Remedies

Question 1

TORT REMEDIES

Answer 1

TORT REMEDIES

Question 2

TORT DAMAGES

Answer 2

• Compensatory Damages
• Nominal Damages
• Punitive Damages

Question 3

COMPENSATORY DAMAGES

Answer 3

Plaintiff is entitled to compensatory damages to put her in the position she would have been had the wrong not occurred.

Must show:

1. Causation
2. Foreseeability
3. Certainty
4. Unavoidability
5. Calculation

Question 4

Compensatory Damages - Causation

Answer 4

1. Causation: “But for… “

Question 5

Compensatory Damages - Foreseeability

Answer 5

2. Foreseeability: The injury must been foreseeable at the time of the tortuous act

Question 6

Compensatory Damages - Certainty

Answer 6

3. Certainty: The damages cannot be too speculative.
   i. Applies to economic losses (special damages), but not non-economic damages
   (general pain and suffering, disfigurement)
   ii. All or Nothing Rule: For future damages, plaintiff must show that they are more likely to happen than not.

Question 7

Compensatory Damages - Unavoidability

Answer 7

4. Unavoidability: The plaintiff must take reasonable steps to mitigate the damage

Question 8

Compensatory Damages - Calculation

Answer 8

5. Calculation: single lump sum payment, discounted to present value. Forget inflation.

Question 9

RESTITUTIONARY DAMAGES

Answer 9

Where the defendant has been unjustly enriched, the court may award­
damages based on the benefit to the defendant.
a. The amount is calculated based on the value of the benefit.
b. However, where both compensatory and restituionary damages are available, plaintiff cannot get both. Instead, she must make an election of the two. Generally, the plaintiff should be awarded the larger sum of the two.

Question 10

Replevin

Answer 10

In an action for replevin, the plaintiff may recover possession of specific personal property. a. Must show: (1) that P has a right to possession, and (2) there is wrongful withholding by D. b. Timing: As long as D is still in possession, P can recover the chattel before trial.
i. But, to do so, plaintiff will have to post a bond.
ii. And, defendant may defeat an immediate recovery by posting a re-delivery bond.
Through which, the defendant can keep the chattel until after the trial.
c. Generally coupled with damages for lost use of the benefit during the wrongful withholding. d. No recovery is sale to a Bona Fide Purchaser

Question 11

Ejectment

Answer 11

In an action for ejectment, the plaintiff may recover possession of specific real property.

a. Must show: (1) P has a right to possession, and (2) there is a wrongful withhold by D. b. Only available against defendant who has possession of the property.
c. Usually coupled with damages for lost use of the benefit during the wrongful withholding.

Question 12

Constructive Trust

Answer 12

Equitable remedy imposed by the courts when the retention of property by D-
wrongdoer would result in unjust enrichment. D serves a “trustee” and must return the property toP. a. Legal remedies muse be inadequate (e.g the defendant is insolvent or the property is unique).
b. Tracing: P can follow the property to whatever form it takes, as long as the trust re can be id-ed c. Bona fide purchasers prevail over plaintiff
d. Plaintiff prevails over unsecured creditors.

Question 13

Equitable Lien

Answer 13

Where the defendant has improperly acquired title to a property, an equitable lien allows the court to order an immediate sale of the property, and the monies received will go to the plaintiff.

a. Must show (1) D misappropriated P’s property creating a debt or obligation to pay, (2) P’s property can be traced to property held by D, (4) retention would –. unjust enrichment.
b. If the proceeds from the sale are less than the FMV of the property when it was taken, a deficiency judgment will issue for the difference and can be used against D’s other assets.
c. Where misappropriated money is used to improve property, only an equitable lien is available. (e.g house remodel)
d. Same rules as constructive trusts: tracing allowed; BFP’s prevail.

Question 14

INJUNCTIVE RELIEF

Answer 14

• Temporary Injunctive Relief

- Permanent Injunctive Relief

Question 15

Temporary Injunctive Relief

Answer 15

a. Irreparable Injury

b. Likelihood of Success

Question 16

Temporary Injunctive Relief - Irreparable Injury

Answer 16

Irreparable Injury: P must show that without the injunction, she will incur irreparable injury while waiting for a full trial on the merits.
i. Balancing Test: harm to P if injunction is denied v. harm to the D if injunction is granted ii. Where D created the hardship- even if substantial- balance likely to weigh in P’s favor

Question 17

Temporary Injunctive Relief - Likelihood of Success

Answer 17

P must show that he/she has a strong likelihood of success on the merits. The court will look to the probability of this success.

i. This is not an inquiry on success of obtaining a permanent injunction.
ii. The court should also impose a bond requirement on the plaintiff to reimburse the defendant if the injunction injured him/her and the plaintiff does not succeed.

Question 18

Permanent Injunctive Relief

Answer 18

a. Inadequate Legal Remedy
b. Property Interest/Protectable Interest
c. Feasibility of Enforcement
d. Balancing of Hardships
e. Defenses

Question 19

Permanent Injunctive Relief - Inadequate Legal Remedy

Answer 19

Money damages may be too speculative; D may be insolvent; the sheriff may be unable or unwilling to enforce a replevin or ejectment action.

Question 20

Permanent Injunctive Relief - Property Interest/Protectable Interest

Answer 20

i. Traditional View: equity will grant relief only were there is a protectable property right involved.
ii. Modern View: Any protectable interest will suffice.

Question 21

Permanent Injunctive Relief - Feasibility of Enforcement

Answer 21

Only an issue with mandatory injunction. Enforcement problems may stem from (1) the difficulty of supervision or (2) concern with effectively ensuring compliance.

Question 22

Permanent Injunctive Relief - Balancing of Hardships

Answer 22

Plaintiffs benefit v. Defendant’s hardship + the public’s hardship [But, if the defendant’s conduct was willful, no balancing]

Question 23

Permanent Injunctive Relief - Defenses

Answer 23

1. Laches
2. Unclean Hands
3. Impossibility
4. Free Speech

Question 24

Permanent Injunctive Relief DEFENSES - Laches

Answer 24

Where there has been an unreasonable lapse of time between when the P learned of the injury and when the P filed the lawsuit, and that lapse of time is prejudicial to the D, laches will cut off the right to injunctive relief (but not$ damages).

Question 25

Permanent Injunctive Relief DEFENSES - Unclean Hands

Answer 25

The persons seeking equitable relief must not be guilty of any improper conduct that is related to the lawsuit.

Question 26

Permanent Injunctive Relief DEFENSES - Impossibility

Answer 26

It would be impossible for the D to carry out the terms of the injunction.

Question 27

Permanent Injunctive Relief DEFENSES - Free Speech

Answer 27

Injunction may be denied on free speech grounds.

Question 28

CONTRACT REMEDIES

Answer 28

CONTRACT REMEDIES

Question 29

CONTRACT DAMAGES

Answer 29

• Compensatory Damages
• Nominal Damages
• Liquidated Damages

Question 30

COMPENSATORY DAMAGES

Answer 30

Based on injury to the Plaintiff.

Must show:

1. Causation
2. Foreseeability
3. Certainty
4. Unavoidability
   - Consequential damages: available for related damages foreseeable at the time of formation c.
   - Seller breaches a land sale K: CD = out-of-pocket loss OR benefit-of-the-bargain

Question 31

NOMINAL DAMAGES

Answer 31

Nominal damages are also allowed. But, punitive damages are NOT allowed (if D’ s conduct is willful, characterize as a tort, so you can get PDs)

Question 32

LIQUIDATED DAMAGES

Answer 32

Liquidated damage clauses are permissible, if they are valid
- Damages are very difficult to ascertain at the time of K formation
- This was a reasonable forecast of what they would be.
Result: if valid –+ only liquidated damage amount; if invalid –+ actual damages available.

Question 33

RESTITUTIONARY REMEDIES - K unenforceable AFTER services performed

Answer 33

If K is unenforceable AFTER the P has performed (e.g. mistake, capacity, SoF, illegality)
a. P can get restitutionary damages for property/money give to, or services rendered for D for the
VALUE of the BENEFIT.
i. Not necessary to find that the D actually benefited, only that D received a benefit ii. If the value of the services is greater than the K rate, P can still recover it.
b. P can get the property back if it is unique or D is insolvent.
c. Quasi-K: P awarded the reasonable value of D’s ill gotten gain or the difference between the present value of the good less the value before the benefit conferred by P.

Question 34

Restitutionary Remedies - if K is breached

Answer 34

a. Where P is the non-breaching party:
i. P may recover restitutionary damages for property/money given to, or services rendered forD for the VALUE of the BENEFIT.
ii. P can get the property back if it is unique or D is insolvent. b. Where P is the breaching party:
i. Traditional View: P may recover NOTHING
ii. Modern View: P may recover restitutionary interest, but it CANNOT be greater than the
K rate and is reduced by any damages suffered by D as a result of the breach.

Question 35

SPECIFIC PERFORMANCE

Answer 35

5 part check-list- [I’m Doing Fine Mom and Dad]

P must show:

a. Inadequacy of legal remedies
b. Definite and Certain Terms
c. Feasibility of enforcement
d. Mutuality of remedy
e. Lack of Defenses

Question 36

Specific Performance - Inadequacy of Legal Remedies

Answer 36

Damages may be inadequate b/c (1) they’re speculative, (2) defendant is insolvent; (3) multiple suits are necessary; (3) the thing bargained for is unique (tested at the time of litigation, not K formation). Liquidated damage clause “f.$ is inadequate

Question 37

Specific Performance - Definite & Certain Terms

Answer 37

Terms of the K must be sufficient certain to constitute a valid K

Question 38

Specific Performance - Feasibility of Enforcement

Answer 38

Feasibility of enforcement. Jx. over the parties? Too much court supervision needed?

Question 39

Specific Performance - Mutuality of Remedy

Answer 39

Must show the other side can also secure performance. Only an issue where P lacks capacity: CT will reject mutuality if it feels secure that P can and will perform.

Question 40

Specific Performance - Lack of Defenses

Answer 40

• Unclean hands;
• laches;
• unconscionability;
• mistake;
• misrepresentation;
• equitable conversion (sale to BFP);
• SoF (satisfied if (i) part performance (ii) in reliance on K)