Remedies

Question 1

Name the Torts Remedies

Answer 1

Actual Damages (Compensatory/Nominal/Restitution), Reliance Damages, Nominal Damages, Punitive Damages, Incidental Damages, Restitution, Replevin, Ejectment, Constructive Trust, Equitable Lien, Temporary Restraining Order (TRO), Preliminary Injunction, and Permanent Injunction

Question 2

Name the Contract Remedies

Answer 2

Expectation Damages, Consequential Damages, Incidental Damages, Liquidated Damages, Restitution, Rescission, Reformation, and Specific Performance

Question 3

Compensatory Damages

Answer 3

Compensatory damages are awarded to compensate a plaintiff for injury or loss. They are measured by the monetary value of the plaintiff’s harm. Compensatory damages in tort can be general, non-economic losses directly attributable to the tort (e.g., pain and suffering) or special, economic losses unique to the plaintiff (e.g., medical bills).

Question 4

Pure Economic Loss (Tort)

Answer 4

Pure economic loss is not recoverable for most torts absent a showing of property loss or personal injury.

An exception applies to the tort of intentional interference with business relations.

Question 5

Nominal Damages

Answer 5

Nominal damages are awarded where a plaintiff’s rights have been violated but they sustained no loss. They serve to vindicate the plaintiff’s rights.

Question 6

Punitive Damages

Answer 6

Punitive damages are awarded where the defendant has displayed willful, wanton, or malicious tortious conduct. They are only awarded if actual damages are awarded, the defendant was more than negligent, and they are relatively proportionate to the actual damages.

Question 7

Restitution

Answer 7

Restitution is an equitable remedy that protects against unjust enrichment and restores the benefit conferred upon another party.

Question 8

Replevin

Answer 8

Replevin allows the recovery, before trial, of a specific chattel (i.e., personal property) wrongfully taken from the plaintiff who has the right to possession. The plaintiff can also receive damages for the time he was deprived of the chattel.

Question 9

Constructive Trust

Answer 9

A constructive trust is a form of equitable restitution created by the court to compel the defendant to convey title of unjustly retained property back to the plaintiff. A constructive trust requires that a wrongful act has led to the retention of property from its rightful owner and the defendant actually obtained title (required since the trust will force the plaintiff to give title back). Additionally, the remedy at law (money) must be inadequate and the property must be traceable to the wrongful behavior.

Note - this is preferred when the property goes UP in value; an equitable lien is preferred when property decreases in value

Question 10

Equitable Lien

Answer 10

An equitable lien forces the sale of property held by a defendant with the proceeds being delivered to the plaintiff. An equitable lien requires that a wrongful act has led to the retention of the plaintiff’s property, the defendant actually obtained title, the remedy at law is inadequate, and the property can be traced to the wrongful act. Unlike a constructive trust, an equitable lien holder can also obtain a deficiency judgment for any shortfall from the sale.

Note - this remedy is preferred when the property has gone DOWN in value because the plaintiff can seek a deficinecy judgment to make up the rest, rather than being stuck with the propery at its lesser value

Question 11

Temporary Restraining Order

Answer 11

A temporary restraining order (TRO) is designed to preserve the status quo until further litigation regarding a preliminary injunction can take place. A TRO requires the moving party to show:

1. Imminent irreparable harm;
2. A likelihood of success on the merits;
3. Legal remedies are inadequate; AND
4. The balancing of hardships weighs in their favor.

Notice is not required, but the moving party must be able to show a good reason why it was not provided.

Question 12

Preliminary Injunction

Answer 12

A preliminary injunction is designed to preserve the status quo pending a full hearing on the merits. A preliminary injunction requires the moving party to show:

1. Imminent irreparable harm;
2. A likelihood of success on the merits;
3. Legal remedies are inadequate;
4. The balancing of hardships weighs in their favor; AND
5. Notice is required

Question 13

Permanent Injunction

Answer 13

A permanent injunction is where a court orders one to do something or refrain from doing something after holding a full trial on the merits. A permanent injunction requires an inadequate legal remedy, a property interest, feasibility of enforcement, and a balancing of the hardships.

Question 14

Laches

Answer 14

A plaintiff is barred from recovery when they purposefully delay bringing suit and that delay materially harms the defendant.

Question 15

Unclean Hands

Answer 15

A defendant may assert the defense of unclean hands if the plaintiff is guilty of some sort of illegal or improper conduct related to the matter of the lawsuit.

Question 16

Attachment

Answer 16

Attachment is a process by which another’s property is seized in accordance with a writ or judicial order for the purpose of securing a potential judgment. It is often used when attempting to sue someone that may become insolvent.

Question 17

Expectation Damages

Answer 17

Expectation damages are meant to put the plaintiff in the position they would be in had the contract been performed as promised. They must be reasonably foreseeable, caused by the defendant, and capable of being calculated with certainty. Expectation damages may be reduced by a plaintiff’s failure to mitigate his damages.

Question 18

Liquidated Damages

Answer 18

Liquidated damages are those specified in the writing of a contract and may be valid so long as they are not punitive, reasonable, and damages would be difficult to measure.

Question 19

Consequential Damages

Answer 19

Consequential damages seek to compensate the plaintiff for damages that are a direct and foreseeable consequence of the defendant’s breach, and may be awarded in addition to expectation damages.

Question 20

Reliance Damages

Answer 20

Reliance damages seek to put the plaintiff in the position he would have been had the contract never been formed. Reliance damages are measured by the losses incurred as a result of reasonable reliance on the contract and are often used if the plaintiff’s expectation damages are too speculative to measure.

Question 21

Quasi-Contract

Answer 21

Quasi-contract applies when there is no legally binding contract, but the defendant derived a benefit and fairness to the plaintiff requires payment.

Examples - emergency medical care (no attempt to contract), contract fails for SOF (unenforcable contract)

Question 22

Ejectment

Answer 22

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.

Question 23

Reformation

Answer 23

A court may reform a contract to align with the true intent of the parties. It requires the parties did have a meeting of the minds but the contract as written does not reflect their agreement because of a mistake or fraud.

Question 24

Rescission

Answer 24

Rescission permits a party to invalidate a contract and restores the parties to the position each would have been in had the contract never been formed. There must be a contract formation problem stemming from fraud, misrepresentation, duress, or mutual mistake, such that there was no meeting of the minds.

Question 25

Specific Performance

Answer 25

A court may order a party to perform as promised under the contract when there is:
1. a valid contract with definite terms;
2. there is no adequate legal remedy;
3. mutuality of performance;
4. feasibility of enforcement; and
5. no valid defenses

Question 26

Mitigation of Damages

Answer 26

A plaintiff is required to make best efforts to mitigate their damages. If they fail to do so, their recovery may be limited accordingly.

Question 27

Approach for Remedies Essays

Answer 27

1) Determine and analyze the cause(s) of action in the question
2) Discuss legal damages (money damages) and limitations
3) Discuss equitable remedies and equitable defenses
4) Discuss restitution-based remedies (legal and equitable) and defenses (equitable)