Remedies Flashcards
Legal Remedies
Can Not Rely Purely Rendering Liquid
- Compensatory
- Nominal
- Reliance - contracts only
- Punitive
- Restitution
- Liquidated damages
Equitable Remedies
If Specific Random Rongs
- Injunctive relief
- Specific performance - contracts
- Rescission - contracts
- Reformation - contracts
Equitable Defenses
- Unclean hands
- Laches
Compensatory Damages Formula
Contracts
Expectation damages + consequential damages + incidental damages - failure to mitigate - costs avoided
Compensatory Damages
Tort
Seek to compensate the P for their injury/harm
Medical expenses, pain and suffering, lost wages
Expectation Damages
Contract
Goal is to put the injured party in the same position as if the contract had been performed
Based on the contract price for performance and FMV of performance
Consequential Damages
Rule statement and Elements
Reasonably foreseeable damages other than expectation damages that are related to the tort or breach of contract
Three elements:
1. Foreseeability - must be the natural and probable consequence of the breach or contemplated by the parties at the time of contracting
2. Causation - damages were caused by D’s breach
3. Certainty - cannot be too speculative
Reliance Damages
Contracts only
Damages the non-breaching party incurred in reasonable reliance on the promise that the other party would perform
CANNOT get both reliance and expectation damages - choose 1
Incidental Damages
Contracts only
Damages that arise when the non-breaching party tries to remedy the breach
Nominal Damages
Torts and Contracts
Plaintiff can seek nominal damages if the harm or loss is slight
Punitive Damages + Limitations
Goal is to punish the D for serious misconduct, not destroy
Constitutional limitations - cannot be grossly excessive
1. Reprehensibility of the conduct
2. Ratio of compensatory to punitive damages
3. D’s wealth
Restitution
Tort and contracts
Measured by the benefit conferred on D based on theory of unjust enrichment
CANNOT get both restitution and compensatory - choose 1
Limitations on Money Damages
- Actual cause - tort & contract
- Proximate cause - tort
- Certainty - tort & contract
- Avoidable consequences - tort & contract
Injunctive Relief
An injunction is a court order directing a person to act or refrain from acting
Torts and contracts
Temporary Restraining Order
A party seeking a TRO must establish:
1. Likelihood of success on the merits
2. Irreparable harm if not granted or money damages inadquate
3. Balancing of the hardships
Can be granted ex parte
14 day max
Defenses not considered
Preliminary Injunction
Same requirements as TRO but a PI:
1. Lasts up through trial
2. Requires notice and full hearing on the merits
3. Is appealable
4. Defenses are considered, and
5. P may have to post bond
Permanent Injunction
Granted after case to prevent violation of P’s rights or restore rights that have been violated.
Same requirements as TRO and PI except:
1. Requires success on the merits
2. Implemented at end of trial
Does not end unless:
1. Reversed by higher court
2. Satisfied
3. Discharged
Specific Performance
- Valid contract
- With clear and certain terms
- Non-breaching party has satisfied any conditions precedent or they are excused so breaching party’s performance is now due
- Money damages are inadequate
- Feasability of enforcement
- No valid defenses
Rescission
Judicial unmaking of a contract
Must:
1. Show grounds for rescission - mutual mistake, unilateral mistake, mispresentation/fraud
Usually followed by replevin or restitution
Reformation
Judicial re-writing of a contract to reflect parties’ true intent
Grounds for reformation:
1. Mutual mistake
2. Unilateral mistake
3. Fraudulent misrepresentation
Constructive Trust
Judicial remedy imposing duty on D to convey property to the P
Requirements:
1. D holds title to the property subject to the constructive trust
2. D’s retention of the property would unjustly enrich D, and
3. Money damages are inadequate
Must trace to the property
If increase in value of property –> P gets that increase
Equitable Lien
Forced sale of D’s property and P gets proceeds from the sale
Requirements - same as CT:
1. D holds title to the property
2. D’s retention of the property would unjustly enrich D, and
3. Money damages are inadequate
Must trace to property
P does not get increase in value of property
Replevin
P can retain possession of personal property D took pending the outcome of trial
Tort - can be used to recover misappropriated money or obtained by fraud
Contract - can be used to recover goods from D that P is legally entitled to
Ejectment
Must bring an ejectment action to regain possession of property held by another
Fraudulent Mispresentation
Must show:
1. False assertion of fact made knowingly or recklessly without regard to its falsity
2. With intent to mislead the other party
3. That induced reliance on the contract, and
4. Justifiable reliance on misrepresentation by adversely affected party
Unilateral Mistake
Reformation
Reformation is available if the other party is aware of the mistake and has either:
1. Fraudulently induced the mistaken party’s erroneous belief, or
2. Does nothing to correct the mistaken belief
