Remedies

Question 1

Torts Remedies

Answer 1

1) Actual Damages
2) Nominal Damages
3) Punitive Damages
4) Incidental Damages
5) Replevin
6) Ejectment
7) Constructive Trusts
8) Equitable Liens
9) Temporary Restraining Order
10) Prelminary Injunction
11) Permanent Injunction

Question 2

Contracts Remedies

Answer 2

1) Expectation Damages
2) Consequential Damages
3) Incidental Damages
4) Liquidated Damages
5) Replevin
6) Money Restitution
7) Rescission
8) Reformation
9) Specific Performance

Normally punitive damages aren’t applicable, requires proof of malice an a non-contract action eligible for punitives.

Question 3

Compensatory Damages

Answer 3

These damages are required to compensate a plaintiff for their contractual damages, includes both Expectation and Consequential damages. In order to receive compensatory damages, they must be foreseeable, causal, certain and unavoidable, and may not be awarded if there has been a failure to mitigate damages.

Question 4

Expectation Damages

Answer 4

These damages include all expected profits or costs that would have been realized if the contract was fully performed by the breaching party, placing the non-breacher in the postiion they would have been if there was no breach. In order to receive expectation damages, they must have been foreseeable, causal, certain and unavoidable, and may not be awarded if there has been a failure to mitigate damages.

Question 5

Consequential Damages

Answer 5

These damages stem indirectly from the breach, but are foreseeable and certain.

Question 6

Reliance Damages

Answer 6

If the plaintiff’s expectation amages are too speculative to measure, they may elect to recover based on reasonable reliance on the contract. Reliance damages award the plaintiff the cost of performance and are designed to place the plaintiff in the position they would have been if the contract had never been formed.

Question 7

Liqidated Damages

Answer 7

These damages are specified within the writing of the contract. Liquidated damages require that the damage be difficult to estimate and will not be enforced if they are unreasonable or punitive in nature.

Question 8

Incidental Damages

Answer 8

These damages are smaller, reasonable costs that stem directly from the breach (Ad costs to replace contract worker who walks out)

Question 9

Nominal Damages

Answer 9

These damages are recoverable when no actual injury is sustained, however, if actual injury is a required element of the claim, nominal damages can’t be recovered.

Question 10

Punitive Damages

Answer 10

These damages may be awardded if clear and convincing evidence establishes that the defendant acted willfully, wantonly, recklessly, or with malice. Not generally available in pure contract actions.

Question 11

Restitution

Answer 11

A legal remedy that protects against another party’s unjust enrichment. It restores a benefit conferred on the other party to a contract.

Question 12

Replevin

Answer 12

An equitable remedy that permits the plaintiff to recover, before trial, possession of the chattel wrongfully taken or detained. The person seeking replevin must be the rightful owner of the property prior to the defendant’s possession.

Question 13

Ejectment

Answer 13

A legal remedy to remove a person in possession of real property and return proper possession to a plaintiff that was wrongfully ousted.

Question 14

Reformation

Answer 14

A court may reform a contract to match the ocntracting parties’ intent at formation. Usually ony available if there was a misrepresentation or mutual mistake that requires conrrection.

Question 15

Rescission

Answer 15

The contract is treated as cancelled due to problems in formation (fraud, misrepresentation, unclean hands, laches, etc.)

Question 16

Specific Performance

Answer 16

A court may order a party to perform a contract when there is: 1) a valid contract with certain terms; 2) there is no adequate legal remedy; 3) feasible enforcement; 4) mutuality of performance; and 5) no valid defenses. (Usually this is applicable to real estate or unique items, not allowed in service contracts due to 13th amendmetn prohibiting involuntary servitude)

Question 17

Inadequate Legal Remedies

Answer 17

When evaluating specific performance, legal, monetary damages are inadequate if they are speculative, the defendant is insolvent, or, most frequently, the item bargained for is unique.

Question 18

Feasible Enforcement

Answer 18

A court will not specifically enforce a promise if enforcement imposes a burden on the court that is disproportionate to the advantages gained from enforcement. (The court issuing a one-time order is feasible, monthly progress check is not)

Question 19

Mutuality of Performance

Answer 19

The aggrieved party must show it is prepared to perform on the contract. (Ex. Someone buying real property but buys a different house during litigation may not have the cash to perform any more, so may be don’t pursue specific performance).

Question 20

Specific Performance Unfairness

Answer 20

Specific performance will not be granted if such relief would be unfair. Factors include defenses, hardship, inadequate consideration and unconscionability.

Question 21

Mitigation of Damages

Answer 21

A plaintiff is required to make best efforts to mitigate damages. If not, their damages may be reduced due to their failure to act. A plaintiff is not required to mitigate unless damages could have been avoided without undue risk, burden or humiliation.

Question 22

Temporary Restraining Order

Answer 22

An equitable remedy used in an emergency to maintian the status quo until the court can hear the case. This restraint lasts for 10 days in state courts, 14 in federal, but can be extended, if needed. The moving party must show a likelihood of success on the merits, imminent irreparable harm, and provide a bond to prevent damage to the non-movant should the court rule in the non-movant’s favor. Notices should be provided to the non-moving party; hoever a TRO can be granted ex parte if needed.

Question 23

Preliminary Injunction

Answer 23

Ensures the status quo after a TRO hearing and until the conclusion of litigation. The moving party must show a likelihood of success on the merits, a likelihood of irreperable harm, a balancing of hardships in favor of the movant and provide a bond should the case fail. Unlike a TRO, Notice is mandatory.

Question 24

Permanent Injunction

Answer 24

A permanent court order which requires a person to do something or refrain from doing something upon completion of trial. It is appropriate when there is inadequate remedy at law, it concerns a proeprty interest, and there is feasibility of enforcement and a balancing of hardships.

Question 25

Constructive Trust

Answer 25

An equitable remedy where the court will require a defendant to hold property in trust, and if later ordered by the court, to then return it to the plaintiff. Preffered by a plaintiff when property goes up in value. Money is also property for purposes of a constructive trust.

Question 26

Equitable Lien

Answer 26

An equitable lien forces sale of property wrongfully held by a defendant with the proceeds being delivered to the plaintiff. Expecting that the proceeds will not exceed the value of the property when it was illegally obtained, the plaintiff will likely seek a deficiency judgment to become whole. A plaintiff will seek this remedy when property goes down in value, constructive trust when it goes up.

Question 27

Laches

Answer 27

A plaintiff is barred from recovery when they purposefully delay bringing suit and that delay materially harms the defendant.

Question 28

Unclean Hands

Answer 28

A plaintiff's case will fail when they are guilty of some sort of illegal or improper conduct related to the matter of the lawsuit.

Question 29

Attachment

Answer 29

Process by which another's property is seized in accordance with a writ or judicial orderr for the purpose of securing a potential judgement. Often a tool used when attempting to sue someone that may go insolvent.