Remedies

Question 1

Expectation Damages

Answer 1

– 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.

Question 2

To recover from expectation damages, you must show

Answer 2

1) caused by the D
2) Foreseeable
3) certain
4) unavoidable

Question 3

What must the P show when asking for expectation damages that if they dont it can lower their damages

Answer 3

that they make a reasonable effort to mitigate in order to be compensated

Question 4

Reliance damages

Answer 4

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.

Question 5

When are reliance damages allowed

Answer 5

when the plaintiff acted in reliance and the plaintiff’s reliance was foreseeable.

Question 6

If expectation damages are too speculative,

Answer 6

the court may award reliance damages instead, but never both.

Question 7

Consequential damages

Answer 7

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

Question 8

To recover from consequential damages the damages must be

Answer 8

the damages must be reasonably foreseeable, unavoidable and certain.

Question 9

Nominal damages

Answer 9

Recoverable when no actual injury is sustained, however if actual injury is a required element of the claim, nominal damages cannot be recovered.

Question 10

Incidental damages

Answer 10

• Reasonable costs incurred as a result of a breach of contract (i.e. costs of returning nonconforming goods or caring/storing non-conforming goods).

Question 11

Punitive damages

Answer 11

May be awarded if clear and convincing evidence establishes the defendant acted willfully, wantonly, recklessly or with malice. Not generally available in contract actions.

Question 12

Restitution

Answer 12

equitable remedy that protects against another party’s unjust enrichment. It restores a benefit conferred on the other party to a contract.

Question 13

Replevin

Answer 13

legal remedy that permits the plaintiff to recover, before trial, possession of specific chattel wrongfully taken or detained.

Question 14

Ejectment

Answer 14

legal remedy to restore possession of real property from which a plaintiff was wrongfully ousted.

Question 15

Reformation

Answer 15

A court may reform a contract to conform to the parties’ original intent.

Question 16

when is reformation available

Answer 16

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.

Question 17

when is reformation not available

Answer 17

in cases where unclean hands or laches are evidenced.

Question 18

Recession

Answer 18

treats the contract as cancelled due to problems in formation such as fraud or misrep

Question 19

Specific performance

Answer 19

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.

Question 20

Inadequate legal remedies for money damages

Answer 20

– 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.

Question 21

Feasiable enforcement

Answer 21

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

Question 22

Specific performance unfairness factors

Answer 22

1) defenses
2) hardships
3) inadequate consideration
4) unconscionability

Question 23

Defenses that will affect a remedy

Answer 23

unclean hands, laches, equitable estoppel, free speech, injunction sought against a D is a crime

Question 24

TRO

Answer 24

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.

Question 25

TRO moving party must show

Answer 25

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

Question 26

Prelim injunction (DEF)

Answer 26

Maintains the status quo pending the outcome of litigation and issues after a notice and a adversal hearing

Question 27

Prelim injunction elements

Answer 27

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.

Question 28

Perm injunction

Answer 28

A permanent court order which requires a person to do something or refrain from doing something after a trial on the merits.

Question 29

perm injunction elements

Answer 29

1) inadequate remedy at law; 2) a property interest; 3) feasibility of enforcement; and 4) a balancing of hardships.

Question 30

Equitable lien

Answer 30

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.

Question 31

when should you ask for a equitable lien

Answer 31

when the property value goes down in value

Question 32

when should you ask for a constructive trust

Answer 32

when the property value goes up

Question 33

Constructive trust

Answer 33

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.

Question 34

Laches

Answer 34

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.

Question 35

Unclean hands

Answer 35

plaintiff is barred from recovery when the plaintiff is guilty of unethical, unlawful or otherwise improper conduct related to the subject of the lawsuit.

Question 36

Mitigation of damages

Answer 36

A plaintiff cannot recover damages as a result of a breach that could have been avoided without undue risk, burden or humiliation.

Question 37

Equitable Estoppel

Answer 37

May bar enforcement of a contract where one party reasonably and justifiably relies to his/her detriment on the other party’s previous conduct.

Question 38

Attachment

Answer 38

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.

Question 39

Liquidated damages

Answer 39

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.