Remedies Flashcards
What are the available legal remedies for breach of contract?
The following legal remedies are available for breach of contract:
- expectation damages;
- reliance damages;
- restitution damages;
- incidental damages; AND
- consequential damages.
Punitive damages are generally NOT available in a breach of contract action, but may be awarded in a contract action involving corresponding tort claims that allow such damages (i.e. fraud).
What are expectation damages?
Expectation damages arise directly from the breach and aim to put the non-breaching party in the same position it would have been in had the contract been performed – the benefit of the bargain. To recover, the damages must be:
- caused by the defendant;
- foreseeable;
- unavoidable; AND
- certain.
What are reliance damages and when are they available?
Reliance damages constitute reimbursement for expenditures made in reliance on a contract.
The purpose is to put the non-breaching party in the position they would have been if the contract never existed.
Reliance damages are available when:
- a plaintiff acted in reliance on the defendant’s agreement; AND
- the reliance was foreseeable.
What are consequential damages?
Consequential damages arise indirectly from the breach due to the injured party’s special circumstances.
Consequential damages are available when they are:
- from special circumstances known to the defendant;
- reasonably foreseeable; AND
- reasonably certain.
What are incidental damages?
Incidental damages are reasonable expenses incurred as a result of a breach of contract, such as costs of storing or returning non-conforming goods.
What are restitution damages?
Restitution is awarded to prevent unjust enrichment and is based on the value of the benefit conferred upon the defendant. A party cannot recover both expectation and restitution damages.
What are liquidated damages?
Liquidated damages will be enforced if: (1) the amount is difficult to estimate at the time the contract was formed; AND (2) the amount is reasonable to the actual damages suffered.
What damages can a buyer recover for breach of contract concerning the sale of land?
The buyer may recover: (1) any amount paid; (2) the difference between the fair market value and the contract price; (3) expenses incurred in investigating title; (4) expenses for preparing to occupy the land; (5) possible consequential damages; AND (6) interest.
What remedies does a buyer have under the UCC?
A buyer may: (1) cancel the contract; (2) recover any amount paid; (3) recover Cover Damages or Market Damages; AND (4) recover Incidental and Consequential damages.
What are Cover Damages?
Cover Damages are the difference between the contract price and the price of substitute goods, used if the buyer covered in good faith.
What are Market Damages?
Market Damages are the difference between the market price at the time of breach and the contract price, used if the buyer did not cover in good faith.
What remedies does a seller have under the UCC?
A seller may: (a) withhold delivery; (b) cancel; (c) recover cover damages; (d) recover market damages; (e) recover lost profits if a lost volume seller; (f) stop delivery of goods; (g) replevy identified goods in certain instances.
What is a quasi-contract?
A quasi-contract is implied by law to prevent unjust enrichment, created if: (1) the plaintiff confers a benefit; (2) had a reasonable expectation of compensation; (3) the defendant requested the benefit; AND (4) the defendant would be unjustly enriched.
What is reformation in contract law?
Reformation allows a contract to be changed to conform to the parties’ original intent if a valid contract exists, but there was a misrepresentation or mutual mistake.
What is rescission in contract law?
Rescission treats the original contract as cancelled and is available if there was a problem with the formation of the contract.
What is specific performance?
Specific performance is a remedy available when: (1) a valid contract exists with clear terms; (2) the plaintiff has performed or is ready to perform; (3) legal remedies are inadequate; (4) enforcement is feasible; AND (5) no valid defenses exist.
What are the available legal remedies in tort actions?
The following damages are available: (1) compensatory damages; (2) consequential damages; (3) nominal damages; (4) punitive damages; AND (5) restitution damages.
What are compensatory damages?
Compensatory damages attempt to put the injured party in the same position it would have been but for the injury. To recover, damages must be: (1) caused by the defendant; (2) foreseeable; (3) certain; AND (4) unavoidable.
What are nominal damages?
Nominal damages are available when the plaintiff has NOT suffered an actual injury but still wants to establish rights.
What are punitive damages?
Punitive damages are awarded to punish the defendant and are available if: (1) the plaintiff was awarded actual damages; (2) the punitive damages are proportional; AND (3) the conduct was willful, malicious, or egregious.
What are damages for fraud?
Damages for fraud are either: (a) actual losses suffered; OR (b) the benefit-of-the-bargain.
What are damages for conversion of property?
For conversion, a plaintiff may recover either: (a) possession of the property; OR (b) the fair market value at the time of conversion.
What are damages for trespass to chattels?
In an action for trespass to chattels, the damages awarded are the actual damages suffered, which may include the cost of repairs.
What are damages for trespass to land?
In an action for trespass to land, damages are measured by either: (a) the diminution in value; OR (b) the cost to repair the property.
What is a Temporary Restraining Order (TRO)?
A TRO is an emergency remedy to maintain the status quo pending a hearing and is available when the plaintiff will suffer immediate and irreparable harm.
What are the requirements for issuing a TRO ex parte?
The court may issue an ex parte TRO if the moving party: (1) provides specific facts showing immediate harm; (2) certifies efforts to give notice; AND (3) gives security as deemed proper.
What is the expiration of an ex parte TRO in Federal Court?
An ex parte TRO automatically expires after 14 days unless extended for good cause or with opposing party consent.
What is required for an ex parte TRO to be issued in Federal Court?
It must give notice to the adverse party and provide security in an amount deemed proper by the court.
In Federal Court, the United States, its officers, and its agencies are not required to give security.
How long does an ex parte TRO last in Federal Court?
An ex parte TRO automatically expires after 14 days unless the court sets a shorter expiration.
What can a court do regarding the expiration of an ex parte TRO?
A court can extend the expiration for good cause or if the opposing party consents to the extension.
What happens if an ex parte TRO is granted in California?
A hearing for the preliminary injunction will be set no later than 15 days (or 22 days if there’s good cause) from the date the TRO is issued.
What is a preliminary injunction?
A preliminary injunction maintains the status quo pending the outcome of an action to protect against irreparable harm.
What are the requirements for issuing a preliminary injunction?
It requires notice to the adverse party and security in an amount deemed proper by the court.
What must the moving party show for a preliminary injunction?
The moving party must show: (1) likelihood of success on the merits; (2) likely threat of irreparable harm; (3) balancing of hardships in favor of the moving party; (4) injunction is in the public interest.
When should a motion for a preliminary injunction be denied?
If the moving party has an adequate remedy at law.
What types of injunctions can a court issue?
A court can issue a restraining injunction or a mandatory injunction.
What is a permanent injunction?
A permanent injunction is issued after a full trial on the merits.
What are the requirements for a permanent injunction?
It requires: (1) inadequate legal remedies; (2) a protectable personal or property interest; (3) feasibility of enforcement; (4) balancing of hardships; (5) no valid equitable defenses.
What is a declaratory judgment?
A declaratory judgment determines the rights and obligations of the parties.
When can a Federal Court issue a declaratory judgment?
Only when there is a case of actual controversy that meets justiciability requirements under Art. III of the Constitution.
What are the requirements for a declaratory judgment action?
It must involve: (1) a substantial controversy; (2) adverse legal interests; (3) sufficient immediacy and reality.
What is an equitable lien?
An equitable lien is available if a defendant wrongfully acquired title to property and would be unjustly enriched by keeping it.
What happens if the proceeds from a forced sale are less than the property’s value?
The plaintiff is entitled to a deficiency judgment.
What is a constructive trust?
A constructive trust is an equitable remedy to prevent unjust enrichment from wrongful conduct.
What are the requirements for a constructive trust?
It is available if a defendant wrongfully acquired title to property and would be unjustly enriched by keeping it.
What is replevin?
Replevin allows the recovery of specific personal property wrongfully withheld by a defendant.
What are the requirements for replevin?
The plaintiff must have a right to possess the property and there must be a preliminary judicial hearing.
What is ejectment?
Ejectment allows the recovery of specific real property wrongfully withheld by a defendant.
What is a Purchase Money Resulting Trust (PMRT)?
A PMRT arises when one party provides consideration for the purchase of real property but titles it to another.
What is a Pro Rata Resulting Trust?
A Pro Rata Resulting Trust arises when one party provides partial consideration for property titled in another’s name.
What is the defense of laches?
Laches bars recovery when there is an unreasonable delay in bringing an action that prejudices the defendant.
What is the doctrine of unclean hands?
It bars recovery when a plaintiff is guilty of unethical or improper conduct related to the lawsuit.
What is the mitigation of damages principle?
A plaintiff cannot recover damages that could have been avoided by taking reasonable steps.
What are the elements of intentional misrepresentation?
To establish a case, a plaintiff must show: (1) misrepresentation of a material fact; (2) knowledge of falsity; (3) intent to induce; (4) reliance; (5) damages.
What are the elements of negligent misrepresentation?
A plaintiff must show: (1) misrepresentation; (2) supplied for guidance; (3) knowledge or should have known; (4) negligence; (5) reliance; (6) damages.
What is concealment in relation to misrepresentation?
Concealment is an affirmative act to keep another from learning a fact and is equivalent to misrepresentation.
