Remedies Flashcards
Legal Tort Remedy - Compensatory Damages
Based on the injury to the P, intended to put them in the position they would have been had the injury not occurred. Requires:
- Causation - Actual or “But For” Causation
- Foreseeability - Proximate Causation at time of tortious act
- Certainty - may not be speculative
- Unavoidability - P must take reasonable steps to mitigate the damages
Legal Tort Remedy - Compensatory Damages - Certainty of PI Damages
For past damages, look to any analogous historical evidence. For Future Damages must show they are more likely to happen than not.
Economic Loss (Special Damages) - basic certainty rules apply which means calculations must be with sufficient certainty
Non-Economic Losses (General Damages) - Jury can award any amount it wishes subject to the proper instructions.
Payment must be in a lump sum (modern view takes into account inflation from time of tortious act)
Legal Tort Remedy - Nominal Damages
These are awarded where P has no actual injury and serve to establish or to vindicate the P’s rights.
Legal Tort Remedy - Punitive Damages
Intended to punish D for reprehensible conduct. Requires:
- P must first be awarded compensatory, nominal, restitution damages
- D’s fault must be greater than that of negligence
- An award in general proportion to the actual damages
Restitution Tort Remedy - Restitutionary Damages
Value of Benefit to the Defendant. Sometimes occurs where there is no real injury to Plaintiff. Often occurs where both compensatory and restitutionary are theoretically available. P cannot recover both compensatory and restitutionary, usually gets the larger sum.
Restitution Tort Remedy - Replevin
Recover possession of personal prop. through the sheriff. Must establish that:
- P has a right to possession
- There is a wrongful withholding by D
Procedure: (1) There must be some preliminary judicial hearing, (2) P will have to post bond, (3) D can defeat an immediate recovery by posting a redelivery bond, (4) P can recover the prop. before the trial.
Restitution Tort Remedy - Ejectment
Recover possession of specific real property through sheriff. Must establish:
- P has a right to possession
- D has wrongfully withheld possession of the prop.
Tort Equitable Restitution Remedy - Constructive Trusts & Equitable Liens
Both would be used in cases where the prop. at stake is unique or Def. is insolvent
Constructive Trust: Improperly acquired prop. to which D has title. D serves as trustee and must return the prop. to plaintiff. Used when the value of the prop. has increased.
Equitable Lien: Improperly acquired prop to which D has title. Prop ill be subject to court-directed sale. The monies received go to P. If the proceeds of the sale are less than the fair market value of the proper when it was taken, a deficiency judgment will issue for the difference and can be used against D’s other assets. Used when prop. value went down.
Tort Equitable Remedy - Temporary Restraining Order
Issues for 10 days pending preliminary hearing. Test identical to preliminary injunction but may be ex parte on evidence of good faith effort.
Tort Equitable Remedy - Preliminary Injunction
Prior to full trial on the merits awarded if (1) irreparable injury while waiting for trial, (2) balance of hardships, (3) balance of hardships favors plaintiffs, and (4) no applicable defenses. Mandatory Injunction will not issue if it creates an enforcement issue.
Contract Legal Remedy - Damages
Requires (1) actual causation, (2) foreseeability, (3) certainty, and (4) mitigation.
Direct Compensatory Damages flow inherently from the wrong (expectation damages)
Consequential Damages available for related damages foreseeable at the time of the contract. Lost reputation can be recoverable if it was communicated to the Def. and thus foreseeable.
Incidental, Nominal damages allowed, Punitive are not.
Contract Legal Remedy - Liquidated Damages
Allowed when:
- damages are difficult to ascertain at the time of the contract and
- represent a reasonable forecast of damages
If the amount is excessive, void as a penalty. If liquidate are deemed valid, the P only gets liquidated damages but if they are invalid P can recover actual damages instead.
Contract Legal Remedy - Restitution
Contract is unenforceable - P gets value of benefit conferred, even if greater than the unenforceable contract rate. P can also get any property back if unique or D is insolvent.
Contract is Breached:
- Non-Breaching Party - Gets value of benefit conferred even if greater than the breached contract rate.
- Breaching Party - Traditional view is no recovery available, but modern view permits in an amount reduced by an damages to non-0breaching party.
Contract Equitable Remedy - Specific Performance
Requires:
- Contract is valid, certain, and definite
- Plaintiff’s duties have been satisfied (i.e. buyer paid for construction work not completed)
- Inadequate Legal Remedy (all real property is unique, a seller of land can get specific performance even though all they receive is money)
- Enforcement is feasible (Personal Service Contracts are not specifically enforceable) (Covenants not to compete are if the service is unique and the scope, geographic limitation, and duration are reasonable)
- No applicable defenses (unclean hands, laches, unconscionability, mistake, misrepresentation, SOF)
Contract Equitable Remedy - Rescission
The original contract is voidable and rescinded. Must be grounds for rescission (contract formation showing lack of assent) and (2) no valid defenses.
- Mutual Mistake of Material Fact - Rescission granted unless its to a collateral fact.
- Unilateral Mistake - Rescission denied, unless non-mistaken party had reason to know of the mistake
- Misrepresentation - rescission granted if Plaintiff actually relied
- Defenses - laches, unclean hands, but not P’s negligence
- Election of Remedies - If P sues for damages first, rescission is not allowed (not vice versa, although P must elect one remedy before judgement)
- Availability of Restitution - if previously rendered performance but now entitled to rescission, can get restitution and rescission
Contract Equitable Remedy - Reformation
Changes written agreement to conform with the parties’ original understanding.
- A valid contract - meeting of the minds
- Grounds for reformation (mutual mistake but not unilateral mistake)
- No defenses (unclean hands, laches)
