferred on the other party to a contract.
Replevin
legal remedy that permits the plaintiff to recover, before trial, possession of specific chattel wrongfully taken or detained.
Ejectment
legal remedy to restore possession of real property from which a plaintiff was wrongfully ousted.
Reformation
A court may reform a contract to conform to the parties’ original intent.
when is reformation available
Modifies a written K so as to conform with the partie’s orginal understandaig. Needs
1) valid K
2) Grounds for reformation - misrep, mutal and unilateral mistake
3) no defenses
Parol Evidence is admissible to prove misrepresentation or mistake.
when is reformation not available
in cases where unclean hands or laches are evidenced.
Recession
treats the contract as cancelled due to problems in formation such as fraud or misrep
Specific performance
A court may order a party to perform when there is 1) a valid contract with clear and definite terms; 2) no adequate legal remedy; 3) feasible enforcement; 4) mutuality of performance; 5) no valid defenses. Typically, not allowed for services, usually applicable to real estate.
Inadequate legal remedies for money damages
– Legal (monetary) damages are inadequate if they are 1) speculative; 2) the defendant is insolvent; 3) multiple suits would be necessary; or 4) the item bargained for is unique.
Feasiable enforcement
A court will not specifically enforce a promise if enforcement imposes a burden on the court that is disproportionate to the advantages gained from enforcement and the harm to be suffered from its denial
Specific performance unfairness factors
1) defenses
2) hardships
3) inadequate consideration
4) unconscionability
Defenses that will affect a remedy
unclean hands, laches, equitable estoppel, free speech, injunction sought against a D is a crime
TRO
An emergency remedy used to maintain the status quo (for 10 days in state courts, or 14 days in Federal courts, normally, but can be extended) pending the outcome of a hearing.
TRO moving party must show
The plaintiff must establish: (1) irreparable harm if the TRO is not granted and (2) likelihood of success at trial 3) balancing of the hardships favors the moving party
Prelim injunction (DEF)
Maintains the status quo pending the outcome of litigation and issues after a notice and a adversal hearing
Prelim injunction elements
1) show likelihood of success on the merits; 2) a likelihood of irreparable harm; 3) balancing of the hardships in favor of the non-movant; 4) provide notice to the moving party; and 5) provide a bond should the case fail.
Perm injunction
A permanent court order which requires a person to do something or refrain from doing something after a trial on the merits.
perm injunction elements
1) inadequate remedy at law; 2) a property interest; 3) feasibility of enforcement; and 4) a balancing of hardships.
Equitable lien
secures priority payment of debt owed to plaintiff over other creditors by imposing a lien on 1) wrongfully obtained property traced to the plaintiff; 2) where the defendant holds title and is unjustly enriched.
when should you ask for a equitable lien
when the property value goes down in value
when should you ask for a constructive trust
when the property value goes up
Constructive trust
The court will require the defendant to hold the property as a trustee and then return it to the plaintiff. Available when the defendant wrongfully acquired title and would be unjustly enriched if allowed to keep the property. Money is also property for purposes of a constructive trust.
Laches
A plaintiff is barred from recovery when there is an unreasonable delay between when plaintiff learned of the injury/breach and when the action was brought, and the defendant was prejudiced by this delay.
Unclean hands
plaintiff is barred from recovery when the plaintiff is guilty of unethical, unlawful or otherwise improper conduct related to the subject of the lawsuit.
Mitigation of damages
A plaintiff cannot recover damages as a result of a breach that could have been avoided without undue risk, burden or humiliation.
Equitable Estoppel
May bar enforcement of a contract where one party reasonably and justifiably relies to his/her detriment on the other party’s previous conduct.
Attachment
Process by which another’s property is seized in accordance with a writ or judicial order for the purpose of securing a potential judgment. Often a tool used when attempting to sue someone that may go insolvent.
Liquidated damages
Damages as specified in the contract. To be valid, actual damages must be difficult to calculate and the amount specified in the contract clause must be a reasonable approximation of damage, and not a penalty.
