Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Prep Summer 2014 > Remedies > Flashcards

Remedies Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Compensatory Damages

A

“Benefit of the bargain” damages
-Puts the part back where she would have been absent the breach.

Expectation damages: cost to purchase a substitute.

Reliance: if costs are too speculative to calculate expectation, include damages incurred in dealing with breach (shipping, storage, etc.) CANNOT have both expectation and reliance.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

4 Elements of Damages

A
  1. Causal: caused by the breach
  2. Certain: not speculative
  3. Foreseeable: at the time of contracting
  4. Unavoidable: cannot be mitigated
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

UCC: Buyer’s Damages for Seller’s Non-Delivery

A

Buyer receives damages of the difference between contract price, and cost of replacement at time of breach or market price at time of breach.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

UCC: Buyer’s Damages if Seller Delivers Non-Conforming Goods

A

If buyer accepts the goods, damages are the measure of the difference between value delivered and value under the contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

UCC: Buyer’s Damages if seller Anticipatorily Breaches

A

Measure of damages is the difference between price at the time buyer learned of the breach, and the contract price.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

UCC: Consequential Damages

A

Consequential damages are generally not recoverable under the UCC, unless the seller knew or had reason to know of the buyer’s particular requirements, and subsequent loss cannot be prevented by cover.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

UCC: Seller’s Damages if Buyer Repudiates

A

In addition to incidental damages, seller can recover the difference between the market price at time of delivery and the contract price

If LOST VOLUME seller, can recover expected profit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Incidental Damages

A

Damages incurred in dealing with the breach, such as finding a replacement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Punitive Damages

A

Typically not available in contracts cases; punitives are designed to punish D for his wrongful conduct.

Factors the court will consider include: degree of reprehensibility of defendant’s conduct, ration of puintives to compensatory damages, and civil or criminal penalties for the offense. Possible 8th Amendment implications.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Nominal Damages

A

May be awarded where a breach is shown, but there are no actual damages or losses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Liquidated Damages

A

A contract may contain a liquidated damages clause, which stipulates the damages in event of a breach.

Awarded if damages for breach are difficult to estimate or ascertain at the time of contracting, and the agreed upon amount is a reasonable forecast of compensatory damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Specific Performance (Restitutionary Remedy)

A

Requirements:

  1. Valid and enforceable contract
  2. Definite and certain terms
  3. Inadequate legal remedy (non-breaching party is insolvent, or the good is rare/unique/land)
  4. Satisfaction of conditions: has non-breaching party actually paid the purchase price? Condition can be excused by anticipatory repudiation
  5. Feasibility of enforcement
  6. Inapplicability of defenses
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Rescission (Restitutionary Contract Remedy)

A

Rescission is an undoing of the contract, whereby the original contract is considered voidable and rescinded and the parties are left as though it never existed.

No meeting of the minds (as opposed to reformation, where meeting of the minds but document does not reflect it).

Grounds for rescission include:

  1. Mutual mistake as to the basis of the bargain
  2. Unilateral mistake, if other party knew or should have known of the mistake, and hardship is so extreme that it warrants remedy
  3. Misrepresentation of a material fact that was relied upon
  4. Undue influence, duress, illegality, etc.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Defenses to Rescission

A

Unclean hands, laches

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Reformation (Contract Remedy)

A

The writing setting forth the agreement between the parties is changed so as to conform to the parties’ original intent. Requires an otherwise valid contract (meeting of the minds)

-Reformation is typically based on mutual mistake, such as a scrivener’s error

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Replevin (UCC Remedy)

A

Permitted in a contract for the sale of goods:

  1. Buyer may replevy undelivered, identified goods if, after a reasonable effort, they are unable to cover
  2. If buyer has made at least partial payment and seller has not delivered, can replevy if seller becomes insolvent within 10 days, or goods were for personal/family/household use
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Interlocutory Injunctive Relief (Equitable)

A

Refers to either a TRO or a preliminary injunction. Both require a showing of irreparable harm if the injunction is not granted, and a reasonable likelihood of success on the merits.

TRO: typically granted within 24 hours, and lasts until preliminary hearing or injunction. Emergency order; can be imposed ex-parte if notice would hasten the harm.

Preliminary Injunction: granted after a preliminary hearing, and remains in effect until conclusion of full trial or dissolution by court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Permanent Injunctive Relief (Equitable)

A

Can be obtained upon a showing of:

  1. Inadequate legal remedy
  2. Feasibility of enforcement (courts more inclined to order a negative injunction than a mandatory injunction)
  3. Balancing of hardships
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Laches

A

Equitable defense; applies when a party unreasonably delays in bringing an equitable action and the delay prejudices the defendant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Unclean Hands

A

Equitable defense; when the party seeking specific performance (or another equitable remedy) is guilty of some wrongdoing in the particular transaction, unclean hands can serve as a defense.

21
Q

Misrepresentation

A

Equitable defense; when one party induces another party to act by way of a fraudulent misrepresentation, the contract is voidable by the innocent party, if they justifiably relied on the misrepresentation to their detriment.

22
Q

Unconscionability

A

Equitable remedy; a court may refuse to enforce a contract or contract provision to avoid unfair terms, as determined by the circumstances at the time of formation.

23
Q

Sale to a BFP

A

Equitable defense; sale to a BFP without notice cuts off the right to specific performance.

24
Q

Land Sale Contract Remedies

A

Seller breaches: buyer gets out of pocket losses, or benefit of the bargain damages.

Buyer breaches: seller recovers difference between market value and contract price; may also be able to get specific performance

25
Q

Equitable Conversion (Land Sale Contracts)

A

Arises where there is a specifically enforceable contract for the sale of land, but one of the parties dies or the land is destroyed.

If a party dies, title goes to heirs and they must transfer to purchasing party. If property is destroyed, risk of loss generally on the buyer.

26
Q

Construction Contract Remedies

A

Owner breaches: builder can recover profit he would have made, plus costs of materials; if after completion, builder recovers full contract price, but must mitigate.

Builder breaches: owner typically entitled to cost of completion plus reasonable compensation for delay. If late performance, owner recovers for not being able to use property while waiting.

27
Q

Personal Services Contracts Remedies

A

If employee breaches, employer recovers cost of obtaining a replacement, and restitution for paid but unearned wages.

If employer breaches, employee can recover the wages due or promised, but has a duty to mitigate

28
Q

Personal Injury Damages (Torts)

A

Can recover past and future economic losses proximately caused by the injury (medical expenses, loss of earnings, etc), as well as past and future non-economic loss (pain and suffering)

29
Q

Severance from Realty (Torts)

A

Can recover for diminution in value of land, or conversion

30
Q

Continuing or Permanent Trespass (Torts)

A

Continuing: rental value of occupied land; permanent: market value of occupied land

31
Q

Destruction of or Injury to Realty (Torts)

A

Difference between value of land before and after injury.

32
Q

Nuisance Damages (Torts)

A

Cost to abate, loss of use and enjoyment, or emotional distress

33
Q

Destruction of Easement (Torts)

A

Difference between value of land before injury, and value after

34
Q

Restitutionary Remedies (Torts)

A

Based on the theory that the defendant should not be unjustly enriched; may be awarded when legal remedies are insufficient for some reason.

(Remedy in quasi-contract, because does not require existence of a contract)

35
Q

Replevin (Torts)

A

Permits a P who holds legal title to recover possession of specific, personal property.

Must show both an immediate right to possession, as well as a wrongful withholding by defendant; sale to a BFP without notice cuts off remedy of replevin.

36
Q

Ejectment (Torts)

A

Permits a P who holds legal title to eject a D who is wrongfully withholding real property. Sheriff will eject a defendant from the property.

37
Q

Constructive Trusts (Torts/Property)

A

May be imposed if the movant can demonstrate that it is necessary to avoid unjust enrichment because defendant has wrongfully acquired title, and the value of the property has gone UP.

-Forces defendant to give the property back, by transferring title to the plaintiff.

38
Q

Equitable Lien (Torts/Property)

A

Similar to a constructive trust, but does not require title - improvements suffice.

May be imposed if the movant can demonstrate that it is necessary to avoid unjust enrichment because the defendant has wrongfully acquired title or made improvements to P’s property.

-Court directed sale; possibility of a deficiency judgment. Remedy cut off by transfer to a BFP.

39
Q

Damages for Misappropriation of Money (Torts)

A

Restitution in quasi-contract, constructive trust if plaintiff can identify and trace money, equitable lien where money used for improvements.

40
Q

Damages for Destruction of Chattels (Torts)

A

Value of the chattel at the time it was destroyed, less salvage

41
Q

Damages for Injury to Chattels (Torts)

A

Damages may be measured by either diminution in value or cost of repair, plus loss of use (conversion)

42
Q

Damage for Dispossession of Chattels/Conversion (Torts)

A

Market value at the time of conversion, plus expenditures in pursuit of property

43
Q

Damages for Trespass to Chattels (Torts)

A

Standard measure of damages is nominal damages or damages for loss of use

44
Q

Damages for Trespass to Land (Property)

A

Simple trespass: nominal damages if no actual injury; also, consider injunctive relief

45
Q

Damages for Trespass Causing Severance (Property)

A

Ex: removing timber or minerals from the land; measure of damages is diminution in value of the land. Also, consider replevin, restitutionary damages, injunctive relief

46
Q

Damages for Encroachments (Property)

A

Continuing trespass: measured by the rental value of occupied land

Permanent trespass: market value of occupied land

47
Q

Damages for Waste (Property)

A

Voluntary waste: diminution in value; permissive waste: cost of repair; ameliorative waste: damages not available so consider injunctive relief

48
Q

Damages for Nuisance (Property)

A

Damages for loss of use and enjoyment, costs of abatement, emotional distress, injunctive relief

49
Q

Purchase Money Resulting Trust (Property)

A

Court may impose a PMRT after a sale of property, in which one person takes legal title and the other provides consideration, before or at the same time the other takes title.

-Person who obtained title: deemed trustee, whose sole duty is to convey title to person who furnished consideration. Title on a pro-rata basis, if beneficiary only paid part of the purchase price.

Bar Prep Summer 2014 (11 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions