Remedies Flashcards
Contract remedies
Expectation damages, consequential damages, incidental damages, liquidated damages, money restitution, recission, reformation, and specific performance
Normally punitive damages are not applicable in contract law and require that malice be shown, and a separate action eligible for punitive damages
Tort remedies
Actual damages, reliance damages, nominal damages, punitive damages, incidental damages, restitution, replevin, ejectment, constructive trusts, equitable liens, temporary restraining orders, preliminary injunctions, and permanent injunctions
Expectation damages
These damages include all expected profits or costs that would have been realized if the contract was fully performed by the breaching party. These damages place the non-breaching party in the position they would have been in if there was no breach.
Expectation damages requirements
In order to receive expectation damages, such damages must have been (1) foreseeable, (2) causal, (3) certain and (4) unavoidable. Also, these damages may not be awarded should there have been a failure to mitigate damages.
Reliance damages
If a plaintiff’s expectation damages are too speculative to measure, they may elect to recover based on their reasonable reliance on the contract. Reliance damages award the plaintiff the cost of performance and are designed to place the plaintiff in the position they would have been in if the contract was never formed.
Liquidated damages
These are damages specified within the writing of the contract. Liquidated damages require that the damage be difficult to estimate and will not be enforced if they are unreasonable of if used as a penalty for non-performance.
Incidental damages
These are damages that are smaller, reasonable costs that stem directly from the breach.
Consequential damages
These are damages that stem indirectly from the breach, however, are foreseeable and certain.
Nominal damages
Recoverable when no actual injury is sustained, however, if actual injury is a required element of the claim, nominal damages are recovered.
Punitive damages
May be awarded if clear and convincing evidence establishes the defendant acted willfully, wantonly, recklessly, or with malice.
Not generally available in contract actions.
Restitution
An equitable remedy that protects against another party’s unjust enrichment. It restores a benefit conferred on the other party to a contract.
Replevin
Replevin is a legal remedy that permits the plaintiff to recover, before trial, possession of chattel wrongfully taken or detained.
Ejectment
Ejectment is a legal remedy to remove a person in possession of real property and return proper possession to a plaintiff that was wrongfully ousted.
Reformation
A court may reform a contract to match the contracting parties’ intent at formation. Usually only available if there was a misrepresentation or mutual mistake that requires correction.
(Look for a mistake where the secretary failed to properly enter the sale price into a contract, or where you are required to analyze parol evidence)
Recission
Treats the contract as cancelled due to problems in formation.
(Fraud, misrepresentation, unclean hands, laches)
Specific performance
A court may order a party to perform a contract when there is (1) a valid contract with certain terms, (2) there is no adequate legal remedy, (3) enforcement is feasible, (4) mutuality of performance, and (5) no valid defenses.
(Typically applicable to real estate or unique items, and not allowed in service contracts)
Inadequate legal remedies
When evaluating specific performance, legal (monetary) damages are inadequate if they are speculate, the defendant is insolvent, or the item bargained for is unique.
Feasible enforcement
A court will not specifically enforce a promise if enforcement imposes a burden on the court that is disproportionate to the advantages gained from enforcement.
Mutuality of performance
The aggrieved party must show it is prepared to perform on the contract.
Specific performance unfairness
Specific performance will not be granted if such relief would be unfair. Factors include defenses, hardship, inadequate consideration, and unconscionability.
Mitigation of damages
A plaintiff is required to make best efforts to mitigate damages. If not, their damages may be reduced due to their failure to act. A plaintiff is not required to mitigate unless damages could have been avoided without undue risk, burden, or humiliation.
Temporary restraining order
An equitable remedy used in an emergency to maintain the status quo until the court can hear the case. the moving party must show a likelihood of success on the merits, and imminent irreparable harm. Notice should be provided to the non-moving party, however, a TRO can be granted ex parte if necessary.
(10 days in state courts or 14 dats in federal courts)
Preliminary injunction
Ensures the status quo after a TRO hearing or until the conclusion of litigation. The moving party must show a likelihood of success on the merits, a likelihood of irreparable harm, a balancing of the hardships in favor of the movant and provide a bond should the case fail. Unlike a TRO, notice is required.
Permanent injunction
A permanent court order which requires a person to do something or refrain from doing something upon completion of trial. It is appropriate when there is inadequate remedy at law, it concerns a property interest, there is feasibility of enforcement and a balancing of hardships.
Constructive trust
An equitable remedy where a court will require a defendant to hold property in trust, and if later ordered by the court, to then return it to the plaintiff. Preferred by a plaintiff when property goes up in value. Money is also property for the purpose of a constructive trust.
Equitable lien
An equitable lien forces sale of property wrongfully held by a defendant with the proceeds being delivered to the plaintiff. Expecting that the proceeds will not exceed the value of the property when it was illegally obtained, the plaintiff will likely seek a deficiency judgment to become whole. A plaintiff will see this remedy when property goes down in value, constructive trust when it goes up.
Laches
A plaintiff is barred from recovery when they purposefully delay bringing suit and that delay materially harms the defendant.
Unclean hands
A plaintiff’s case will fail when they are guilty of some sort of illegal or improper conduct related to the matter of the lawsuit.
Attachment
Process by which another’s property is seized in accordance with a writ or judicial order for the purpose of securing a potential judgment. Often a tool used when attempting to sue someone that may go insolvent.
