Remedies Flashcards
Reformation (rule)
to reform a contract because of mistake, there must be:
(1) an agreement between the parties,
(2) an agreement to put the agreement in writing, and
(3) a variance between the original agreement and the writing
the mistake must be:
(1) where both parties were mistaken;
(2) one party knew of the mistake but failed to point it out to the other party
Specific performace (definition)
Specific performance is (1) an equitable remedy (2) ordered by a court that requires a breaching party to perform their duties under a contract
When is a legal remedy inadequate ?
if the subject matter of the K is rare or unique
Injunction (definition)
an injunction is (1) an equitable remedy; (2) where the court issues an order requiring a person to either do or refrain from doing something
an injunction may be permanent (imposed after full trial on the merits) or preliminary (issued to maintain the status quo until a full trial can be held on the merits)
preliminary injunction requirements
Party seeking must show
(1) they will suffer irreparable injury if not granted
(2) the harm they would suffer if the injunction is not granted would outweigh the harm the defendant will suffer if the injunction is granted
(3) they are likely to prevail on the merits of the underlying case
Reformation and a statute of frauds defense
If the court will reform the contract, the statute of frauds does not apply
Part performance and a statute of frauds defense
part performance is sufficient to take a sale of goods contract out of the statue of frauds where
(1) the goods have been specifically manufactured or
(2) the goods have been either paid for or accepted
Equitable estoppel and a statute of frauds defense
when a defendant’s conduct foreseeably induces a plaintiff to change their position in reliance on an oral agreement, courts may uses the doctrine of equitable estoppel to remove the contract completely from the statute of frauds as an equitable remedy
Parole evidence rule
if parties intended a writing to be a final expression of their agreement, any other expressions made prior to the writing (or oral expressions made contemporaneously with the writing) are not admissible to vary the terms of the writing
Laches - what is it?
an equitable defense asking a court not to grant an equitable remedy because the plaintiff waited to bring their claim and the delay caused prejudice to the D
Temporary Restraining order: What is it? What must party show for it to be granted?
It is an order granted in equity that preserves the status quo until a preliminary hearing on the matter can be heard. They are generally granted in emergency situations.
For a TRO to be granted, the party seeking the TRO must show:
(1) irreparable harm will occur in the absence of awarding the TRO;
(2) balance of hardships favors granting the TRO; and
(3) the party seeking the TRO is likely to prevail on the merits
(4) inadequate legal remedy* (only some jurisdictions require)
Preliminary injunction: What is it; what does party need to show for it to be granted?
a preliminary injunction is an injunction issued to preserve the status quo until a full hearing on the merits can be done.
Requires all the same as TRO +
(1) opposing party must have notice and an opportunity to be heard at the hearing
(2) and no defenses may apply; and
(3) party seeking may have to post a bond in case they are unsuccessful
unclean hands defense
equitable defense; a plaintiff who acted unfairly with respect to the current action will be barred from recovery because they too have “unclean hands.”
Requirements for specific performance
(1) valid contract with clear and definite terms;
(2) inadequate legal remedy;
(3) feasibility of enforcement;
(4) mutuality of performance; and
(5) no defenses.
Tort Remedies:
(1) Legal remedies - Damages
(2) Restitutionary Remedies - Restitutionary damages; Replevin, Ejectment
(3) Equitable Restitutionary Remedies - constructive trusts, equitable liens
(4) Equitable remedies - Injunction
