Remedies Flashcards
Nuisance - damages
Damages is generally the diminution in value of property due to the nuisance
If the nuisance is a continuing one and the court deems it “permanent,” then the court will award the plaintiff all past and future damages, which prevents plaintiffs from returning to the court to collect damages in the future.
Permanent Injunction
A permanent injunction requires the following elements: (1) irreparable harm, (2) and balancing the equities. Courts also sometimes consider feasibility of enforcement
In balancing the equities, generally the defendant and third parties should not suffer undue hardship as a consequence of the injunction. The court will weigh the social utility of the defendant’s conduct against the harm caused to the plaintiff and others
Actual damages - torts
Actual damages compensate a plaintiff for the injury suffered.
Actual damages generally include medical expenses, parasitic damages (i.e. pain and suffering), and lost wages
Expectation damages - Contracts
The goal of expectation damages is to place the non-breaching party in the same position they would be in had the other party not breached.
Consequential damages
Consequential damages include damages that reasonably and foreseeably flow from the breach or from the tort.
Requirements:
(1) must be foreseeable - the natural and probable consequence of the tort or contemplated by the parties at the time the contract was formed
(2) must have been caused by defendant’s breach or tort, and
(3) must be ascertainable with reasonable certainty
Incidental damages - contracts
Incidental damages compensate a non-breaching party for the steps taken by that party to remedy a breach (i.e. cost of finding a replacement seller)
Reliance damages - contracts
The goal of reliance damages are to place a non-breaching party in the same position they would have been in had the contract never been formed in the first place
These damages are applicable if a party incurs expenses in reasonable reliance upon the breaching party’s promise to perform
Reliance damages CANNOT exceed full contract price
Essay strategy
(1) analyze causes of action
(2) Discuss legal damages
(3) discuss equitable remedies and defenses
(4) discuss restitution remedies
Legal damages
Compensatory damages (Tort - actual damages, Contracts - expectation damages)
Consequential damages (Tort/Contracts)
Incidental damages (Contracts)
Reliance damages (Contracts)
Nominal Damages (Torts/Contracts) - harm is slight but elements are met
Punitive damages (Torts/ rarely Contracts)
Restitution Damages (Torts/Contracts)
Restitution Damages
Measured by benefit conferred upon D by P. Goal is to avoid unjust enrichment.
Usually granted when other damages are adequate
Temporary Restraining Order
A TRO is a short-term injunction that is typically sought at the first stage of the plaintiff’s request for injunctive relief.
Purpose is to maintain the status quo pending a hearing for a preliminary injunction, and it may be issued ex parte upon a sufficient showing of urgency.
Limits - 14 days (Federal Rules), 15 days (CA)
Elements:
(1) Likelihood of success on the merits
(2) Irreparable Harm (P would suffer irreparable harm if injunction is not issued)
(3) Balance of Hardship (Hardship for 14 days)
Rescission
Unmaking of contract (puts parties in position they would be in if contract was never made)- generally available as a remedy for:
(1) mistake (unilateral or mutual)
(2) fraud/misrepresentation
P must: (1) give notice to D, (2) return any benefits received from D
P can then obtain a replevin (recovery of specific property that was transferred to D) or restitution (monetary compensation for value of property services conveyed by P upon D)
Preliminary Injunction
Notice and hearing are required
Elements: (1) plaintiff will suffer irreparable harm if injunction is not issued; (2) likelihood of success on the merits; (3) balance of hardship (P will suffer greater hardship if injunction is not issued than D would if injunction is issued; D can also reference hardship to third parties to help his side of the argument)
(4) Enforceability
Permanent Injuinction
Granted after a plaintiff has prevailed on their case. Elements: (1) irreparable harm, (2) balance of hardships
Specific Performance
Non-breaching party can ask court to order breaching party to perform. Elements:
(1) contract was valid
(2) terms of contract are sufficiently definite
(3) performance is due (all conditions satisfied or properly waived)
(4) money damages inadequate
(5) enforcement feasible
MAKE SURE TO MENTION DEFENSES!!!
Laches
Unreasonable delay in pursuing an equitable remedy, resulting in prejudice to the other party
Reformation
Judicial rewriting of contract to reflect parties’ true intent
Allowed for mutual mistake
Allowed for unilateral mistake (if a party knew of the mistake and either fraudulently induced it or did nothing to correct it)
Unclean Hands
Bars a plaintiff from seeking equitable relief if the plaintiff was engaged in unethical behavior with respect to the contract
Constructive Trust
Judicially created remedy that imposes a duty to convey property to plaintiff if defendant would be unjustly enriched by retaining the property
Elements:
(1) D holds title to the property to be conveyed
(2) D’s retention would unjustly enrich D
(3) Legal damages are inadequate
Tracing - a party can trace his property from its original form to the purchase of a house and recover the house from the defendant
Constructive Trusts are in FULL SATISFACTION of the claim - if there is an increase in value, Plaintiff can retain it
Equitable Lien
An equitable lien is a judicially created remedy that imposes a lien on the defendant’s property. The plaintiff is not seeking to take ownership of defendant’s property, but rather
claiming a creditor-like interest in the defendant’s property.
Same elements as Constructive Trust
Not in Full Satisfaction of Claim
- plaintiff only entitled to amount of money D received from P
Use if value of property is less than what D took from P (because P can seek more money from D)
Replevin
Allows P to recover personal property from D
Expectation Damages for Breach of Real Property Contract
Generally, when the seller breaches a real property contract, the buyer is entitled to recover the difference between the contract price and the market value as of the date of the breach of contract.
Reliance Damages - Land Sale Contracts
In land sale contracts, the reliance damages are often the out-of-pocket expenses including any down payment or earnest money paid to the seller.
Trespass Damages
Diminution in FMV OR cost of repair
