Remedies

Question 1

Remedies Essay Roadmap

Answer 1

1. DAMAGES. If the goal is to compensate or restore plaintiff’s position or punish defendant. (Analyze right to damages.)
2. EQUITABLE RELIEF. If goal is to force or prevent conduct. (Legal remedy must be inadequate.)
3. RESTITUTION. If goal is to remedy unjust enrichment.

Question 1

Types of Damages for Torts: Overview

Answer 1

Compensatory: put P in same position he was in before tort was committed.

Nominal: if little or no harm suffered.

Punitive: to punish and make example of D.

Question 2

Types of Damages for Contracts: Overview

Answer 2

Compensatory: put P in same position as if contract had been performed (includes expectation, consequential, incidental, minus mitigation)

Alternatives to compensatory damages: reliance (reasonable reliance on breach), restitution

Nominal: slight loss

Punitive: rare

Liquidated: must be reasonable

Question 3

Types of Equitable Remedies for Contracts: Overview

Answer 3

(SIRR)

Specific Performance

Injunctive Relief

Rescission

Reformation

Defenses: Laches, unclean hands

Question 4

Types of Equitable Remedies for Torts: Overview

Answer 4

Injuctive Relief

Defenses: Laches, unclean hands

Question 5

Types of Restitution (Contract & Torts)

Answer 5

(M. CREEP)

Monetary judgment

Constructive Trust

Replevin

Ejectment

Equitable Lien

Purchase Money REsulting Trust

Question 6

compensatory damages: contracts

Answer 6

Compensates plaintiff for actual economic losses, putting them in as good a position as performance would have done.

Includes expectation damages, consequential damages, incidental damages, minus failure to mitigate

Question 7

compensatory damages: torts

Answer 7

Meant to make a victim whole, as if they’d never suffered the injury.

Can include general damages (pain and suffering), special (economic) damages, emotional distress

Question 8

Expectation damages (contracts)

Answer 8

benefit of the bargain

UCC: based on contract price - fair market value, or cost of substitute goods if goods are defective

Question 9

Consequential damages (contracts)

Answer 9

Reasonably foreseeable damages other than expectation damages that are related to the breach, arising out of special circumstances unique to parties. (like lost profits)

Question 10

Incidental damages (contracts)

Answer 10

reliance-type damages recoverable without special proof required for consequential damages. (like expenses incurred in return of goods)

Question 11

Nominal damages

Answer 11

nominal amount of damages awrded when harm or loss is slight but P met elements of cause of action

Question 12

Punitive damages

Answer 12

Meant to punish a defendant who engages in serious (wanton) misconduct with an imporper state of mind. Must not be grossly excessive.

Usually not available in contract

Question 13

Reliance damages (contracts)

Answer 13

Damages that the non-breaching party incurs in reasonable reliance upon promise that other party would perform. May not exceed full contract price.

ALTERNATIVE TO COMPENSATORY DAMAGES

Question 14

Restitution damages (contract)

Answer 14

Measured by benefit conferred on defendant by plaintiff and awarded under an unjust enrichment theory.

ALTERNATIVE TO COMPENSATORY

Question 15

Limitations on legal remedies (money damages)

Answer 15

Causation (actual and proximate); certainty; mitigation; reduction for benefits of D’s breach

Question 16

Types of Injunctions

Answer 16

Prejudgment (TRO, PI)

Permanent injunction

Question 17

Temporary restraining order

Answer 17

I for short period that does not require notice to D or opportunity to be heard. Fed limit: 14 days; CA limit: 15 days

P must establish:
i) Irreparable harm if injunction not issued ($ damages inadequate)
ii) Significantly more hardship to P than to D (and third parties)
iii) Likelihood of success on the merits
iv) Enforceability by the court

Question 18

Preliminary injunction

Answer 18

Issued before or during trial, effective until final judgment. D must have notice and opportunity to be heard.

P must establish:
i) Irreparable harm if injunction not issued ($ damages inadequate)
ii) Significantly more hardship to P than to D (and third parties)
iii) Likelihood of success on the merits
iv) Enforceability by the court

Question 19

Permanent injunction

Answer 19

Issued to prevent violation of P’s rights or to restore rights that have been violated.

REQUIRES P TO ESTABLISH:
i) Irreparable harm if injunction not issued
ii) Significantly more hardship to P than D (and third parties)

Question 20

Laches

Answer 20

A failure to assert one’s rights in a timely manner, resulting in a claim. being barred because the delay may have prejudiced the defendant.

Question 21

Unclean hands

Answer 21

P not entitled to equitable remedy because they are acting unethically or in bad faith with respect to the subject of the complaint.

Question 22

Defenses to equitable remedies

Answer 22

Laches, unclean hands

Question 23

Specific performance

Answer 23

Non-breaching party asks court to order breaching party to perform the contract. Requires:

i) valid contract
ii) clear terms
iii) duty of breaching party has been triggered
iv) money damages inadequate
v) relief is fair
vi) enforcement is feasible

valid clear duty money fair feasible

Question 24

Contract-based defenses to specific performance

Answer 24

Failure to comply with SOF
Fraud or misrepresentation
unilateral mistake
Also, hard to supervise / indentured servitude

Question 25

Rescission

Answer 25

The unmaking of contract by a court; allows court to cancel contract and discharge parties’ obligations.

GROUNDS FOR RESCISSION:
i) Fraud or misrepresentation
ii) Mutual mistake of fact by both parties; or
iii) Unilateral mistake of fact by one party, if the other party knew or should have known

Before filing suit, P must give notice of rescission and return benefits. P can then bring actions for: restitution, replevin, constructive trust / equitable lien

Question 26

Reformation

Answer 26

Judicial re-writing of contract or other document to reflect parties’ intent. Often awarded for mutual mistake or unilateral mistake

Question 27

Restitution

Answer 27

available when a D has been unuustly enriched at P’s expense, such as the benefit making D wealthy unjustly.

Question 28

Monetary judgment (restitution)

Answer 28

Measured by extent to which D has been unjustly enriched at P’s expense.

Conscious wrongdoer: can mesure up to net profit attained by wrongdoing, if greater than market value

Innocent recipient: measured by market value of direct benefit

Question 29

Constructive trust

Answer 29

Judicially created remedy imposing a duty to convey specific property to plaintiff if D would be unjustly enriched by retaining the property. P acquires D’s property as full satisfaction of his claim (even if it has lost value).

Plaintiff must show:
i) D holds title to the property
ii) D’s retention would unjustly enrich D, AND
iii) Money damages are inadequate.

Question 30

Equitable Lien

Answer 30

Results in a forced sale of defendant’s property; P receives money derived from sale. if sale doesn’t cover P’s losses, P can seek additional recover.

Plaintiff must show:
i) D holds title to the property
ii) D’s retention would unjustly enrich D, AND
iii) Money damages are inadequate.

Question 31

Purchase Money Resulting Trust

Answer 31

Occurs when one party purchases property and obtains title, but another party supplied all or part of the money to buy the property. The court imposes a resulting trust on the purchasing party (D), holding them as a trustee holding property in trust for supplying P.

Question 32

Replevin

Answer 32

When D takes P’s personal property, P may pursue replevin to order D to return property & get damages for use.

Question 33

Ejectment

Answer 33

To regain possession of land held by another. Sherriff takes possession and returns to P.

Question 34

Election of remedies rule

Answer 34

P can’t pursue a remedy that is inconsistent with a remedy already chosen. Only applies where D has materially changed position in reliance

Question 35

Defenses to restitution

Answer 35

laches

unclean hands

D’s changed position (if D is innocent and relied)

Bona Fide Purchaser (3d party)

Discharge for value (if mistake)

Unsolicited benefit (P unconditionally conferred benefit)

Question 36

Measure of compensatory damages in land contracts

Answer 36

difference between contract price and fair market value

Question 37

Consequential damages in land contracts (buyer breach)

Answer 37

costs incurred to sell

Question 38

Compensatory damages in trespass with addition to land

Answer 38

value of use of land lost, or cost or restoring to pre-trespass condition

Question 39

Compensatory damages for injury to land

Answer 39

cost to repair destroyed property, or diminution in value

Question 40

Compensatory damages for trespass to chattels

Answer 40

diminution in value of property, or reasonable cost to repair / restore (+ loss of use)

Question 41

compensatory damages for conversion

Answer 41

fmv of property right before conversion occurred

Question 42

compensatory damages for financial harm through misrepresentatino

Answer 42

loss of bargain (contract based) (difference between promise and fmv) or out of pocket (tort based) (difference between what paid and fmv)