Remedies Flashcards
Remedy for torts
Compensatory
-put P back in place if tort didn’t happen
-noneconomic P&S damages
-economic if for expenses directly related
-emotional damages allowed for IIED or parasitic
Nominal
-allowed if little no harm suffered to recoup costs
Punitive
-when D acted recklessly
-consider reprehensibility, ratio betwen compen and punitive, availability of other civil penalties
Contracts Remedies
Compensatory
-expectation damages
-special damages (incidental, consequential)
-no punitive unless tort
Alternatives
-reliance
-restitution
-nominal
-liquidated
Limitations on Recovery (think elements of torts/contracts)
Causation
-check for but for/proximate cause
-check for certainty
-check for mitigation
TRO
-immediate irreparable harm
-balance of harships between P not getting injoined and D getting unjoined
-likelihood of P winning on merits
-notice NOT required if can show tried to give notice and
Prelim Inj
same as TRO but D entitled to notice and hearing
Permament Inj
After P acheived success on merits,
-balance of hardships
-irreparable of harm (inadequate monetary remedy)
-substantive right
Defenses to injunictions
=Unclean hands (bad faith/fraud)
-laches (waited too long)
Specific Performance
-Valid contract
-Inadequate remedy at law
-P must be ready willing and able to perform
-Balancing of hardships
-Enforcement feasible
Grounds for rescission
Fraud, duress, mistake, undue influence
Constructive Trust
D holds property in trust for P, would be inequitable for D to retain the property because D violated P’s rights
-WHEN TO USE: when value has increased, P doesn’t have to account for increase
-effect: P gets property or gets priority creditor status
Tracing- if property sold to BFP or lost, can get trust on proceeds
Equitable Lien
Grants P a lien on D’s property
-WHEN TO USE: when value of property has decreased, because D will be held to account
-effect: P can force a sale and collect proceeds, or gets priority in bankruptcy
-P can recover for decrease in value
Other tort remedies
Replevin- get back personal property and damages for loss of use
Ejectment- tort action to restore possession of land to P as long as P has lawful title
