Remedies Flashcards
Legal Remedies (Torts)
Types
Money Remedies
Compensatory
Punitive
Nominal
Restitutionary Remedies
Restitution
Replevin
Ejectment
Equitable Remedies (Torts)
Equitable Restitutionary Remedies
Constructive Trust
Equitable Lien
Pure Equitable Remedies
Permanent Injunction
Preliminary Injunction
Temporary Injunctive Relief
Compensatory Damages (Torts)
Definition & Requirements
Compensatory Damages = based on damage incurred by the plaintiff; the objective is to restore the P to the position they would have been in had the injury not occurred.
Requirements (FUCC)
- Foreseeability (proximate causation)
- Unavoidability: P must take reasonable steps to mitigate damages.
- Actual Causation (but-for test)
- Certainty: damages cannot be speculative.
NO LUMP SUM PAYMENTS OF COMPENSATORY DAMAGES
Nominal Damages (Torts)
Awarded when P suffers no actual injury (e.g., routine trespass with no damage to property).
Punitive Damages
Definition & Requirements
Punitive Damages = awarded to punish.
Requirements
- P must first be granted compensatory or nominal damages to be entitled to punitive damages, AND
- D’s culpability must be willful, wanton, or malicious (more than negligence)
- Punitive damages must be proportionate to actual damages (punitive damages may be no more than 10x greater than actual damages)
Restitution Damages (Torts)
Definition & Rules
Restitution: damages based on the benefit derived by D.
- Where P is injured and D benefits from conduct, P may be entitled to compensatory and restitutionary damages.
Replevin (Torts)
Replevin = a restitutionary remedy whereby a P recovers possession of a particular piece of chattel; P can recover property BEFORE trial.
Test: replevin is available if:
- P has a right to possess, AND
- The property was wrongfully withheld
Requirements & Procedure: to recover property BEFORE the trial, the P will have to:
- Post a bond (money to compensate D if P is wrong).
- D can defeat an immediate recovery by posting a redelivery bond, which allows the D to keep the chattel until the conclusion of trial.
Ejectment (Torts)
Ejectment = restitutionary relief enabling P to recover possession of real property; only available where a D has possession of the property.
Test: ejectment is available if:
- P has a right to possess, AND
- The property was wrongfully withheld
Constructive Trust
Constructive Trust = an equitable remedy imposed in improperly acquired property for which D has title; D serves as a trustee and must return the property to P.
Equitable Lien (Torts)
Equitable Lien = an equitable remedy imposed in improperly acquired property for which D has title, but the property is subject to an immediate court appointed sale; the monies from the sale are distributed to P.
- If the $$$ from the sale is LESS than the value of the property when it was taken – there will be a deficiency judgment and P can try to recover the deficiency from D in a separate action.
- When D’s property cannot be traced solely to P’s property, only an equitable lien is available.
- An equitable lien can be imposed on property that was merely improved with the plaintiff’s property or the proceeds thereof.
Injunction (Torts)
Injunction = a pure equitable remedy whereby the court orders to do or not to do something.
When are equitable remedies available in a tort action?
Equitable remedies are available only where legal remedies (e.g., money damages) are inadequate.
Permanent Injunction
Definition & Requirements
Permanent Injunction = issued after full trial on the merits.
Requirements: I AM FEELING BOLD
- Inadequate Legal Remedy Alternative: money damages are inadequate (speculative, insolvency of D, irreparable injury, multiple actions).
- Feasibility of Enforcement: injunction must be feasible for court to enforce (e.g., challenges with supervision and compliance)
- Balancing Hardships: if D’s hardship outweights P’s benefit, the injunction is denied; there must be a gross disparity between benefit and detriment.
Defenses to Grant of Permanent Injunction
Unclean Hands (P is a shady character)
Laches (effect of passage of time; how prejudicial is the passage of time for D)
* if laches apply, court will consider $$$ damages
Impossibility
Free Speech (e.g., defamation cases)
Temporary Injunctive Relief
Definition & Requirements
Temporary Injunctive Relief = order preserving the status quo that is issued pending a trial on the merits; like a preliminary injunction byt faster.
Required Showing
- Irreparable Injury
- Likelihood of Success at Trial
- Notice to D
Note: bond requirements on P.
Injunction & Contempt
Civil Contempt = tool to coerce parties to comply with injunction by fine or imprisonment.
- D holds the keys to the jailhouse; D can be released by complying with injunction
Criminal Contempt = punishment for noncompliance; compliance does not guarantee release.
Contract Remedies
Types
LEGAL REMEDIES
* Compensatory damages
* Restitutionary remedies
EQUITABLE REMEDIES
* Specific performance
* Rescission
* Reformation
Compensatory Damages (Contracts)
Compensatory Damages = based on damage incurred by the plaintiff; the objective is to restore the P to the position they would have been in had the injury not occurred.
Requirements (FUCC)
- Foreseeability (proximate causation)
- Unavoidability: P must take reasonable steps to mitigate damages.
- Actual Causation (but-for test)
- Certainty: damages cannot be speculative.
Direct Damages (Contracts)
Direct Damages = a type of compensatory damage that flows directly from the breach.
- Metric: what position did P expect to be in after the K was formed?»_space;> the difference between the value expected and the value received.
Example: P and D contracted for D to construct a home for P for a value of $100,000; although the agreement explicitly specify that D use an expensive redwood for the beams. Instead, D uses a cheap pine when he constructs the beams.
- D would be entitled to difference between $100,000 redwood home and the value of the home with pine beams.
Consequential Damages
Consequential Damages = a type of compensatory damage that flow from indirect consequences of a breach that were foreseeable at time of contract formation.
Example: “For each additional day contractor requires for the completion of performance, $1000 shall be deducted from total contract price.”
Liquidated Damages
Liquidated Damages Clause = presented in certain legal contracts as an estimate of otherwise intangible or hard-to-define losses to one of the parties.
2-Part Test for Validity of Liquidated Damages Clause
- Damages are difficult to ascertain at the time of formation, AND
- The damage amount is a reasonable forecast of what the damages would be.
– If the amount is excessive, it’s a penalty»_space; it’s an invalid clause»_space; compensatory damages
Restitution (Contracts)
Restitution = equitable remedy that prevents unjust enrichment
Requirements: restitution is available if:
- K is unenforceable, AND
- K is breached (restitution available when P is non-breaching party; if P is breaching party, the modern view permits recovery but remedy is reduced by damage caused by P’s breach)
Specific Performance
Definition
Specific Performance = an equitable remedy that requires the D to perform the contract.
~EQUITY ABHORS FORFEITURE~
Specific Performance Requirements
CCIFD: CHACHA IS FAIRLY DIFFICULT
- K must be valid, certain, definite: P must show certainty of terms (e.g., final writing, no ambiguities).
- P’s K conditions must be satisfied: P must show they satisfied conditions giving rise to obligation to perform and are willing/able/ready to perform (P may also show she is excused from performance).
- Inadequate Alternative Legal Remedy: P must show $$$ damages would be an inadequate remedy (e.g., speculative, insolvency of D, uniqueness).
- Feasibility of Enforcement: personal service Ks are not subject to specific performance.
- Defenses: no legitimate defenses to specific enforcement (unconscionability, mistake, misrepresentation, SoF).
