Remedies

Question 1

Remedies - Torts - LEGAL

Answer 1

1. Compensatory: To prove compensatory damages, there must be causation, foreseeability, certainty and unavoidability
2. Nominal: Available where plaintiff suffers no actual injury. Available in suits for battery, assault, false imprisonment and trespass to land
3. Punitive: Awarded to punish defendant. Plaintiff must first be awarded compensatory, nominal or restitutionary damages. Defendant’s fault must be greater than negligence. Must be relatively proportionate to actual damages (single digit multiplier)

Question 2

Remedies - Torts - Restitutionary

Answer 2

1. Damages (Legal): Calculated on the basis of value of benefit to defendant
2. Replevin (Legal): Allows plaintiff to recover possession of specific personal property before trial, available where plaintiff has a right to possession and there has been a wrongful withholding by defendant. Plaintiff must post bond.
   
   • Redelivery Bond: Defendant may defeat immediate recovery by posting bond
   • Damages: Typically coupled with damages for loss of use or benefit to defendant during detention
3. Ejectment (Legal): Allows plaintiff to recover possession of specific real property where plaintiff has a right to possession and there has been a wrongful withholding by defendant. Available only against defendant who has possession, such as adverse possessor or holdover tenant.
   
   • Damages: Typically coupled with damages for loss of use or benefit to defendant during detention
4. Constructive Trust (Equitable): Imposed on improperly acquired property to which defendant has title. Defendant serves as trustee and must return property. If thief sells property for money, injured party may (by tracing and identification) impose a constructive trust over money or property purchased with the money. Legal remedy must be inadequate (e.g., defendant insolvent, or property unique).
5. Equitable Lien (Equitable): Imposed on improperly acquired property to which defendant has title. Property subject to court-directed sale, proceeds of which belong to plaintiff. If proceeds of sale are less than fair market value of property when taken, a deficiency judgment will issue for difference. If thief sells converted property, plaintiff may also trace here. Legal remedy must be inadequate (e.g., defendant insolvent, or property unique).

Question 3

Remedies - Torts - Equitable

Answer 3

1. TRO: Issued pending a hearing to determine whether preliminary injunction should issue. Must be:
   
   • Threat of irreparable injury
   • Balance hardships favoring plaintiff
   • Plaintiff’s likelihood of success at trial
   • Immediate injury
2. Preliminary Injunction: Maintains status quo during trial, and will issue after adversarial hearing where there is a showing of:
   
   • Threat of irreparable injury
   • Balance hardships favoring plaintiff
   • Plaintiff’s likelihood of success at trial
3. Permanent Injunction: Will issue after trial on merits where:
   
   • No adequate legal remedy
   • Enforcement is feasible
   • Balance hardships favoring plaintiff
   • No defenses

Note on Feasibility: Injunction will not issue for matters involving taste, skill or judgment, where it involves a series of acts over a period of time, or where an out-of-state must be completed by a non-resident

Balancing Hardships: No balancing if defendant acted willfully

Question 4

Remedies - Torts - Equitable Defenses

Answer 4

1. Unclean Hands: Available where plaintiff’s alleged improper, unethical or bad faith conduct is related to the lawsuit
2. Laches: An unreasonable delay by plaintiff in initiating claim that results in prejudice to defendant. May be shorter, but not longer, than SOL.
3. Impossibility: It would be impossible for defendant to carry out terms of injunction
4. Free Speech: If tort is defamation or privacy, court will likely deny injunction on free speech grounds

Question 5

Remedies - Contracts - Legal

Answer 5

1. Compensatory: Based on injury to plaintiff, and may be expectation, consequential, or incidental. Must prove causation, foreseeability, certainty and unavoidability.
2. Nominal: Permitted
3. Punitive: Not allows in contract. Where defendant acts willfully, plaintiff may seek to characterize action as fraud in tort.
4. Liquidated: Permissible when:
   
   • Damages are very difficult to ascertain at time of contract formation, and
   • Damages provision was a reasonable forecast

Question 6

Remedies - Contracts - Restitutionary

Answer 6

1. Damages (Legal)
2. Replevin (Legal)
3. Ejectment (Legal)
4. Constructive Trusts (Equitable)
5. Equitable Lien (Equitable)

Question 7

Remedies - Contracts - Equitable

Answer 7

1. Specific Performance: Court will order a defendant to perform he contract. Plaintiff must show:
   
   • The contract is valid, and terms are certain and definite
   • Plaintiff’s contract conditions have been satisfied
   • No adequate legal remedy
   • Enforcement is feasible
2. Rescission: Where court grants rescission, the original contract is voidable and rescinded. Grounds include:
   
   • Defenses to formation
   • Mutual mistake
   • Unilateral mistake
   • Misrepresentation
3. Reformation: Process of changing a written agreement to conform to parties’ original understanding. There must be:
   
   • Valid contract
   • Sufficient grounds
   • No defenses

Notes on Specific Performance—Land

1. Quantity of Land—Seller: Seller can specifically enforce contract if defect is minor, but not if defect is major unless seller can cure defect by closing.
2. Quantity of Land—Buyer: Buyer can specifically enforce contract even if defect is major, but not if defect is very major.
3. Result: If court grants specific performance for lesser quantity of land, it will abate the purchase price.

Note on Inadequate Legal Remedy: May be inadequate because damages are speculative, defendant is insolvent, multiple suits are necessary, or thing bargained for is unique.

Note on Rescission—Mistake: With mutual mistake, must go to material fact. Rescission usually denied for unilateral mistake unless other party knew or should have known.

Question 8

Remedies - Contracts - Equitable Defenses

Answer 8

1. Specific Performance: Defenses include unclean hands, laches, unconscionability, mistake, misrepresentation and Statute of Frauds
2. Rescission: Defenses include unclean hands and laches
3. Reformation: Defenses include unclean hands and laches