Remedies Flashcards
Damages must be considered first followed by ________.
Restitution
Compensatory damages aim to give each party __________.
The benefit of her bargain
Recovery for compensatory damages is the amount necessary to ___________.
Put the party in the place she would have been in had the contract been performed
The measure of compensatory damages is __________ - __________.
Market price - contract price
What are the requirements of compensatory damages?
- Contract breach caused damages
- Damages were foreseeable at formation
- Damages must be established with certainty
- P had duty to mitigate
Mitigation expenses can be recovered even if __________.
Those particular expenses are not connected to a successful mitigation attempt
What are consequential damages?
Related damages foreseeable at contract formation
What are the elements of consequential damages?
- Naturally arose from breach AND
- Reasonable foreseeable
P is only entitled to nominal damages when __________.
There is a breach but no actual proof of damages
Punitive damages are not available for breach of contract unless __________.
P characterizes D’s conduct as a tort as well as a breach of contract
What is a liquidated damages clause?
Damages for breach are specified directly in the contract
What are the two requirements for a valid liquidated damages clause?
- Actual damages difficult to estimate AND
- Figure is a reasonable forecast of fair compensation
Liquidated damages are invalid if interpreted as _______.
A penalty
If a liquidated damages clause is interpreted as a penalty, then:
- It will be invalidated AND
- Actual damages will be awarded
A liquidated damages clause that gives an option of either _____ or _____ is invalid.
Actual damages
Liquidated damages
Under contract law, quasi-contract is used to prevent _________.
Unjust enrichment of D
What must P and D do before quasi-contract arises?
- P has rendered performance AND
- D breaches
When a contract is unenforceable, P can recover _________.
The value of the benefit conferred to D
P may recover the value of the benefit conferred even if its value is higher than _________.
The rate stipulated in the contract
Under quasi-contract may recover specific property conferred to D only if:
- Property is unique OR
- D was insolvent
If there is a material breach, the nonbreaching party can recover ____________.
The value of the benefit conferred to D even if the value is greater than the contract rule
Unjust enrichment cannot exceed the contract price when:
- All the work giving rise to the claim has been completed AND
- The only remaining obligation is the payment of the contract price
If there is a material breach, under quasi-contract, P may recover specific property conferred to D only if:
- Property is unique OR
- D insolvent
Under modern law, may a materially breaching party recover?
Only the value of the benefit conferred to the nonbreaching party; reduces by damages
What is required for compensatory damages in tort law?
- Causation
- Certainty
- Unavoidable
What is the but-for test for causation for compensatory damages in tort law?
But for D’s breach of duty, P wouldn’t have been injured
Damages must be proven with reasonable _________.
Certainty
Between future and past damages, which has a higher certainty threshold?
Past damages
Future damages must be shown to be ________.
More likely to happen than not
Between special damages and general damages, which require certainty?
Special damages
What is the duty to mitigate?
P has an affirmative duty to take reasonable steps to mitigate damages
Can you split up compensatory damages for torts?
No; must be a lump sum
Special future damages must be discounted to _________.
Present value
How does inflation play into calculating compensatory damages?
It doesn’t
What are nominal damages?
Very small damages awarded to show that the loss/harm suffered by P was technical rather than actual
Why are punitive damages awarded?
To punish D in an effort to reform/deter D and similar persons from pursuing similar action in the future
What are the requirements for punitive damages?
- Attached to compensatory, nominal, or restitutionary damages AND
- Wanton, willful, or malicious conduct
What are the constitutional limitations on punitive damages?
Must be relatively proportionate to actual damages
Few awards exceeding ________________ between punitive and compensatory damages will satisfy due process.
Single-digit ratio
Few awards exceeding single-digit ratio between __________ and _________ damages will satisfy due process.
Punitive
Compensatory
Restitutionary damages are designed to __________.
Prevent unjust enrichment
Restitutionary damages are calculated by ____________.
Looking at the value of the benefit conferred to D
What is replevin?
Restitutionary remedy that allows P to recover chattel wrongfully taken
When replevin occurs, ________ repossesses P’s personal property.
Sheriff
What are the elements of replevin?
- P has a right to possession AND
- D is wrongfully withholding P’s chattel
When is replevin available?
Available before trial
P must _______ for replevin to be permitted before trial
Post bond
D can defeat P’s right to replevin before trial by ___________.
Posting a redelivery bond
What damages are available under replevin?
- Recovery of property
- Compensatory damages
- Restitutionary damages
A subsequent __________ cuts off the right to replevin.
Bona fide purchaser
What is ejectment?
Legal remedy that allows P to recover possession of real property
What are the elements of ejectment?
- P has right to possession AND
- D is in wrongful withholding and possession
What damages are available under ejectment?
- Recovery of possession
- Compensatory damages
- Restitutionary damages
Equitable remedies are addressed after _____ and _____.
Legal remedies
Legal restitutionary remedies
Equitable remedies are available only if _______ are insufficient
Legal remedies
Equitable restitutionary remedies are available when:
- Legal remedies are inadequate AND
- D has wrongfully acquired title to property
What is a constructive trust?
Passive, temporary arrangement in which trustee (D)’s sole duty is to transfer title/possession to P
The court imposes a constructive trust on ______.
P’s property
In a constructive trust, _______ serves as trustee
D
When is a constructive trust used?
- When property appreciates after wrongful taking
- D’s property can be solely traced back to P’s property
What is an equitable lien?
Lien imposed on P’s property by the court that subjects the property to an immediate court-ordered sale of property
Who receives the proceeds of a sale stemming from an equitable lien?
P
When will an equitable lien be used?
- Property depreciates
- D’s property improved with P’s property
- Property not solely traceable to P
If a sale from equitable lien provides proceeds that are less than FMV of the property when it was taken by D, then _________.
P will be entitled to a deficiency judgment for the remainder
If D sells wrongfully-acquired property under an equitable restitutionary remedy, P may __________.
Trace the proceeds of the sale
Where there is an equitable restitutionary remedy, P will prevail over _______.
Other unsecured creditors
In regards to equitable restitutionary remedies, P is an unsecured creditor for the purpose of any deficiency judgment if _____________.
The sale proceeds are less than the properpty’s FMV
In the sale of an equitable restitutionary remedy, a __________ will prevail over P.
Bona fide purchaser
Who is a bona fide purchaser in connection to an equitable restitutionary remedy?
An innocent party who purchases property w/o notice of any other party’s claim to the property’s title
What is an injunction?
A pure equitable remedy that a party may use to stop another party from acting (or force another party to act in a certain manner)
When is a permanent injunction awarded?
After a full trial on the merits
What makes an injunction different from a permanent injunction?
It’s not provisional
When deciding whether to award a permanent injunction, a court will not balance hardships unless ________.
The injunction pertains to a nuisance/trespass on the land
What are the required elements for a permanent injunction?
- Inadequate legal remedy
- Property right/protectable personal interest
- Feasibility of enforcement
- Balance of hardship
When will monetary damages be inadequate, thus warranting a permanent injunction?
- Too speculative
- D is insolvent
- Irreparable injury OR
- Multiplicity of litigation
What three remedies must be inadequate in order for legal remedy to be inadequate, thus justifying the use of a permanent injunction?
- Monetary damages
- Replevin
- Ejectment
What is the modern rule regarding the “property right or protectable personal interest requirement” for permanent injunction?
Court will award injunctions to enforce any protectable personal interests
An injunction is either mandatory or ________.
Prohibitory
What is a mandatory injunction?
Requires a party to act
What is a prohibitory injunction?
Prevents a party from doing certain acts
Prohibitory injunctions are easier for the court to enforce because _______.
D will be required only to stop acting in a certain manner as opposed to being required to do something in an affirmative matter
The court will use its powers of _______ to enforce injunction.
Contempt
Enforcement of mandatory injunctions is problematic because of:
- Difficulty of supervising D AND
- Difficulty of ensuring D’s compliance
Injunctions requiring D to act with great ______, ______, or ________ are unenforceable.
Taste
Skill
Judgment
Injunctions for series of acts ___________ will be denied.
Over a period of time
For whom is an injunction for an out-of-state action enforceable?
D who is resident of a state
Under the minority view, courts will not balance hardships unless:
Injunction pertains to:
1. Nuisance
2. Trespass to land
Courts will deny an injunction if the hardships to ______ substantially outweigh those to _______.
D
P
When hardships to D substantially outweigh those to P, the court will award P _______.
Monetary damages
When considering a permanent injunction, courts will typically balance the hardship to P and D unless _________.
D’s conduct was intentional
In addition to hardship to P and D, courts will also consider hardship to ______ before granting an injunction.
The public
If P is denied an injunction on the balancing of hardship, the court will award ______.
Monetary damages
What is laches?
Unreasonable delay by P, causing undue prejudice to D
The laches period may be shorter than _______.
The statute of limitations
Under laches, ______ will be denied, but P may be awarded _______.
Equitable relief
Monetary damages
Under the laches defense, equitable relief will be denied, but P may be awarded monetary damages unless _______.
The statute of limitations has tolled
In regards to laches, the statute of limitations begins to run when _________.
P has knowledge of injury
What is the unclean hands defense?
P isn’t entitled to obtain equitable remedy because P acted….
1. Unethically OR
2. In bad faith
…with respect to the subject of P’s action against D
What are the maxims of equity?
One who comes into equity must come with clean hands
P’s “unclean hands” must be related to ________ to be a valid defense.
the subject of the suit
How is the freedom of speech a defense to injunctions?
Prevents injunctions against:
1. Defamation
2. False light
3. Private life
How is freedom of association a defense against injunctions?
Injunction won’t be granted if it interferes with the internal management of an association
Injunctive relief is not available to enjoin crimes unless _______.
The crime is also a tort
An injunction against criminal prosecution won’t be granted unless:
- P will experience irreparable harm
- Criminal statute is unconstitutional
What is a preliminary injunction?
Injunction by a court prior to determining a legal case to restrain a party from conduct until the case is decided
What is the purpose of a preliminary injunction?
Preserve the status quo
What are the elements of a preliminary injunction?
- P must demonstrate substantial likelihood of success
- Substantial threat of irreparable harm/injury
- Balance of harms weighs in favor of P
- P posts bond
- Notice is required
What is a temporary restraining order?
Temporary decree issued to preserve the status quo for the period leading up to the hearing on the preliminary injunction.
Courts will not typically _______ under a temporary restraining order
Balance the hardships
What are the elements required for a temporary restraining order?
- P faces imminent, irreparable harm
- TRO for status quo
- Limited to 14 days
- P must post bond
Is notice required for a temporary restraining order?
No
______ proceedings are allowed for determining the requirements of a temporary restraining order.
Ex parte
What parties are bound by an injunction?
- D
- Agents of the parties with notice
- 3rd parties with notice
What are subsequently invalid injunctions?
Injunctions that are no longer valid due to a change in the circumstances
Are parties bound to a subsequently invalid injunction?
Yes, until the court:
1. Modifies OR
2. Dissolves
…the injunction
What civil contempt powers will be used to enforce an injunction?
- Fines
- Imprisonment (D released when D obeys injunction)
What criminal contempt powers will be used to enforce an injunction?
- Fines
- Imprisonment (D released after duration of sentence)
What happens where there is rescission
Contract is voided and rescinded
Grounds for rescission are all issues relating to ________.
Contract formation
What are grounds for rescission?
- Mistake
- Misrepresentation
- Undue influence
- Lack of capacity
- Lack of consideration
- Duress
- Illegality
Rescission won’t be granted on grounds of unilateral mistake unless:
- Other party knows/should have known of the other’s mistake
- Mistaken party would suffer undue hardship
Rescission will be granted regarding mutual mistake of ________.
Material fact
Rescission will be granted on misrepresentation if P can demonstrate _________.
Actual reliance on a material misrepresented fact
What are valid defenses to rescission?
- Laches
- Unclean hands
What is an invalid defense to rescission?
Negligence of P
Recission is only allowed if P sues for ___________ before ____________ (or at the same time).
Rescission
Damages
What is reformation?
Court alters the parties’ written agreement to conform with the parties’ original intent/understanding
A ______ contract is required for reformation.
Valid
Unilateral mistake is not grounds for reformation unless ________
Other party knows of the other’s mistake
Reformation may be granted for both _______ and _______ misrepresentations
Innocent
Intentional
What are the valid defenses to reformation?
- Unclean hands
- Laches
- Subsequent bona fide purchaer
What defenses to reformation are invalid?
- Parol evidence rule
- Statute of frauds
- Failure to read
- Negligence of P
What is specific performance?
Enforcing the terms of a valid contract
Specific performance is a ______ decree by the court.
Mandatory
Specific performance requires D to ___________.
Perform what he promised under the original contract
What are the requirements for specific performance?
- Valid contract
- P’s contractual conditions must be satisfied
- Legal remedies inadequate
- Mutuality
- Enforcement feasible
- No defenses
A valid contract requires:
- An offer
- Acceptance
- Consideration
- Certain/definite terms
Even more so than with monetary damages, specific performance requires that contract terms be __________.
Specific and definite
To obtain the remedy of specific performance, P must have fulfilled _________.
All of her conditions under the contract
How does P fulfill all conditions under a contract (so as to obtain specific performance)?
- Already performed
- Ready, willing, and able to perform
- Performance excused
What is a “time is of the essence” clause?
Requires timely performance of the contract
A “time is of the essence” clause is a _________ condition of ________ performance.
Contractual
Timely
If a “time is of the essence” clause contains a ______ provision, a court will be very reluctant to enforce that provision.
Forfeiture
If P is the seller and there are deficiencies in performance, specific performance is only available for:
- Minor defect
- Cured material defect
If there is deficiencies in performance, specific performance is always available to P if she is _______.
The buyer
If specific performance is granted, the court will reduce _______ in order to _______.
The contract price
Account for the deficiency
Before allowing specific performance, the courts require that ______ must be inadequate.
Remedy at law
When is remedy at law inadequate so as to allow specific performance?
- Issue is unique
- Damages are too speculative
- D is insolvent
- There will be a multiplicity of suits
Why would a unique item create a need for specific performance?
P cannot go anywhere else to buy the unique item
Is personal property unique?
Generally, no
Under what circumstances will personal property be considered unique?
- Very rare
- Personal significance to buyer
- Unique circumstances at time of litigation
What kind of property is always considered unique for the purposes of specific performance?
Land
A seller of land can get specific performance for land contracts as unique items even though _________
She is only expecting money in return
How do the maxims of equity apply to multiplicity of litigation?
Equity will take jurisdiction to avoid a multiplicity of suits
Historically, courts have required that, for a party to seek specific performance, the party they are seeking it against must be entitled to _______.
Specific performance.
This isn’t really a thing anymore
Historically, a party couldn’t seek specific performance unless the party they were seeking it against was also entitled to specific performance.
Now, court apply what test?
Security of performance test
What is the security of performance test?
As long as the court can secure the performance of both parties to its satisfaction, specific performance may be issued
Requiring ____________ is a common way for the court to feel secure that both parties will perform
Simultaneous performance
Is specific performance available for personal service contracts?
No
What is the doctrine of unclean hands?
Bars equitable relief to anyone who engages in wrongful conduct connecting to the subject matter
How do the maxims of equity apply to the unclean hands defense?
One who comes into equity must come with clean hands
To be a valid defense to specific performance, P’s unclean hands must be related to ________.
Lawsuit at hand
How does laches affect specific performance?
Bars equitable remedies when:
1. A party unreasonably delays AND
2. Delay causes prejudice
In regards to specific performance, laches begins to run from the time ________.
P has reason to know of the injury
What are the requirements for the unconscionability defense to specific performance?
- Inadequate consideration
- Marked inequality AND
- Unfair advantage
Unconscionability is assessed at the time of ________.
Contract formation
Mistake can be a contract defense to specific performance except where _______
The contract provides for compensation in the event of a mistake
Unilateral is only a mistake to specific performance when ____________.
- One party is mistaken AND
- The other party knew/had reason to know of that party’s mistake
What is a misrepresentation?
Any false assertion or intentional concealment of material information
When a party is induced to enter into a contract based on fraud/misrepresentation, then ________.
The contract may be voidable in whole/in part at the election of the defrauded party
Nondisclosure doesn’t amount to misrepresentation unless ___________.
There is a duty to disclose facts
According to the statute of frauds, certain contracts must be in writing before specific performance can be required unless:
- Valuable part performance AND
- In reliance on the contract
In a sale of land contract, equitable conversion takes place upon _______.
Execution of contract
Define equitable conversion.
Property interests of the buyer/seller are switched
After equitable conversion, seller is entitled to ___________ property interest.
Personal
After equitable conversion, buyer i entitled to ______ property interest.
Real
Where there is death after equitable conversion, seller is entitled to personal property because __________.
There is no more real property interest after execution
Where there is death after equitable conversion, buyer is entitled to personal property because __________.
Buyer obtains this interest after execution
After equitable conversion, the majority view is that the risk of damages or destruction falls on ________.
The buyer
After equitable conversion, the modern view is that the risk of damages or destruction falls on ________.
Seller
A valid contract in a land-sale agreement requires a writing with ________.
All essential terms
The statute of frauds requires that a contract for a land sale be in writing unless :
- P has rendered valuable part performance AND
- In reliance of the contract
Valuable part performance requires:
2 of 3
1. Payment
2. Possession
3. Valuable improvements/services
Terms are clear and definite when a court is able to ________.
Enforce the terms
For a land-sale contract to be clear and definite, a contract must contain:
- Parties
- Definition of property
- Time for performance
- Purchase price
A “time is of the essence” clause requires ___________.
TImely performance of the contract
A “time is of the essence” clause only applies if it is _______________ in the contract.
Expressly stated
How do the maxims of equity apply to “time is of the essence” clauses?
Equity abhors forefeiture
A court will be very reluctant to enforce a “time is of the essence” clause if it contains a _______ provision.
Forfeiture
Even a seller can get specific performance of a land sale contract even though _______.
All the seller is expecting in return is money
Specific performance of a sale of land contract is available for defects if:
- Minor
- Material, but cured
Specific performance on a contract for sale of land is available for _______ regardless of whether a defect is minor or material.
Buyer
If the specific performance of a sale of land contract is granted, the court will reduce a contract price to ________
Account for the deficiency
Legal damages for a sale of land contract are inadequate when ________.
There is a contract for a subject matter that is unique
Why is land held to be a unique subject matter?
Because no two lots of land are the same, even if they appear to be
Why is specific performance generally denied to non-UCC personal property
Personal property is not considered unique
Non-UCC personal property interests are considered unique only if:
- Very rare
- Personal significance to buyer
- Unique circumstances at time of litigation
Before acceptance of a UCC contract, what remedies are available to a buyer?
- Cancel contract OR
- Specific performance for unique goods
If a buyer cancels a contract under the UCC before acceptance, what damages are available?
- Cover OR
- Market damages
After acceptance of a UCC contract, what remedies are available to a buyer?
- Keep nonconforming goods and recover consequential damages OR
- Revoke contract for material uncured breach and recover cover/market
Before acceptance of a UCC contract, what remedies are available to a seller?
Withhold goods AND
1. Resell and recover difference between contract and resale price
2. Sue for contract price
3. Volume seller recovers lost profits
After acceptance of a UCC contract, what remedies are available to a seller?
- Sue for contract price
- Replevin
Why is replevin available to a seller after acceptance of a UCC contract?
Because if the buyer accepts the goods but never pays, it is a wrongful withholding
What remedies are available for construction contracts?
- Compensatory damages
- Restitution
- Specific performance
Restitution is only available under construction contracts for _______ unless _____________.
The builder
The owner has paid the builder in advance
Specific performance is only available to _______ in a construction contract.
An owner
What remedies are available for personal service contracts?
- Compensatory damages
- Restitution
Restitution is generally only available for personal service contracts for _________ unless _____________.
Employee
Employer has paid the employee in advance
Covenants not to compete are specifically enforceable if:
- Covenant protects a legitimate interest AND
- Is reasonable in geographic & durational scope
What remedies are available for trespass?
- Nominal damages
- Restitutionary damages
- Injunctive relief
What remedies are available for encroachment?
- Compensatory damages
- Injunctive relief
- No restitutionary remedies
Compensatory damages for continuing trespass are _______.
Rental value of the land
Compensatory damages for permanent trespass are _________.
Fair market value of the land
Injunctive relief is only available for encroachment if that encroachment is _______.
Inadvertant
__________ remedies are not available for encroachment.
Restitutionary
What remedies are available for destruction or injury?
- Compensatory damages
- Destruction
Compensatory damage for injury cannot be _________.
Greater than diminution
Compensatory damages for destruction are based on ___________.
Fair market value at time of destruction
What damages are available for destruction of or interference with easements?
- Compensatory damages
- Injunctive relief
Compensatory damages for destruction of easements are based on ________.
Diminution of value of land attached to the easement
Compensatory damages for interference with easements are based on ________.
Cost of restoration + loss of use + any related expenses
Injunctive relief will only be granted for the destruction of/interference with easements if ________.
Legal remedy is inadequate
What damages are available for voluntary waste?
- Compensatory damages
- Injunctive relief
Compensatory damages for voluntary waste are based on:
- Diminution in value OR
- Cost of repairs
What damages are available for permisive waste?
Compensatory damages only
Compensatory damages for permissive waste are based on _______.
Cost of repairs
What remedies are available for nuisance?
- Compensatory damages
- Injunctive relief
Compensatory damages for nuisance are based on ________.
Value of loss of use/enjoyment + abatement costs + emotional distress
Compensatory damages for nuisance are measured from _____ to ______.
Time the nuisance began
Time of the action
When will injunctive relief be available for negligence?
- Multiplicity of suits
- Land is unique
__________ remedies are not available for nuisance.
Restitutionary
Coming to the nuisance is not a defense to:
- Injunction
- Damages
What remedies are available for the destruction of personal property?
Compensatory damages
Compensatory damages for the destruction of personal property are based on ________.
FMV at time of destruction - salvage + interest
When it comes to the destruction of personal property, loss of use is available if the destroyed chattel was __________.
Income-producing property
Compensatory damages given for the injury of personal property are based on:
- Cost of repair OR
- Diminution in value
What remedies are available for dispossession?
- Compensatory damages
- Restitutionary damages
- Equitable remedies
Compensatory damages for conversion are calculated based on _______.
FMV at conversion + interest + expenses incurred trying to recapture the chattel
Compensatory damages for minor dispossession are calculated based on:
- Nominal damages OR
- Damages for loss of use
Restitutionary damages are only available for dispossession if ___________.
D derived benefit from P’s personal property
Modern law limits the use of reasonable force to recapture chattels to situations where _____________.
P is in “hot pursuit” of D
Under quasi-contract, remedy for dispossession is calculated based on __________.
FMV of chattel at time of dispossession
D must acquire title in order for ______ or _______ to be an available remedy for dispossession.
Constructive title
Equitable lien
D must ________ in order for constructive trust to be an available remedy for dispossession.
Under dispossession, mandatory injunction is available as an equitable remedy if __________.
The goods are unique
In order to grant special damages for personal injuries, the damages must satisfy _________.
The certainty requirement
What types of remedies are available for personal injuries?
- Compensatory damages
- Injunction
No ____ payments are allowed for compensatory damages for personal injury
Installment
Special future damages must be discounted to ________ for compensatory damages for personal injury?
their present value
Injunction is rarely awarded for personal injury because:
- Harm has already occurred AND
- No real threat of repetition
Under fraud, what remedies are available?
- Damages
- Restitution
In order to provide damages for fraud, P must prove _______.
Actual injury
Consequential damages for fraud are available if ___________.
Actual injury is shown
Punitive damages for fraud are available if ___________.
Malice is shown
What forms of restitution are available for fraud?
- Constructive trusts OR
- Equitable liens
