remedies Flashcards

1
Q

compensatory damages equation

A

expectation + consequential + incidental - (failure to mitigate + costs avoided)

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2
Q

compensatory damages torts

A

injury, pain and suffering, med expenses, lost wages

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3
Q

compensatory damages contracts

A

injured party in same position as if K was performed. K price and FMV

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4
Q

consequential damages

A

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

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5
Q

liquidated damages

A

enforceable unless unreasonable in light of

-anticipated loss at time K was entered into
-actual loss caused by breach

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6
Q

reliance damages

A

incurred in reasoanble reliance upon promise that other party will perform

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7
Q

restitution

A

measured by benefit conferred on D by P and unjust enrichment theory

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8
Q

incidental damages

A

from trying to remedy breach

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9
Q

TRO/Prelim injunction elements

A

-P suffers irreparable harm, $ not enough
-likelihood of success on merits
-balancing burdens: P>D
-enforceability /supervision by court

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10
Q

permanent injunction

A

-irreparable harm, $ not enough
-balancing burdens: P>D

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11
Q

specific performance

A

-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

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12
Q

rescission

A

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

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13
Q

reformation

A

judicial rewriting

if mutual mistake or unilateral mistake (if other party knew of mistake or fraudulently induced)

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14
Q

constructive trust

A

-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

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15
Q

equitable lien

A

-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

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16
Q

purchase money resulting trust

A

one party purchases property and obtains title but plaintiff supplied all or part of consideration

trust to give back to P

17
Q

replevin

A

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.

18
Q

ejectment

A

regain possession if P establishes title to land and right to immediate possession

19
Q

defenses to equitable remedies

A

laches
unclean hands
inequitable result

20
Q

laches

A

if non-breaching party waited unreasonably long time and delay prejudiced breaching party

21
Q

unclean hands

A

if non-breaching party engaged in unethical or immoral acts relating to K

22
Q

punitive damages

A

meant to punish a D that engages in serious misconduct with an improper state of mind

not for negligence

23
Q

mitigation

A

P has duty to mitigate her damages to extent possible by minimizing harm, seeking replacement goods or services. This is a reasonableness standard.