Remedies Flashcards
Remedies Essay Approach
- Determine the cause of action in Q (K, Torts)
- Discuss legal/money damages + Limits
- Discuss equitable damages + Defenses
- Discuss restitution remedies + Defenses
Contract Cause of Action
TIP: Usually breach or anticipatory breach
- Sale of Land
- Personal Property
- Employment/Service Ks
Torts Causes of Action
- Trespass to Land
- Trespass to Chattel/Conversion
- Misappropriation of Funds (Embezzlement)
- Int. Torts + Negligence
- Financial Harm/Fraud/Misrepresentation
Money/Legal Damages
- Compensatory Damages - Torts v. K
- Expectation Damages
- Consequential Damages
- Incidental Damages
- Nominal Damages
- Reliance Damages
- Punitive
- Restitution
- Liquidated Damages
Compensatory Damages (Torts)
RULE: Compensate a plaintiff for injury or harm
- Pain & Suffering, Lost Wages, Medical Expenses
Compensatory Damages (K)
RULE: Include expectation, consequential, and incidental damages
- Must be mitigated by P.
ED + CD + ID - Fail to Mitigate - Costs Avoided
Expectation Damages
RULE: K Remedy. Puts the injured party in the same position they would be in had K performed
UCC: measure goods by a difference of K price and fair market value
Damages must be foreseeable and reasonably certain. Duty to mitigate!
Consequential Damages
RULE: K + Tort Remedy. Other damages besides ED, like loss of profit. Unique to the P.
REQ:
1. Foreseeable: natural/probable causes of tort/breach or contemplated by parties @ K form
2. Causation
3. Certainty: Determine amount with reasonable certainty
NOT RELIANCE! Cannot be speculative!
Incidental Damages
RULE: K Remedy. When the non-breaching party tries to remedy the K breach.
Ex: Buying commercially reasonable expenses or find a similar replacement to a service or good.
Liquidated Damages
RULE: K Remedy. Damages were agreed upon by the parties during K formation.
- Enforceable if reasonable at the time of K & had to determine damages.
- If seen more as a penalty, unenforceable.
Reliance Damages
RULE: Damages where party reasonably reliable upon the promise of another that they’d perform.
- Must choose Reliance/Restitute OR ED
ONLY up to the K price!!
Restitution Damages
RULE: K + Tort Remedy. Measured by benefit conferred ante (D) based on unjust enrichment
K: Way to recover if breach, or Quasi-K
- Reasonable Value of P’s Services
- Cost P increased
- Increase in D’s wealth
- Fixed K price
NO Rest AND ED
Punitive Damages
RULE: Tort, rarely K Remedy. Punish D who engaged with serious misconduct with malice.
Constitutional Limits: Cannot impose “grossly excessive” punishment. No more than 9:1 ratio.
Nominal Damages
RULE: K + Torts Remedy: When P meets all elements of cause of action, but harm is slight/trivial.
- Awarded small money or maybe litigation costs.
Not for negligence/fraud; need actual damages!
Limits on Monetary Damages
- Causation, Actual + Proximate
- Reasonable Certainty
- Duty to Mitigate
- Reduction to Benefits
Monetary Limits: Causation + Certainty
Actual: T + K. D was “but for” cause
Proximate: T: D liable for harms reasonably foreseeable
Certainty: Damages must be reasonably certain.
Reduction for Benefit
RULE: P’s recovery limited if benefited from D’s breach. Not reduced from benefits from collected sources.
- If the breach saved P money, subtract it from P’s damages.
Duty to Mitigate
RULE: Torts + K Remedy: P must make a reasonable effort to mitigate damages.
Tort: Seek medical attention
K for Goods: “Cover” by seeking replacements
K for Employment: Seek comparable and reasonable alternative employment.
Equitable Remedies
- Injunctive Relief
- TRO, Preliminary Inj., Permanent Inj. - Specific Performance
- K Defenses
- Equitable Defenses
- Unclean Hands, Laches - Recession
- Reformation
Temporary Restraining Order
RULE: Tort + K Remedy. Form of prejudgement injunctive relief. Short period of time D does not need notice.
- 14 to 15 days max (Fed v. CA)
- Maintain status quo until preliminary injunction.
- Show elements of prelim; don’t consider P’s defenses.
Preliminary Injunctions
VALERIE COULDN’T READ HANDWRITING
Preliminary: Before trial and until final judgment. D needs notice _ appointment to be heard.
- P shows reprehensible harm (money unacceptable)
- P shows hardship
Permanent Injunction
Permanent: After P wins cases, used to prevent further violation/restore P’s rights.
- P suffers reprehensible harm
- Hardship significantly greater than D + Third Parties
Specific Performance
VALERIE UNABLE TO READ ALL!
RULE: K Remedy. The breeching party required to perform
REQ:
1. Valid K
2. Clear/Definite Terms
3. Mutuality of Performance
-
- P shows satisfaction: ready, willing, able
4. Money Damages Inadequate
5. Feasible Enforcement
6. Not Unfair
- P isn’t un
- D mis
- No unreasonable hardship
7. No Defense
Contract Defenses
- Defense to Enforce/Formation
- Fail to comply with SCF
- Fraud/Misrepresentation on P
- Unilateral mistake P knows/should have known
Rescission
RULE: K Remedy. Avoidance/unmaking of K.
REQ:
1. Fraud/misrepresentation, mutual mistake, unilateral mistake.
2. P returns any benefit conferred.
- Followed by:
1. Restitution
2. Replevin
3. Construction of Trust/Equitable Lein
Reformation
RULE: Judicial rewriting of K or other deed to reflect parities true intent
Mutual Mistake: Both mistaken
Unilateral Mistake: One mistake, should have know to contribute, nothing to correct mistake.
Equitable Defenses
VALERIE UNABLE TO READ ALL
Unclean Hands: P engaged in unethical, metered, and immoral acts.
Laches: P waited an unreasonable time to seek SP, delay prejudice D.
For SP, consult trust, equitable lien
Torts + K!
Restitution Forms of Relief
- Money Damages
- Constructive Trust
- Equitable Lien
- Purchase Money Resulting Trust
- Equitable Defenses
- Replevin
- Ejectment
Restitution Money Damages
RULE: Benefit D incurred. If money, give money back. If goods/services, give goods/services.
Mental State:
1. Conscious Wrongdoer/Acts Knowing Risk: P gets all the gains.
2. Innocent/Negligent D: Just direct benefit.
Constructive Trust
RULE: Judicially imposed a duty to convey property to P, else D would be unjustifiably enriched.
REQ:
1. D holds title.
2. Retention would unjustly enrich
3. Money remedy inadequate
Tracing! Trace property from current form.
Full Satisfaction: Can get increase; stuck with decrease.
Equitable Lien
RULE: Forced sale of D’s property, and P receives money from the sale.
- Reqs the same as constructive trust.
- Cannot reverse the increase in value.
- If it decreases, D is still on hold.
Purchase Money Resulting Trust
RULE: D purchases title when P supplied funds/consideration to buy RP
- Trust formed, making D hold RP for P.
- P entitled to consideration
Replevin
RULE: When D takes P’s property, P may D to return. May also recover loss of use from property!
Tort: Recover many from conversion or fraud.
K: Obtain goals P legally entitled too
Ejectment
RULE: Regain possession of land. Sheriff helps take possession and returns.
REQ:
1. P shows title to land
2. P has right o immediate possession
