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Remedies Flashcards

1
Q

Spotting a Remedies Question

A

The “call-of-the-question” line will do one of three things:
a. Use the word “remedies,”
b. Use the word “relief,” or
c. State a specific remedy, like specific performance or an injunction.

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2
Q

Three Step Approach

A

Determine area of law involved
—Usually torts, contracts, or both
—What type of tort or contract?
Make sure P will win
—P won’t get remedy unless P wins
Determine remedies

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3
Q

Order of Discussing Remedies

A

Legal remedies
Restitutionary remedies
Equitable remedies

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4
Q

Tort Remedies: Three Basic Fact Patterns

A

Only compensatory damages are available.
Only restitutionary damages available
Both available

Can’t Do Both
Analyze both and pick which is higher

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5
Q

Tort Legal Remedies: Types of money damages

A

Compensatory
Nominal
Punitive

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6
Q

Tort Compensatory Damages

A

Puts injured party in position they would have been in but for the tort.

Four requirements:
Actual causation
Foreseeable (Proximate Causation)
Certainty
—-Past losses require more certainty
—-Historical records help
—-Future damages must be more likely than not (all or nothing rule)
Unavoidability (mitigation)

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7
Q

Personal Injury Torts: The Certainty Rules: Economic Losses (Special Damages)

A

Basic certainty rules apply here, meaning the damages calculation must be made with sufficient certainty.

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8
Q

Personal Injury Torts: The Certainty Rules: Non-economic Losses (General Damages)

A

Basic certainty rules do not apply here. The jury may award any amount it wishes within the judge’s instructions.

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9
Q

Form of Judgment Payment

A

The award must be a single lump sum payment.
Installment payments are not allowed.

Two Calculation Items
The award must be discounted to present value.
Inflation is not taken into account under the traditional rule.

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10
Q

Form of Judgment Payment Sentence

A

“The judgment was be a single lump sum payment discounted to present value without taking inflation into account except under the more modern rule.”

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11
Q

Tort Nominal Damages

A

No injury, but vindicates P’s rights

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12
Q

Torts Punitive Damages

A

To punish D

Three requirements:
1. Cannot stand alone, must attach to another type of damages
2. Willful, wanton, or malicious conduct is required by D
3. Awarded proportionate to actual damages
—-Ratio should be no more than 10 to 1.

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13
Q

Restitutionary Remedies Purpose

A

Because D should not be unjustly enriched

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14
Q

Restitutionary Damages

A

Based on amount of benefit to D

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15
Q

Replevin

A

P recovers possession of personal property
Two part test:
P has right to possess
There was a wrongful withholding

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16
Q

Replevin: Timing and Bonds

A

P can recover chattel before trial
P must first post bond
Money to compensate D if P was wrong

D can defeat immediate recovery by posting a redelivery bond.
D can keep chattel until trial
Sheriff repossesses, no self help

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17
Q

Ejectment

A

P recovers possession of real property

Two part test:
P has right to possess
There was a wrongful withholding

Available only against D who has possession of property
Sheriff does ejectment

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18
Q

Equitable Restitutionary Remedies

A

Tip: If D has title, think constructive trust or equitable lien

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19
Q

Constructive Trust

A

D serves as trustee and must return to P

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20
Q

Equitable Lien

A

Immediate sale with proceeds to P
Then can use deficiency judgment against D if less than value

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21
Q

Rules for Constructive Trusts and Equitable Liens

A
  1. Must show inadequate legal remedy alternatives
    —-D insolvent
    —-Unique property
  2. Tracing allowed
    —Ie, recover money from sold property
  3. BFPs prevail over P
  4. P prevails over unsecured creditors
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22
Q

Which to Use: Constructive Trusts and Equitable Liens

A

Property value goes up → Constructive Trust
Property value goes down → Equitable Lien

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23
Q

Injunctive Relief

A

D must do or refrain from action

Tip: Determine preliminary/temporary injunction or permanent
Permanent happens after trial, preliminary issued pending trial
Permanent is most common

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24
Q

Preliminary Injunction

A

Two part test:
Irreparable injury
—-Timeframe context, needs relief now
Balancing of hardships
—-P’s likelihood of success

Bond requirements–reimburse D if wrong
Notice to D

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25
Temporary Restraining Order
Like a preliminary injunction but even faster Issued pending a hearing for a preliminary injunction Two part test: Irreparable injury ----Timeframe context, needs relief immediately Balancing of hardships P’s likelihood of success ----Much higher burden Bond requirements–reimburse D if wrong Must make a good faith effort to give D notice but don’t have to TROs limited to 10 days in state and 14 in federal
26
Permanent Injunctive Relief Test
1. Must be inadequate legal remedy alternatives 2. Feasibility of enforcement 3. Balance of hardships 4. Defenses
27
Permanent Injunctive Relief Test: Why Money Damages Could Be Inadequate
Why Money Damages Could Be Inadequate: Too speculative Insolvency Irreparable injury (true irreparable injury) Multiple actions (been prior history of litigation between parties)
28
Permanent Injunctive Relief Test: Feasibility of enforcement
Negative Injunction: D must stop doing something Mandatory Injunction: D must do something ----Enforcement problems here a lot Ie, great taste, skill, or judgment will deny the injunction as its too subjective Court has no power over D (ie they live out of state)
29
Permanent Injunctive Relief Test: Balance of hardships 4 rules
Four rules: 1. Must be gross disparity between D’s detriment and P’s benefit 2. No balancing of hardships if D’s conduct was willful 3. Ordinary negligence, consider awarding P money damages even if denying injunction 4. Hardship to the public
30
Permanent Injunctive Relief Test: Defenses
Unclean hands Laches Impossibility Free Speech
31
Permanent Injunctive Relief Test: Defenses: Unclean hands
Must be related to the lawsuit
32
Permanent Injunctive Relief Test: Defenses: Laches
Running of a period of time defense, concerned with the effect of the passage of time How prejudicial is the passage of time to D Clock starts to run when P learns of the injury Delay cuts off right to relief when both: Unreasonable and Prejudicial to the D
33
Permanent Injunctive Relief Test: Defenses: Free Speech
Big for defamation Usually deny based on free speech
34
Miscellaneous: Crimes
Equity will not enjoin a crime
35
Who Bound by Injunction?
Parties Employees/agents with notice Others acting in concert with notice
36
Erroneous Injunction
Party has to obey regardless Go to court and get it modified or resolved
37
Contempt
Issued for disobeying court order Two types: Civil Contempt Tool to coerce parties to comply with injunction Fine or imprisonment Criminal Contempt Punishment for failing to comply with injunction Exam Tip: Injunctive relief is almost always coupled with damages
38
Tort Analysis Walkthrough
Has P been injured? Compensatory damages Has D benefited? Restitution → unjust enrichment Does P want property back? Replevin Ejectment Is P still being harmed? Injunction IFBD
39
Contract Remedies Available
Legal Remedies: Compensatory damages Restitutionary remedies Equitable Remedies: Specific performance Rescission Reformation
40
Contract Compensatory Damages Elements
Elements: Causation Foreseeability at K formation Certainty Mitigation
41
Direct damages
are those that flow directly from the harm. Calculation: Substitute contract - original contract
42
Consequential damages
are available for related damage that was foreseeable at the time of contract formation Foreseeable at contract formation Indirect consequences of breach Calculation: Lost profits Only if communicated the special circumstances for performance so they’re foreseeable
43
Nominal Damages
Allowed but rare
44
Contract Punitive Damages
Not allowed But if willful, could be fraud
45
Liquidated Damages
Two part test for validity: Damages are difficult to ascertain at time of K formation Liquidated damages amount was a reasonable forecast of damages Too high? It’s a penalty and invalid. If valid, then only these damages are available. If invalid, still could get actual damages. Clause that says one could get actual or liquidated: invalid clause
46
Contract Restitutionary Remedies
Prevent unjust enrichment Usually seen after part performance of K Restitutionary remedies apply if contract is: --Unenforceable --Breached
47
Contract Restitutionary Remedies: K Unenforceable Remedies
Value of the benefit can be recovered Value of full services recovered, not K specific P can get property back if unique or D insolvent
48
Contract Restitutionary Remedies: K Breached Remedies: P is Non-Breaching Party
Value of the benefit can be recovered Value of full services recovered, not K specific P can get property back if unique or D insolvent
49
Contract Restitutionary Remedies: K Breached Remedies: P is Breaching Party
Traditional view = no recovery Modern view = recovery allowed Cannot be greater than contract amount Liable for damages suffered by D as a result of the breach
50
Specific Performance
Requires D to perform the K Five part checklist: 1. K must be valid, certain, and definite 2. Conditions of P are fulfilled 3. Inadequate legal remedy 4. Feasibility of enforcement 5. Defenses
51
Specific Performance: K must be valid, certain, and definite
More certain than for money damages
52
Specific Performance: Conditions of P are fulfilled
Seller can only enforce if their defect is minor and D got most benefits Buyer can enforce even if major defect, unless very major = missing half or more of promised consideration Court will lower purchase price Abatement: Reduction of price because of defect Time is of the essence also implicated Look for forfeiture clause if time not met When in doubt, follow the maxim: equity abhors forfeitures If only minor deviation, likely will award specific performance
53
Specific Performance: Inadequate legal remedy
Speculative, insolvency, multiple suits, etc. Unique property All land is unique Personal property is usually not unique Exception if: Rare or one of a kind Of personal significance or Unique due to special circumstances Liquidated damages clause Does not make money damages adequate, except if clause provides liquidated damages are only remedy
54
Specific Performance: Feasibility of enforcement
Personal service contracts not specifically available
55
Specific Performance: Defenses
Unconscionability ----Tested at time of formation Mistake Misrepresentation If one has rendered valuable part performance in reliance on the contract, the statute of frauds no longer applies and specific performance will be granted ----Valuable services
56
Rescission
Voids the contract Grounds for rescission: Mistake Misrepresentation Coercion Undue Influence Lack of capacity Failure of consideration Illegality
57
Rescission: Mistake
Mutual Mistake Mutual mistake of material fact, rescission granted Mutual mistake of collateral fact, rescission denied Unilateral Mistake Rescission denied Unless: Non-mistaken party knows of the mistake
58
Rescission: Misrepresentation
Rescission granted
59
Rescission: Defenses
Unclean hands Laches Negligence will not defeat rescission
60
Rescission: P sues for damages first
If P sues for damages first, then rescission is not allowed If P sues for rescission first, then damages are allowed
61
Rescission: Availability of restitution
If a plaintiff who is entitled to rescission has previously rendered performance on the contract (for example, performance of services, advance on purchase price), they can get compensated for it or get the property back via restitution.
62
Reformation
Changes the contract to the party’s original understanding 3 Steps: Meeting of the minds (valid contract) Grounds for reformation ---Mutual mistake ---Unilateral mistake if other party actually knew of mistake Defenses ---Unclean hands ---Laches ---Negligence, SOF, parol evidence rule are NOT defenses
63
Contract Remedies Roadmap
P injured? Compensatory damages D benefited? Restitutionary remedies P want property return? Need unique property or insolvent D P want contract performed? Specific performance P want contract destroyed? Rescission P wants contract rewritten? Reformation

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