Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

CA Essay > Remedies > Flashcards

Remedies Flashcards

1
Q

Remedy at law

A

money damages to compensate a plaintiff for a loss and it is the remedy preferred by the courts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Restitution remedies

A

prevent the unjust enrichment of the defendant. Restitution remedies can be legal (money or return of property) or equitable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Remedy in equity

A

Not the preferred remedy. One must establish that remedy at law is inadequate to receive equitable remedy.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Election of remedy

A

P may choose one of several available recoveries in satisfaction of a single loss, but not all of them at the same time.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Compensatory damages

A

awarded to compensate the plaintiff for injury or loss. They are measured by the monetary value of P’s harm.

Potential issues that can limit compensatory damages (frequently tested):

  1. Causation: damages must be caused by the tortious act. This is actual but-for causation analysis.
  2. Foreseeable: damages must be foreseeable by a reasonable person at the time of the tortious act.
  3. Certainty: damages must be capable of being calculated with certainty and not be overly speculative.
  4. Unavoidability: P has a duty to take reasonable steps to mitigate his losses.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Past and future damages

A

When calculating general and specific damages, one must account for both past and future damages.

  1. Past losses: P can recover for past losses.
  2. Future losses: P can recover for anticipated future losses, so long as they can be calculated with reasonable certainty.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Pure economic loss

A

not recoverable for most torts, absent a showing of property loss or personal injury.

Exceptions: the tort of intentional interference with business relations does allow for pure economic loss recovery.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Nominal damages

A

awarded where P’s rights have been violated but P sustained no loss. Nominal damages serve to vindicate P’s rights.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Punitive damages

A

awarded where D has displayed willful, wanton, or malicious tortious conduct. Punitive damages are only awarded if:

  1. Actual damages are awarded (compensatory damages, nominal damages, or restitutionary damages); and
  2. Culpability of defendant is greater than “negligence”; and
  3. They are relatively proportionate to actual damages.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Legal restitution

A

appropriate where D has derived a benefit, or been unjustly enriched, and it would be unfair to allow D to keep that benefit without compensating P, or where P wants his property back.

Goal is to prevent unjust enrichment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Money restitution

A

legal remedy where P is awarded the monetary value of the benefit received by D. It is measured by the value of D’s gain.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Replevin

A

allows the recovery of a specific chattel wrongfully taken from P, who has the right to possession. The property is ordered return and P can receive damages for the time he was deprived of his chattel.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Ejectment

A

allows the recovery of specific real property from which P who has the right to possession was wrongfully excluded. The property is ordered returned and P can receive damages for the time he was deprived of

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Equitable restitution

A

only available when the remedy at law, money damages, is inadequate. The goal of any equitable remedy is to prevent unjust enrichment.

  • constructive trust
  • equitable lien
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Constructive trust

A

a fictitious trust created by a court to compel D to convey title to unjustly retained specific property to the plaintiff and restores the property to the plaintiff that has been wrongfully acquired by the defendant. The sole obligation of the constructive trustee D is to transfer the property back to P.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Equitable lien

A

Equitable lien creates a security interest in property held by D where the property acts as collateral for the money owed to P.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Requirements for constructive trust and equitable lien

A
  1. A wrongful act has led to the retention of property from its rightful owner (e.g., embezzlement, fraud, theft, conversion, etc.)
  2. D has legal title to convey: D must have wrongfully obtained legal title to the property, mere possession is not enough. (Caveat: a thief is deemed to have legal title to wrongfully obtained cash in his possession, but not legal title to wrongfully obtained property.
  3. Inadequate legal remedy: the remedy at law, typically money damages, must be inadequate.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

When is legal remedy inadequate in the context of a constructive trust/equitable lien?

A
  1. Money damages are too speculative to calculate with certainty.
  2. Insolvent defendant such that any damages award is worthless.
  3. Replevin is unavailable because the property has been sold and thus can’t be ordered returned to P.
  4. Property is unique so money damages are inadequate to compensate for the loss.
  • real property is always unique
  • personal property is not unique, except if it is one-of-a-kind or very rare, or if the item has special personal significance to P.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Property must be solely traceable to current form for constructive trust

A

If the property has changed form because it was sold or exchanged for new property, the rightful owner can “trace” and obtain a constructive trust for the new property.

  1. P receives the benefit of any increase in property value accrued by the passage of time or the change in property form because it would be unfair to allow the wrongdoer to receive the benefit of any gain.
  2. Property must be solely traceable to current form and not commingled with other property because title to the new property will be given to P.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

When is the property traceable if commingled with other funds? (applies to both equitable lien and constructive trust)

A

Lowest intermediate balance rule applies when D commingles wrongfully obtained funds with his own funds in a single account:

  1. investor fiction presumes D invests his own money first, so any investments are deemed to come from D’s own funds first, with any balancing coming from the wrongfully obtained funds after his own funds are exhausted.
  2. Spender fiction presumes D spends his own money first, so any purchases are deemed to come from D’s own funds first, with any balance coming from the wrongfully obtained fund after his own funds are exhausted.
  3. once traced proceeds are withdrawn, they are gone. If the wrongfully obtained funds cannot be traced to a new piece of property, the funds are gone and P cannot get a constructive trust.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Priority of P over third parties

A
  1. Bona fide purchaser with legal title prevails over P. (A BFP took for value without notice of the facts giving rise to the potential constructive trust. (secured creditors are BFPs)
  2. P prevails over unsecured creditors.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Limitation of constructive trust: no deficiency judgment

A

No deficiency judgment will be awarded for any shortfall. P will receive title to the property and be precluded from obtaining a deficiency judgment for any shortfall.

23
Q

Constructive trust vs. Equitable lien

A

An equitable lien is similar to a constructive trust, except property can be traced to commingled funds with an equitable lien and a deficiency judgment is permitted.

ALWAYS ANALYZE BOTH CONSTRUCTIVE TRUST AND EQUITABLE LIEN

  • Constructive trust is better when the value of the wrongfully acquired property goes up because P will receive the benefit of the increase in value to prevent D’s unjust enrichment.
  • equitable lien is better when the value of the wrongfully acquired property goes down because P can still get a deficiency judgment for the difference, or when property can’t be solely traced to its current form.
24
Q

Property need not be solely traceable to current form for equitable lien

A

Unlike a constructive trust, it is acceptable to trace P’s property to a different piece of property even if the two are commingled and P’s property was used to improve another piece of property properly owned by D. P can obtain an equitable lien on the commingled property in the amount of debt.

25
Q

Equitable lien allows for deficiency judgment

A

Unlike a constructive trust, an equitable lienholder can also obtain a deficiency judgment for any shortfall. Thus, it is preferred when the property has decreased in value because of the passage of time, or a change in property form.

26
Q

Injunction

A

An equitable remedy where the court orders one to perform an act (affirmative or mandatory injunction) or stop performing an act (negative injunction).

27
Q

Temporary Restraining Order (TRO)

A

TRO are designed to preserve the status quo for a short time pending further litigation regarding a preliminary injunction.

  • typically 10 days (14 days under federal rules)
  • Notice: notice is required, but a TRO can be obtained ex parte in exceptional circumstances, such as an emergency or when notice would result in the very harm one is trying to avoid.
28
Q

Requirements for granting a TRO

A
  1. Irreparable harm during waiting time if the TRO is not granted. (this is the time waiting for the preliminary hearing)
  2. Likelihood of success on the merits of the underlying claim.
  3. Inadequate legal remedy
  4. Balancing of hardships must favor P.
  5. No defenses are available. Laches and unclean hands are equitable defenses.

Memorization: Irish Lads Inhale Beer in Dublin.

29
Q

When are legal remedies inadequate in the context of a TRO?

A
  1. Money damages are too speculative to calculate with certainty;
  2. Money damages may be inadequate to compensate for the potential loss. e.g. when there is a health or safety concern.
  3. Insolvent defendant
  4. Replevin or ejectment is unavailable
  5. Multiplicity of suits: an ongoing wrong would lead to a multiplicity of lawsuits by the same litigants over the same issue if not resolved by an injunction.
  6. Prospective tort where the tort has not occurred yet but is expected to occur (e.g. imminent pollution).
  7. Property is unique
30
Q

How does the court do the balancing test of hardships in the context of a TRO?

A

The court weighs the hardship to P if the TRO is denied against the hardship to D if the TRO is granted.

The court also considers the following factors:

  1. a large disparity in hardships weighs in favor of the more severely impacted party
  2. Willful misconduct weighs very heavily against the wrongdoer
  3. Public interest: the hardship to the public and/or any public benefit can also be factored into the analysis.

INTENSIVE FACTUAL ANALYSIS IN ESSAY EXAM– USE ALL THE FACTS, PRESENT BOTH SIDES.

31
Q

Preliminary Injunction

A
  • designed to preserve the status quo pending a full trial on the merits.
  • harder to obtain than TRO, easier than Permanent Injunction.
  • same elements as TRO, but the preliminary injunction can never be ex parte.
32
Q

Permanent Injunction

A

A court orders one to perform an act or stop performing an act after holding a full trial on the merits.

33
Q

Requirements for Permanent Injunction

A
  1. Inadequate legal remedy
  2. property interest: the requirement of a protectable property interest traditionally meant an injunction would only apply to property. CA does not require a property right, and modernly, invasions of personal rights can support an injunction too.
  3. Feasibility of enforcement: the injunction cannot be too difficult for the court to enforce.
  4. Balancing of hardships
  5. No defenses Laches and unclean hands are equitable defenses.

Memorization: I Pray For Big Desserts.

34
Q

What impact the feasibility of enforcement for permanent injunction?

A
  1. Negative injunctions are easier to enforce because of the court’s power to order contempt for noncompliance.
  2. Affirmative injunctions are more difficult to enforce: series of acts over a period of time can be more difficult to enforce than one required act. Act requiring taste, judgment, or skill is difficult to enforce because of the difficulty in determining if the act has been properly performed.
  3. Jurisdictional issues can cause enforcement problems where the court would have to supervise events out of their jurisdiction or assert control over nonparties to the litigation.
35
Q

Expectation damages

A

Expectation damages compensate P for the value of the benefit P expected to receive from the contract. Measured by P’s injury stemming from the contract’s nonperformance.

36
Q

Potential limitations on contract expectation (and consequential) damages

A
  1. Causation: damages must be caused by the contract breach.
  2. Foreseeability: damages must be foreseeable to a reasonable person at the time of contract formation.
  3. Certainty: damages must be capable of being calculated with certainty and not be overly speculative.
  4. Unavoidable: P has a duty to take reasonable steps to mitigate his losses, in a contract this usually involves “cover”.
  5. Liquidated damagesclause that is valid will control and be the only measure of damages allowed for breach of the underlying K.
37
Q

Consequential damages

A

Consequential damages compensate for damages that are a direct and foreseeable consequence of the contract not being performed and are found in addition to expectation damages.

38
Q

Incidental damages

A

Incidental damages include those costs reasonably incurred when the other party is in breach.

  • Incidental damages are used to replace expectation damages when damages are difficult to calculate.
39
Q

Liquidated damages

A

LD are stipulated in a clause in the contract. A valid LD clause will be enforced by the court when:

  • damages are difficult to calculate
  • the stipulated amount bears a reasonable relationship to the anticipated loss and is not a punishment.
40
Q

Nominal damages

A

serve as a declaration that the contract has been breached, but P sustained no loss.

41
Q

Punitive damages

A

Punitive damages are not awarded in contract, unless the misconduct rise to the level of an independent tort, such as fraud.

42
Q

Legal restitution

A

Restitution damages are appropriate where D has derived a benefit, or been unjustly enriched, and it would be unfair to allow D to keep the benefit, or P wants his property back. There are three types of restitution:

  1. Quasi-contract (money restitution)
  2. Replevin (personal property)
  3. Ejectment (real property)
43
Q

Quasi-contract

A

Quasi-contract applies where there is no legally binding contract, but D has derived a benefit and fairness requires payment to P. It is measured by the value of the benefit unjustly retained.

Quasi-contract can arise in three ways:

  1. No attempt to contract: P can recover the value of the benefit unjustly retained by D.
  2. Unenforceable contract: P can recover the value of the benefit unjustly retained by D (e.g. K is illegal, SOF failure, etc.)
  3. Breached contract: when P is a nonbreacher, P can recover the value of the benefit conferred; when P is in breach, the traditional rule provides for no recovery, the modern trend provides for limited recovery.
44
Q

Equitable Remedies

A

Only available when remedy at law is inadequate. Two equitable remedies that are specific to contracts:

  1. Rescission
  2. Reformation
45
Q

Rescission of contract

A

Rescission permits a party to invalidate a contract and restores the parties to the position each would have been in if the bargain had not been entered into.

  1. No meeting of the minds: there must be a contract formation problem resulting from fraud, duress, mutual mistake, unilateral mistake, or a material misrepresentation.
  2. Typically only available to the wronged party
  3. Equitable defenses of laches and unclean hands are applicable.
46
Q

Reformation of contract

A

Reformation permits a contract be rewritten by the court to reflect the parties true agreement when:

  1. Meeting of the minds: the parties had a meeting of the minds; and
  2. Contract as written doesn’t reflect the parties’ agreement because of an error. (Proper ground for reformation include fraud, material misrepresentation, or mutual mistake)
  3. Typically only available to the wronged party
  4. Equitable defenses of laches and unclean hands are applicable.
47
Q

Injunctions

A

Three types of injunctive relief for contract:

  1. TRO
  2. Preliminary injunctions
  3. Specific Performance
48
Q

Specific Performance

A

A permanent injunction in contract where the court orders D to perform on the contract as promised.

The following requirements must be met:

  1. Contract is valid and terms are sufficiently definite and certain
  2. Contract conditions imposed on the plaintiff are satisfied.
  3. Inadequate legal remedy
  4. Mutuality of performance: both parties to the contract must be eligible to have their performance under the contract ordered by the court. (this is only at issue if one party cannot be ordered to perform)
  5. Feasibility of enforcement: personal service contract will likely not be ordered because the court will not order a person to personally perform work for another.
  6. No defenses: no laches, unclean hands, or defenses to the underlying contract

Memorization: Chocolate Cheesecake Is My Favorite Dessert.

49
Q

Laches in contract

A

Equitable defense when P has unreasonably delayed, resulting in prejudice to D.

50
Q

Unclean hands in contract

A

Unclean hands provides a defense when P has conducted himself unfairly in the transaction in dispute.

51
Q

Defenses to the underlying contract

A

ANy failure of the underlying contract can operate as a defense since a vlaid contract is a requirement for an injunction.

52
Q

Real Property Remedies: Encroachments

A

Encroachments are trespasses where D’s structure invades P’s property. This could also happen in an adverse possession action. With an encroachment, P is entitled to damages, ejectment, and injunction.

53
Q

Real Property Remedies: Waste

A

Waste occurs where there is an “injury” to the real property by one with a present interest against a future interest holder.

  • Voluntary waste is a deliberate, destructive act. The remedy is damages for the diminution of value or the cost of repair, and/or an injunction.
  • Permissive waste occurs when the property is poorly maintained. The remedy is damages for the cost of repair. Injunction is not usually available because of difficulty to supervise.
  • Ameliorative waste is where a present interest holder makes impermissible improvements to the property that actually enhance the property’s value. Though a present interest older is not permitted to do this, there are no damages because there is no loss in value. However, an injunction may be granted.

CA Essay (12 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions