Remedies

Question 1

Specific Performance

Requirements for the court to consider

Answer 1

court orders other side to perform actual K

Requirements:
(1) valid K;
(2) terms of K clear;
(3) non-breaching party has met conditions required;
(4) money damages are inadequate;
(5) feasibility; and
(6) No laches or unclean hands defense

Question 2

Fraudulent Misrepresentation

Answer 2

(1) a false assertion of fact made knowingly, or recklessly without knowledge of its truth,
(2) with the intent to mislead the other party,
(3) that induced assent to the contract, and
(4) justifiable reliance on the misrepresentation by the adversely-affected party.

Question 3

Laches

Answer 3

the unreasonable delay in pursuing an equitable remedy of which the plaintiff was aware or should have been aware that caused prejudice to the defendant

Question 4

Unclean Hands

Answer 4

a defense to an equitable remedy when the party who seeks equitable relief herself engages in serious misconduct closely related to the claim

Question 5

Parol Evidence Rule

Answer 5

Evidence of prior or contemporaneous negotiations and agreements, written or oral, that contradict or modify contractual terms is inadmissible to vary the terms of the contract if the written contract is intended as a complete and final expression of the parties.

Not a defense to the granting of reformation because can establish fraud or a mistake

Question 6

Statute of Frauds

Answer 6

Contracts for the sale of goods worth $500 or more and promises to transfer or receive any interest in real property must be in writing and signed by the party to be charged.

Question 7

Preliminary Injunction

Answer 7

issued before or during a trial that generally is effective until there is a final judgment by the court and is designed to maintain the status quo pending final judgment.
cannot be issued unless the defendant has been given notice of the hearing and an opportunity to be heard.

same reqs as TRO
the plaintiff typically must show
(1) irreparable harm if the PI is not granted;
(2) that the plaintiff’s hardships if the injunction is not issued will be significantly greater than the hardships on the defendant and third parties if the injunction is issued;
(3) the likelihood that the plaintiff will succeed on the merits
(4) feasibility.

Question 8

TRO

Answer 8

an injunction for a short time (typically limited to 15 days unless extended by the court for good cause) with its primary purpose to maintain the status quo until a preliminary injunction hearing can be held

It may be issued after notice and a hearing or ex parte on a sufficient showing of urgency.

To obtain a TRO, the plaintiff typically must show
(1) irreparable harm if the TRO is not issued;
(2) that the plaintiff’s hardships if the injunction is not issued will be significantly greater than the hardships on the defendant and third parties if the injunction is issued; and
(3) the likelihood that the plaintiff will succeed on the merits.

Question 9

Unilateral Mistake

Answer 9

mistake by one party, so reformation is based on whether the other party was aware of the mistake

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 party’s erroneous belief, then the mistaken party may seek reformation of the contract.

If the other party was unaware of the mistake, then reformation is not available.

Question 10

Reformation

Answer 10

court rewrites contract if mutual mistake or unilateral good-faith mistake

will not rewrite if other party doesn’t know of mistake

Question 11

Rescission

What remedies are available

Answer 11

voidance or unmaking of contract when there us mistake of fact or fraudulent misrepresentation

may get replevin* (property back) or restitution (money back)

Question 12

Constructive Trust and Equitable Lien

Answer 12

allows P to impose trust/lien on D’s property if D improperly possessed P’s property

constructive trust: allows tracing and P gets value that house has increased or decreased

equitable lien: P doesn’t have rights to the increase of the value of house – only to money they lost

Question 13

2 Types of Remedies

Answer 13

legal = money damages
equitable = money can’t fix

Question 14

compensatory damages

Answer 14

for torts:
-general (noneconomic): pain & suffering
-special (money): lost wages, medical expenses

for Ks:
Compensatory = expectation damages
-value of benefit P expected to receive
-dollar amount written in K, FMV of product/service, the K’s value

will be limited if can’t show causation, foreseeability, certainty, and unavoidable (tried to mitigate)

Question 15

consequential damages

Answer 15

damages that result from breach of K (ex. losing business)
must show: foreseeability, causation, certainty, and unavoidable

Question 16

reliance damages

Answer 16

cannot get both compensatory and reliance damages!!

contracts only: non-breaching party spends money in reliance on K being performed

Question 17

punitive damages

Answer 17

malicious behavior, to punish and deter

can only get if received nominal, compensatory, or restitutionary damages and culpability greater than negligence

Question 18

Nominal

Answer 18

P’s rights have been violated but there was no loss – just vindicate P’s rights

Question 19

Restitution

Answer 19

Torts:
money restitution
replevin: recovery of specific chattel wrongfully taken from P
ejectment: receiver real property from which P was wrongfully excluded and has right to possession

Question 20

Duty to Mitigate

Answer 20

All awards of damages are subject to the duty to mitigate, and a plaintiff will be denied recovery, or damages may be reduced, for harm or loss that could have reasonably been avoided.

Question 21

Permanent Injunction

Answer 21

Requires a showing of irreparable harm, property right, feasibility of enforcement, balancing hardships and no defenses

Question 22

Irreparable Harm

Answer 22

The P is required to establish the lack of an adequate remedy at law

Question 23

When are money damages inadequate?

Answer 23

If they are too speculative or too small to compensate fully for the injury, when the harm may be irreparable, when injury is to land, or when there may be a bunch of lawsuits

Question 24

What damages may a P recover for conversion?

Answer 24

The full value of the converted property at the time of the conversion