Remedies

Question 1

Temporary Restraining order

Answer 1

Maybe be issued after notice given to D, and hearing or ex parte upon sufficient showing of urgency. Take into consideration is P will suffer irreparable harm if not granted, balancing hardships, and P’s likely success at trial.

Question 2

Immediate and irreparable harm

Answer 2

Must establish lack of an adequate remedy at law

Question 3

Preliminary injunction

Answer 3

P must show that he will suffer irreparable harm if PI not granted, and that P has high likelihood of winning trial, balancing hardships in P’s favor

Question 4

Laches

Answer 4

Unreasonable delay in pursuing equitable remedy in which the party was aware or should have been aware, and caused prejudice to the other party

Question 5

Reformation

Answer 5

Equitable remedy where court rewrites agreement to show parties true intent. Requires showing of valid contract, proper grounds to request it, and not any defenses to the granting of it

Question 6

Expectation damages

Answer 6

Put the non-breaching party in the same position he would have been in had the other party fully performed

Question 7

Consequential damages

Answer 7

Reasonable foreseeable losses to a non-breaching party. Are recoverable if they were natural and probable consequences of the breach, if they were contemplated by the parties at the time of contract, or if they were otherwise foreseeable

Question 8

Incidental damages

Answer 8

Compensation for commercially reasonable expenses incurred as a result of the other party’s breach

Question 9

Reliance

Answer 9

Damages the non-breaching party incurs in reasonable reliance upon the promise that the other party would perform (must choose between expectancy damages or this)

Question 10

Nominal damages

Answer 10

P established elements of a cause of action, but harm or loss is slight, P may be awarded a nominal or small amount of money (trespass to land)

Question 11

Punitive damages

Answer 11

Malicious behavior

Question 12

Restitution

Answer 12

Damages measured by the benefit conferred to the defendant by a plaintiff based on unjust enrichment

Question 13

Limitations on damages

Answer 13

D must be actual cause
D must be proximate cause (torts)
P must establish damages with reasonable certainty (lost profits and earnings of a NEW business are uncertain
P’s Duty to mitigate

Question 14

TRO and Prelim Injunction factors

Answer 14

Lasts 14 days for fed, 15 for CA
P must show:
- Will suffer irreparable harm if not granted
- P harm outweigh’s D’s harm
- p must show likelihood of success on the merits
- if it’s feasible for the court to enforce (will it need excessive involvement or supervision)

Question 15

Permanent injunction

Answer 15

P must show
- irreparable harm if not granted
- hardships if not granted are significantly greater than hardships on D and 3rd parties

Question 16

Specific performance (K)

Answer 16

1. Valid contract
2. Terms clear enough to make order
3. Non-breaching party satisfied conditions precedent
4. Money damages inadequate
5. Feasible to enforce and supervise
6. No defenses exist

Question 17

Unclean hands

Answer 17

Non-breaching party itself engaged in unethical or immoral acts relating to contract. Court may deny specific performance

Question 18

Rescission

Answer 18

(Mistake of fact, misrepresentation, or fraud)
Avoidance or unmaking of contract

Question 19

Replevin

Answer 19

If rescission granted:
Specific property that was transferred to defendant is given back

Question 20

Reformation

Answer 20

Judicial rewriting of contract
1) mutual mistake
2) unilateral mistake
- if it’s in good faith and other party doesn’t know about mistake, then court will not rewrite it.
Court only rewrites it if the party KNEW OF the mistake and didn’t say anything (like a punishment)

Question 21

Constructive Trust

Answer 21

Duty to convey Specific property to P if D would be unjustly enriched by retaining property (embezzlement)
P must show
1) d holds the property
- if property was sold by D to BFP then can’t
2) d retention of property is unjust enrichment, AND
3) legal remedy is inadequate (money damages inadequate)

Question 22

Equitable lien

Answer 22

Same req as constructive trust, places lien on D’s acquired property rather than taking it.

Additional satisfaction:
After lien placed, P can force sale to receive money owed. After this can seek additional money from D if still owed