remedies Flashcards
What is rescission and what are the grounds and defenses against it?
Rescission voids the K, equitable remedy
Grounds: (no mutual assent): Mistake, misrepresentation (fraud), undue influence, lack of capacity, failure of consideration, illegality
Defenses? Laches (unreasonable, prejudicial delay before SOL), unclean hands
P’s own negligence is NOT a defense
definition of compensatory damages
Compensatory damages puts the tort victim in the position they would have been in had the injury not occurred
When are punitive damages available?
torts only: Awarded to punish D for willful or wanton misconduct (intentional torts) or reckless misconduct.
Constructive trust and tracing (standard; deficiency available ?; commingled funds)
A constructive trust is a court order that the defendant hold the property in trust for the benefit of the plaintiff and return the property to the plaintiff, along with any enhanced value.
NO deficiency judgment awarded for shortfall
If the property is no longer available but may be traced to another form, as long as it can be traced with certainty, the plaintiff may still recover the value of the property by tracing.
For commingled funds, assume the D invested and spent his money first.
An equitable lien
a court-imposed security interest in the property which must be sold and the proceeds returned to the plaintiff.
deficiency judgment and a lien on the defendant’s other property available
No recovery for enhanced value in the property.
four steps to analyzing whether equitable remedies are available.
- valid K
- parties are ready and able to complete performance
- feasibility for the court to supervise
- inadequacy of legal remedies due to uncertainty or unique product or insolvency
requirements for temporary retraining orders and preliminary injunctions
TRO - P needs to demonstrate:
(1) irreparable harm without the order,
(2) the balance of the equities between the plaintiff and defendant favors the order,
(3) the plaintiff is likely to prevail on the merits of her claim.
- can be heard ex parte if good cause or good faith attempt to notice
- typically lasts ten days
preliminary injunction:
- same requirements as TRO but needs notice to opposing party and a hearing
- lasts until final judgment on the merits
Requirements for specific performance
Specific performance is available where there is (1) valid K
(2) no adequate remedy at law, ,
(3) parties are able to perform
(4) sufficiently definite terms
(5) enforcement is feasible
laches definition
The defense of laches bars equitable remedies where the plaintiff has unjustifiably delayed in bringing the action and the delay prejudices the defendant.
unclean hands definition
The defense of unclean hands bars specific performance where the plaintiff is guilty of some wrongdoing, even if not technically a breach or illegal act, in relation to the transaction.
