Remedies Flashcards
Compensatory damages
Awarded to compensate Pla for injury or loss.
Limited by:
1. but for causation
2. proximate cause forseeability
3. capable of calculation with certainty
4. duty to mitigate
General damages (related to the tort) Specific damages (related to the individual)
Either compensatory or restitution
Torts remedies
Legal restitution
Pla recovers for Def’s unjust enrichment.
Either compensatory or restitution
Torts remedies
Replevin
Recovery before trial of specific chattel wrongfully taken from plaintiff.
Torts remedies
Ejectment
Used to recover real property.
Torts remedies
Equitable restitution
Available when money damages are inadequate.
Torts remedies
Constructive trust
If improperly retained property has changed form because it was sold or exchanged for new property, the rightful owner can “trace” and obtain a constructive trust for the new property. The plaintiff recieves the benefit of any increase in property value. The property must be solely traceable to its current form so that title may be transfered.
When funds are comingled into a single account there is a presumption that the wrongdoer spends their own funds first. One traced funds are withdrawn they are gone if they cannot be traced to a new piece of property.
BFP (ie secured creditor) prevails over plaintiff who prevails over unsecured creditor. No deficiency judgment awarded.
Torts remedies
constructive trust is better if value goes up, equitable lien if value goes down
Equitable lien
Creates a security interest in property owned by the defendant.
1. wrongful act led to retention of property
2. defendant has title in the property
3. Inadequate legal remedy (ie real property or unique personal property)
Property can be traced for an equitable lien and need not be solely traceable unlike a constructive trust. Lowest intermediate balance rule applies (def spends own money first, withdrawn proceeds are gone). BFP (ie secured creditor) has priority over plaintiff who has priority over unsecured creditors.
DEFICIANCY JUDGEMENTS ARE ALLOWED
Torts remedies
thief has legal title to stolen money but not to other stolen property
constructive trust is better if value goes up, equitable lien if value goes down
Temporary restraining order
Notice required but may be obtained ex parte if party can show:
1. irreparable harm
2. likelihood of success on the merits
3. inadequate legal remedy
4. balancing of hardships favors plaintiff
5. No defense available
Torts remedies
Preliminary injunction
- irreparable harm
- likelihood of success on the merits
- inadequate legal remedy
- balancing of hardships favors plaintiff
- No defense available
same as TRO but not ex parte
Torts remedies
Permanent injunction
- Inadequate legal remedy
- Feasible enforcement
- Balancing of hardships favors plaintiff
- No defenses
Torts remedies
Expectation damages
Value of the benefit expected from the K. Limited by:
1. Causation
2. Forseeable to a reasonable person at time of K formation
3. Calculated with reasonable certainty
4. Duty to mitigate
5. Liquidated damages clause controls
In addition to consequential damages
K remedies
Consequential damages
Direct and foreseeable consequence of breach. Limited by:
1. Causation
2. Forseeable to a reasonable person at time of K formation
3. Calculated with reasonable certainty
4. Duty to mitigate
5. Liquidated damages clause controls
In addition to expectation damages
K remedies
Incidental damages
Costs incurred while other party in breach.
Reliance damages
Put plaintiff in same position had the K not been made.
Used instead of expectation damages when too difficult to calculate
K remedies
Legal restitution
Appropriate to prevent unjust enrichment.
K remedies
Rescission
Invalidate a K if:
1. no meeting of the minds
2. available to wronged party
3. No defenses
Reformation
- meeting of the minds
- K doesnt reflect agreement because of error
- available to wronged party
- No defenses
K remedies
Specific performance
- Valid K
- K conditions satisfied
- Mutuality of performance
- Feasibility of enforcement
- No defenses
K remedies
