Remedies Flashcards
Remedies - Gral
- Needs to be specified by P on complaint
- Most of them can be pleaded alternatively (not exclusive) - Types MRS DAISI
Remedies -MRS DAISI
- Money dx
- 4R’s
- Specific Performance
- Declaratory Judgment
- Injunction
- SOL
- In quasi contract
Remedies - MRS DAISI -Money DX - Possible Categories (7)
1) Liquidated,
2) Compensatory or expectation,
3) reliance interests,
4) punitive,
5) emo distress,
6) nominal,
7) Interest award
Remedies - MRS DAISI - Money Dx - Recovery Limitations
- Established in contract +
- w/ foreseeable objective standard +
- Reasonable to the amount of actual loss and that dx that would have been avoided but for breach (i.e. loss of profits for new business)
Remedies - MRS DAISI - Money Dx - DX Limitations
- By contract - UCC prohibits limitation that fails essential purpose of contract
- UCC allows seller to retain deposit and offset dx and exceptionally use 20% or $500 as liquidated dx
- UCC limitation allows unless deemed unconscionable (i.e. limit to personal injury on consumer goods contracts)
Remedies - MRS DAISI - Money DX - Liquidated Dx
- Defined by contract for future breach
- Enforceable when amount is reasonable forecast to actual dx
- Not only source of recovery - other dx also possible to recover
Remedies - MRS DAISI - Money DX - Liquidated Dx - Effect of deemed penalty
- If too large can be deemed as penalty
- court disregards and allow for recovery of actual dx
Remedies -MRS DAISI - Money DX - Compensatory or Expectation Dx - Concept
- Compensatory: sufficient in amount to indemnify injured person for loss suffered
- Expectation: compensation for the loss of person reasonable expectation of transaction not completed -
Remedies -MRS DAISI - Money DX - Compensatory or Expectation Dx - Gral application
- gral: as default when liquidated deemed punitive
- Not allowed when too speculative (i.e. when there is no previous experience on a specific tpe of business)
Remedies - MRS DAISI - Money DX - Compensatory or Expectation Dx - specific application - Torts
Dx as Victim back to same position pre-tort
Remedies - MRS DAISI - Money DX - Compensatory or Expectation Dx - specific application - Contracts
Dx as Benefit of the bargain
Remedies - MRS DAISI - Money DX - Compensatory or Expectation Dx - specific application - Special Contractor Rules for Owner / Contractor Breach
- When owner breach: contractor entitled to full price of contract (expected profit) less costs of necessary components incurred to complete project
- Contractor’s breach: owner collect’s difference btwn price and cost of hiring another / Paid amounts deemed as credit / Possible quasi contract as ground for recovery
Remedies - MRS DAISI - Money DX - Compensatory or Expectation Dx - specific application - Special Contractor Rules for Substantial and defective performance
- Substantial performance: if defects minor and no bad faith possible proportional reduction of price by owner
- Defective performance: owner collects costs to correct UNLESS showing by contractor cost is disproportionate to actual loss value caused by defect
Remedies - MRS DAISI - Money DX - Reliance Interest
Failure to MOULS OR extreme promissory estoppel.
- DX to return party to pre-promise financial position
- Recovery of “out of pocket” expenses when compensatory dx fail to provide the benefit of the bargain
Remedies - MRS DAISI - Money DX - Punitive Dx
Most jdx dont award them UNLESS authorized by statute (i..e for consumer protection)
Remedies - MRS DAISI - Money DX - Emotional distress
Not allowed UNLESS foreseeable to D that serious physical or emotional injury from breach
Remedies - MRS DAISI - Money DX - Nominal Dx
When breach has occurred but D cant or dont have to prove actual dx
Remedies - MRS DAISI - Money DX - Interest Award
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Remedies - MRS DAISI - Money DX - UCC Remedies for Seller
1) Right to cure if buyer rejects tender of goods
2) Seller stop transit and demand COD for future when buyer’s breach
3) Incidental dx related to avoiding loss, i.e. storage, insurance
4) Goods in Production can be sold as scrap or completed
5) Lost Profit
6) For buyer’s insolvency
Remedies - MRS DAISI - Money DX - UCC Remedies for Seller - Basic Dx measure
- Measure of dx: difference btwn contract price and market price at time of tender OR price at time of resale
- If resale of good, it has to be commercially reasonable and buyer must be notified / BFP takes free and clear
Remedies - MRS DAISI - Money DX - UCC Remedies for Seller - Lost Profit Remedy
- Net amount seller would have realized buyer has not breached PLUS reasonable overhead
- For sellers who routinely sell the same good at the same price
Remedies - MRS DAISI - Money DX - UCC Remedies for Seller - Buyer’s Insolvency
- When seller discovers it he can stop/reuse delivery except for cash
- Also can reclaim goods bought on credit but looses right to recover any dx
Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Gral
- When seller fails to deliver/non-deliver/delivers late
- Buyer can reject or accept all/portion bc of perfect tender rule - Buyer must have reasonable inspection right before accepting/paying - if rejects price can be recovered
- Mx Remedies: CICS + Market price remedy + Repudiation remedy
Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Rejection and Implied Acceptance
- Rejection has to be effective if not implied acceptance
- Implied acceptance also if buyer re-sells goods
Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - CICS
- Cover by purchase of substitute goods
- Incidental Dx
- Consequential Dx
- Specific Performance when CIT (cover impossible from other source, ID in th econtract and not yet transfer to BFP)
Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - CICS - Cover by purchase of substitute goods (Cover Dx)
- Buyer purchaser equivalent goods on reasonable price to satisfy his requirement
- Dx amount = difference btwn contract price and cover market price at time buyer LEARNS from breach