Remedies Flashcards
Punitive Damages
may be awarded if clear and convincing evidence establishes D acted willfully, wantonly, recklessly or with malice.
Generally not recoverable for contract actions
Nominal Damages
recoverable when there’s no actual injury. if actual injury is part of required elements for claim, can’t get nominal damages
consequential damages
damages awarded if reasonable person could foresee at formation such damage could result from breach
expectation damages
intend to put the nonbreaching party in position they would be in had contract been performed. Must be foreseeable and able to be calculated w/reasonable certainty.
(K price – Mkt value at time of breach)
liquidated damages
damages that are determined at time K is formed. if amount is reasonable and doesn’t act as a penalty, then enforceable
quantum merit
breaching party can recover damages for reasonable value of services provided (Reasonable value for services – damages incurred)
specific performance
(1) valid K (2) terms are definite and certain (3) conditions for performance have been met (4) legal remedy is inadequate – property is unique, (5) relief is equitable (6) feasibility of enforcement
restitutionary damages
value of benefit given. measured by market value of services performed. can either choose restitution or expectation damages not both
reliance damages
puts parties in position prior to K. Any amount of money paid in reliance of promise. Damages can’t exceed K price
incidental damages
out of pocket damages. compensation for commercially reasonable expenses incurred as a result of breach
mitigation
party has obligation to avoid damages to extent possibly by taking steps to prevent loss when steps don’t involve undue risk, expenses or inconvenience
reformation
modifies written K to conform with parties’ original understanding
- mutual mistake
- unilateral mistake
Reformation requires a showing of a valid contract, a proper ground to request it, and there must not be any defenses to the granting of it
reformation - mutual mistake
if bother parties are unaware of mistake, writing may be reformed to conform to intended agreement
reformation - unilateral mistake
if one party is mistaken as to contents of writing, reformation may be available based on whether other party was aware. If other party is aware and has either (1) fraudulently induced mistaken belief or (2) failed to correct it, mistaken party can seek reformation
rescission
meant to put parties in position they were in prior to contract formation
Grounds – mistake, misrepresentation, undue influence, misunderstanding, lack of capacity, illegality
replevin
Through a replevin action, the plaintiff can both regain possession of the property and recover damages for the loss of use of the property. legal remedy that permits P to recover before trial, possession of chattel wrongfully taken. Person seeking replevin must be rightful owner of property
ejectment
legal remedy to remove person in possession of real property and return possession to plaintiff that was wrongfully ousted
defenses
- unclean hands
- laches
unclean hands
party has engaged in serious misconduct in close relation to the claim
laches
unreasonable delay that causes prejudice to the other party
Temporary restraining order
(i) P will suffer irreparable harm if the injunction is not issued,
(ii) balance of hardships in P’s favor
(iii) there is a likelihood that the plaintiff will succeed on the merits of their claim.
Lasts 14 days. Preserves status quo until preliminary hearing can take place
preliminary injunction
issued after notice is given to the defendant and after the defendant is given an opportunity to be heard.
(1) irreparable harm w/o injunction, (2) likelihood of success on merits, (3) balance of hardships in favor of P, (4) feasibility of enforcement
intentional misrepresentation (fraud)
P must show that the D knowingly or recklessly misrepresented a material fact with the intent to induce the P’s reliance, and that the P justifiably relied on the D’s misrepresentation and suffered monetary loss.
promissory estoppel
an equitable doctrine that can be used to enforce a promise that is not supported by consideration.
The promise is binding if reliance upon a promise was reasonably foreseeable, there was actual inducement or forbearance, and detrimental reliance such that injustice can be avoided only by enforcement of the promise.
