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Cal Bar Essay Outlines > Remedies > Flashcards

Remedies Flashcards

1
Q

Available Remedies - Contracts

A

The following remedies are available for K breaches:
Damages (legal), Restitution (legal), Reformation (equitable), Rescission (equitable), and Specific Performance (equitable).

Expectation, Reliance, Restitution, or Specific Performance + Consequential, and Incidental

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2
Q

Contracts - Legal Remedies

Expectation Damages

A
  • The default K remedy is Expectation Damages.
  • Expectation damages are the value of the benefit the P expected to receive from performance of the K.
  • To recover, the damages must be:
    1. caused by the D (actual cause),
    2. foreseeable (proximate cause),
    3. certain (damages cannot be too speculative) , and
    4. unavoidable (the P must take reasonable steps to mitigate his losses).
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3
Q

Contracts - Legal Remedies

Reliance Damages

A
  • Reliance Damages are whatever a party paid in reasonable reliance of a K; including the money that was paid and pain and suffering, if relevant.
  • If Expectation Damages are too speculative, the court may award Reliance Damages instead.
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4
Q

Contracts - Legal Remedies

Restitution Damages

A
  • Restitution is awarded to prevent unjust enrichment.
  • It is available when one party confers a benefit onto another party (even if there is no enforceable K).
  • It is measured by the benefit received by the D.
  • A party cannot recover both Expectation Damages and Restitution Damages.
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5
Q

Contracts - Legal Remedies

Incidental Damages

A

Incidental Damages are the reasonable costs incurred as a result of a breach of K (i.e. costs of storing non-conforming goods, renegotiating other deals).

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6
Q

Contracts - Legal Remedies

Consequential Damages

A
  • Consequential Damages arise indirectly from the breach, and are awarded because of the injured party’s special circumstances known to the D (e.g. lost profits).
  • To recover, the damages must be:
    1. reasonably foreseeable at the time of K formation, and
    2. reasonably certain.
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7
Q

Contracts - Legal Remedies

UCC Buyer’s Damages

A
  • Under the UCC, a buyer who
    (a) never received the goods, or
    (b) rejected non-conforming goods     may:
    1. cancel the K;
    2. recover any amount paid (a refund);
    3. recover either:
    (a) cover damages (the price of substitute goods - the K price), or
    (b) market damages (the market price - the K price); and
    4. recover Incidental and Consequential Damages.
  • If the buyer keeps the non-conforming goods, then the buyer is entitled to the difference between the value as promised and the value of the non-conforming goods.
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8
Q

Contracts - Legal Remedies

UCC Seller’s Damages

A

Under the UCC, when a buyer breaches a K, the seller is entitled to the following damages:
* If the seller resold the goods, the difference between the resale price and the K price.
* If the seller did not resell the goods, the difference between the market price and the K price.
* A lost volume seller (one who has a virtually unlimited supply of goods to sell) may recover lost profits.
* A seller is also entitled to recover Incidental Damages.

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9
Q

Contracts - Legal Remedies

Damages in Contracts for the Sale of Land

A
  • For a breach of K concerning the sale of land, the buyer may recover:
    1. any amount paid,
    2. the difference between the FMV of the land at the time of the breach and the K price,
    3. expenses, and
    4. possible Consequential Damages.
  • The seller normally recovers the “earnest money” deposit as liquidated damages.
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10
Q

Contracts - Legal Remedies

Quasi-Contract

A
  • A quasi-contract is a K implied by law, which acts as a remedy for a dispute between two parties that don’t have a K.
  • It is used to prevent the unjust enrichment of the D.
  • Under a quasi-contract, the remedy is typically Restitution.
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11
Q

Contracts - Equitable Remedies

Specific Performance

A
  • Specific performance is a court order to make the D perform his duties under the K.
  • It is available when:
    1. a valid K exists,
    2. the P has performed or can perform under the K,
    3. legal remedies are inadequate (i.e. rare/unique item, Ks involving the sale of land),
    4. enforcement is feasible for the court*, and
    5. no valid defenses for the D exist.

It is not feasible to enforce personal service Ks or where land/person is outside the court’s jurisdiction.

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12
Q

Contracts - Equitable Remedies

Reformation

A
  • Reformaton allows a K to be changed to conform to the parties’ original intent.
  • It is available if a valid K exists, but there was a misrepresentation or mutual mistake.
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13
Q

Contracts - Equitable Remedies

Rescission

A
  • Rescission allows a party to undo a bargain.
  • It is available if there was a problem with the formation of the K (i.e. duress, fraud, misrepresentaion).
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14
Q

Available Remedies - Torts

A

The following remedies are available in tort actions: Damages (legal), Restitution (legal or equitable), and Injunction (equitable).

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15
Q

Torts - Legal Remedies

Compensatory Damages

A
  • Compensatory damages are awarded to compensate the P for injury or loss. They are measured by the monetary value of the P’s harm.
  • To recover, the damages must be (i) caused by the D (actual cause), (ii) foreseeable (proximate cause), (iii) certain (damages cannot be too speculative, and (iv) unavoidable (the P must take reasonable steps to mitigate his losses).
  • A P can recover for anticipated future losses.
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16
Q

Torts - Legal Remedies

Nominal Damages

A

Nominal damages are available when the P has not suffered an actual injury, but still wants to establish his rights.

17
Q

Torts - Legal Remedies

Punitive Damages

A

Punitive damages are awarded to punish the D. They are available if (i) the P was awarded actual damages (compensatory or nominal), and (ii) the D’s conduct was willful, malicious or egregious (must be more than just negligence).

18
Q

Torts - Legal Remedies

Restitution Damages

A

Restitution is awarded to prevent unjust enrichment. It is available when one party confers a benefit onto another party. It is measured by the benefit received by the D.

19
Q

Torts - Legal Remedies

Damages for Fraud

A

Damages for fraud or deceit are either: (a) the difference in value between what the P gave and what he received, or (b) the difference in value between what the P actually received and what he was fraudulently led to believe he would receive.

20
Q

Torts - Legal Remedies

Damages for Conversion of Property

A

Damages for conversion of property are the full market value of the property at the time of conversion.

21
Q

Torts - Legal Remedies

Damages for Trespass to Chattels

A

Damages for trespass to chattels are the actual damages suffered, which may include the cost of repairs.

22
Q

Equitable Remedies

Temporary Restraining Orders (TRO)

A
  • A TRO is an emergency remedy used to maintain the status quo pending a PI hearing.
  • The party moving for a TRO must show:
    1. an irreparable harm to the movant;
    2. a likelihood of success on the merits;
    3. legal remedies are inadequate; and
    4. balancing of the hardships favors the moving party.

Irish Lads Inhale Beer

23
Q

Equitable Remedies

Preliminary Injunction (PI)

A
  • A PI maintains the status quo pending a full trial on the merits.
  • A court may issue a PI only upon notice to the adverse party.
  • The party moving for a PI must show the same factors as a TRO.
24
Q

Equitable Remedies

Permanent Injunction

A
  • A permanent injuction is issued after a full trial on the merits.
  • A party seeking a permanent injunction must demonstrate that:
    1. it has suffered an irreparable injury;
    2. legal remedies are inadequate; and
    3. balancing of the hardships to both parties.

Irish Inhale Beer

25
Q

Equitable Restitution

Constructive Trust

A
  • A constructive trust is available if a D:
    1. wrongfully acquired title to property; and
    2. would be unjustly enriched if allowed to keep the property.
  • The court will require the D to hold the property as a trustee, and then return it to the P.
  • A P may trace his property to other forms, and is entitled to any increase in value of the property.
26
Q

Equitable Restitution

Equitable Lien

A
  • An equitable lien is available if a D:
    1. wrongfully acquired title to property; and
    2. would be unjustly enriched if allowed to keep the property.
  • The court will force the sale of the property, and the P will receive the proceeds.
  • A P may trace his property to other forms, but he is not entitled to any increase in value of the property.
  • Unlike a constructive trust, the P is entitled to a deficiency judgment for any shortfall.
27
Q

Equitable Remedies

Ejectment

A

Ejectment allows the recovery of specific real property, if:
1. the D is wrongfully withholding the property; and
2. the P has a right to possess the property.

28
Q

Defenses

Laches

A

Laches bars a P’s recovery when:
1. there is an unreasonable delay between when the P learned of the injury/breach and when the action was brought; and
2. the D is prejudiced by the delay.

29
Q

Defenses

Unclean Hands

A

The doctrine of unclean hands bars a P’s recovery when a P has conducted herself unfairly in the transaction in dispute.

30
Q

Defenses

Mitigation of Damages

A
  • A party must take reasonable steps to mitigate his losses.
  • A P cannot recover damages as a result of a breach that could have been avoided.
31
Q

Defenses

Intentional & Negligent Misrepresentation

A
  • To state a prima facie case for Intentional Misrepresentation, a P must show:
    1. misrepresentation of a material fact;
    2. the D knew that the statement was false;
    3. intent of the D to induce the P;
    4. actual and reasonable reliance by the P; and
    5. damages.
  • To state a prima facie case for Negligent Misrepresentation, a P must show:
    1. a misrepresentation by the D in a business transaction;
    2. the D was negligent in obtaining or communicating the false information;
    3. intent of the D to induce the P;
    4. actual and reasonable reliance by the P; and
    5. damages.

Cal Bar Essay Outlines (13 decks)

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