remedies Flashcards
compensatory damages equation
expectation + consequential + incidental - (failure to mitigate + costs avoided)
compensatory damages torts
injury, pain and suffering, med expenses, lost wages
compensatory damages contracts
injured party in same position as if K was performed. K price and FMV
consequential damages
foreseeable: natural and probable consequences or actually contemplated by parties at time of K
causation: damages caused by D’s action
certainty: $ amount with reasonable certainty
liquidated damages
enforceable unless unreasonable in light of
-anticipated loss at time K was entered into
-actual loss caused by breach
reliance damages
incurred in reasoanble reliance upon promise that other party will perform
restitution
measured by benefit conferred on D by P and unjust enrichment theory
incidental damages
from trying to remedy breach
TRO/Prelim injunction elements
-P suffers irreparable harm, $ not enough
-likelihood of success on merits
-balancing burdens: P>D
-enforceability /supervision by court
permanent injunction
-irreparable harm, $ not enough
-balancing burdens: P>D
-property right of P
-enforceability
specific performance
-valid K
-no defenses
-condition precedents satisfied: such that performance is due from party seeking to compel
-terms definite enough for order
-laches/unclean hands/inequitable
-irreparable harm ($ not enough)
-enforceability
rescission
avoiding or unmaking of K if:
-grounds (misrepresentation/fraud, mutual mistake, unilateral mistake)
-P gave notice to D when grounds discovered
- at law: return benefit when filed action; at equity: return benefit after suit concluded
reformation
judicial rewriting
if mutual mistake or unilateral mistake (if other party knew of mistake or fraudulently induced)
constructive trust
-unjust enrichment of D
-D holds title to property subject to constructive trust
-traceable to current form
-legal remedy is inadequate
-if granted, P’s claim is fully satisified
equitable lien
-unjust enrichment of D
-D holds title
-$ is inadequate
-traceable to current form
-can get additional satisfaction if forced sale doesn’t cover original amount
purchase money resulting trust
one party purchases property and obtains title but plaintiff supplied all or part of consideration
trust to give back to P
replevin
recover personal property and gets damages for loss of use
Tort → $
K → can use to recover property that P is entitled to under K
Timing: As long as D is still in possession, P can recover the chattel before trial. But, to do so, plaintiff will have to post a bond.
And, defendant may defeat an immediate recovery by posting a re-delivery bond. Through which, the defendant can keep the chattel until after the trial.
ejectment
regain possession if P establishes title to land and right to immediate possession
defenses to equitable remedies
laches
unclean hands
inequitable result
laches
if non-breaching party waited unreasonably long time and delay prejudiced breaching party
unclean hands
if non-breaching party engaged in unethical or immoral acts relating to K
punitive damages
meant to punish a D that engages in serious misconduct with an improper state of mind
not for negligence
mitigation
P has duty to mitigate her damages to extent possible by minimizing harm, seeking replacement goods or services. This is a reasonableness standard.
nuisance damages
any depreciation in the value of the property. All resulting harm is recoverable, including damages for reduction in the value of real property, personal injury, and harm to personal property.
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
