Remedies

Question 1

Tort remedy - compensatory damages

Answer 1

Seek to put the injured plaintiff in the position they would have been had the injury not occurred
1. Causation (actual and proximate)
2. Certainty (not too speculative)
3. Unavoidable (P must try to mitigate)

Question 2

Tort remedy - permanent injunctive relief

Answer 2

“I’m feeling bold and determined”
* Inadequate legal remedy (speculative, insolvency, multiple suits, unique)
* Feasibility of enforcement
* Balancing of hardship
* Defenses (unclean hands, laches, impossibility)

Question 3

Tort remedy - preliminary injunction or TRO

Answer 3

-Irreparable harm (time frame context; balancing of hardships)
-Likely to prevail on merits (must post bond)

Question 4

Punitive damages

Answer 4

-Where D has displayed willful, wanton, or malicious tortious conduct.
-Cannot be awarded alone
-Must be relatively proportionate to actual damages (typically ~10x actual damages)

Question 5

Tort - restitutionary damages

Answer 5

-P is awarded a sum of money measured by the reasonable value of D’s ill-gotten gain.
-Can’t get both compensatory damages and restitutionary damages.

Question 6

Constructive trust

Answer 6

A constructive trust is a remedy implied in law and imposed by equity courts when the retention of property by the defendant-wrongdoer would result in unjust enrichment. Under a CT, the property is held by the defendant in trust for the plaintiff, with his sole obligation being to convey title back to the plaintiff.

Requirements:
1. Wrongful act led to retention of property from its rightful owner
2. D has legal title (mere possession not enough)
3. Inadequate legal remedy

Tracing is allowed even if the proceeds are more valuable than the property that was wrongfully acquired.
Plaintiff receives benefit of any increase in property

Property must be solely traceable to current form and not commingled with other property b/c title to the new property will be given to the plaintiff (e.g., embezzled funds used to remodel an existing home aren’t solely traceable so a CT won’t be imposed)

Question 7

Equitable lien

Answer 7

A court may impose an equitable lien when the defendant’s retention of property (or its proceeds) would result in his unjust enrichment. An EL is a legal fiction implied by the court where the property acts as collateral for money owed to the plaintiff.
An EL is similar to a CT, except property can be traced to commingled funds with an EL and a deficiency judgment is permitted.

Requirements:
1. Wrongful act led to retention of property from its rightful owner
2. D has legal title (mere possession not enough)
3. Inadequate legal remedy

Tracing allowed. However, plaintiff is not entitled to any increase over the value of the property that was originally misappropriated.

P prevails over unsecured creditors.

Deficiency judgments allowed.

Question 8

Consequential damages

Answer 8

Seek to compensate for damages that are a direct and foreseeable consequence and are found in addition to ED

Question 9

Contract remedy - expectation damages

Answer 9

• Seek to put P in position they would be in had K been performed
• Limitations:
  o Causation
  o Foreseeable at time of formation
  o Certainty
  o Unavoidable

Question 10

Liquidated damages

Answer 10

• A valid liquidated damages clause controls a damages award and will be the measure of damages when:
  1. Damages difficult to calculate
  2. Stipulated amount bears a reasonable relationship to the anticipated loss and is not a penalty
• If liquidation clause valid, only LD available (and possibly SP!). If invalid, only actual damages available.

Question 11

Defenses to SP

Answer 11

Laches
Unclean hands
Hardship/unconscionability (consideration grossly inadequate, marked inequity btwn parties)
Defenses against formation since a valid contract is a requirement for an injunction (mistake/misrep; SoF (unless partial performance exception); lack of consideration, sale to a BFP)

Question 12

Grounds for rescission

Answer 12

Mutual mistake
Unilateral mistake
Misrepresentation
Coercion
Undue influence
Lack of capacity
Failure of consideration
Illegality

Question 13

Rescission - effect of misrepresentation (innocent vs fraudulent)

Answer 13

Innocent misrepresentation: rescind

Fraudulent misrepresentation (knowing or reckless misrepresentation; intent to induce P’s reliance; justifiable reliance; damage)
P can choose to either
1. rescind and seek restitution
2. affirm K and seek damages

Question 14

Grounds for reformation

Answer 14

Mutual mistake
Unilateral mistake
Fraud
Misrepresentation

Question 15

Mutual mistake

Answer 15

Both parties mistakenly believed the writing conformed to their agmt (scrivener’s error)
-mistake as to basic assumption of the K
-mistake has material effect
-party seeking relief did not bear risk of mistake

Question 16

Unilateral mistake

Answer 16

Elements of mutual mistake,
-mistake as to basic assumption of the K
-mistake has material effect
-party seeking relief did not bear risk of mistake

plus: Nonmistaken party knew/should have known (rescission) or actually knew (reformation)

Question 17

Laches

Answer 17

Under the defense of laches, if a plaintiff has unreasonably delayed in asserting an equitable claim, and the delay has resulted in prejudice or harm to the defendant, relief will be barred.

Laches starts to run from the time P learns that one of his rights has been infringed

If laches applies, consider awarding money damages instead

Question 18

Deed

Answer 18

In writing
signed by grantor
identify parties
identify land