Remedies Flashcards
TRO
A TRO is an emergency order imposed to maintain the status quo until a hearing may be held on a motion for preliminary injunction. It can be granted without notice to the nonmoving party if the moving party can make a strong showing as why notice and a hearing should not be required. In any case, the moving party must prove that he will suffer immediate, irreparable harm before a preliminary injunction can be obtained and a likelihood that he will succeed on the merits of his underlying claim. TRO’s last until a motion for preliminary injunction can be heard.
Preliminary injunction
A preliminary injunction is an order that maintains the status quo until a trial on the merits can be held. It is imposed after notice and a hearing. It requires proof of irreparable injury that would occur before the trial can be held and a likelihood of success on the merits.
Specific performance - contract
Specific performance is a mandatory decree or injunction that orders a contracting party to perform its promise under the contract. To obtain specific performance there must be a contract with definite and certain terms between the parties, the plaintiff must have already performed or be ready to perform under the contract, the legal remedy must be inadequate, it must be feasible for the court to decree, and the defendant must not have had any defenses.
Replevin - contract
Replevin is a legal restitutionary remedy to recover specific chattel wrongly taken by the defendant. Under UCC Article 2, a buyer who has made at least partial payment may replevy undelivered, identified goods if, after a reasonable effort, the buyer is unable to secure adequate substitute goods. Replevin is available at the commencement of the action and before trial if a pre-seizure judicial hearing is upheld. The plaintiff may recover possession of the property or its value at the time of trial, plus damages measured by the loss of use during the wrongful detention.
Expectation damages
The purpose of compensatory damages is to give compensation for the breach, that is, to put the nonbreaching party in the position he would have been in had the promise been performed. The damage measure is the benefit of the bargain under contract, or in other words expectation damages. In a land sale contract, a buyer can recover the difference between the contract price and the fair market value of the land.
Consequential damages
Consequential damages are a type of expectation damage for losses above and beyond the expectation damages resulting from the breach that a reasonable person would have foreseen at the time of entry into the contract. These damages are generally due to the plaintiff’s particular circumstances and are usually lost profits resulting from breach.
Incidental damages
Incidental damages are damages for a buyer that include expenses reasonably incurred in inspection, receipt, transportation, care, and custody of rightfully rejected goods, and other expenses reasonably incident to the breach. Expenses that would have been incurred without a breach are not incidental damages.
Anticipatory repudiation
Anticipatory repudiation occurs when a promisor, prior to the time set for performance, indicates that he will not perform at the set time. It applies only in cases where there is a bilateral contract with unperformed duties on both sides and the words or conduct of the repudiating party unequivocally indicate that he will not perform. If these requirements are met, the non repudiating party can treat the anticipatory repudiation as a total breach and sue immediately for money damages.
Recission
With rescission, a plaintiff can effectively wipe out a contract and restore the status quo prior to the contract so long as the defendant does not have any legitimate defenses. Both fraudulent and innocent misrepresentation are grounds for rescission if the misrepresentation occurred at or before the time the contract was entered into. If so, a person cannot be compelled to perform if assent was obtained by the other party’s misrepresentation. If there is fraudulent misrepresentation, the plaintiff has the option of either rescinding the contract and seeking restitution for any unfair benefit the defendant received, or affirming the contract and seeking damages. If the misrepresentation was an honest mistake and the plaintiff relies on it, the contract can only be rescinded.
Unclean hands
Unclean hands is a defense to specific performance where the plaintiff is guilty of some inequitable or wrongful conduct regarding the same transaction as to which these is presently suing the defendant.
Purchase money resulting trust
A court may impose a purchase money resulting trust after a sale of property in which one person takes legal title in the property and another person supplies consideration before or at the same time the other person takes title. The person who obtained legal title is deemed the trustee of a resulting trust, and the person who furnished consideration is deemed the beneficiary. The trustee’s sole duty is to convey title to the beneficiary. Where the beneficiary pays only part of the purchase price, the resulting trust in her favor will be for only a pro rata share of the title.
Constructive trust
A constructive trust is a remedy implied in law and imposed by equity courts when the retention of property by the defendant would result in unjust enrichment. Under a constructive trust, the property is held by the defendant in trust for the plaintiff, with his sole obligation being to convey the property to the plaintiff. A constructive trust will apply where the defendant holds full title to the property and is not limited to the specific property the defendant wrongfully acquired, as plaintiff may trace the proceeds of wrongfully obtained property.
Equitable lien
A court may impose an equitable lien when the defendant’s retention of property would result in his unjust enrichment. To impose an equitable lien, the plaintiff must show that the defendant misappropriated the plaintiff’s property, that the plaintiff’s property can be traced to property held by the defendant, and the defendant’s retention of the plaintiff’s property would result in unjust enrichment.
Permanent injunction
To obtain an injunction, the plaintiff must show that legal remedies are inadequate, the injunction is feasible to enforce, the balance of hardships in favor of the plaintiff, and that there are no defenses.
Continuing nusiance
Traditionally, the measure of damages for a continuing nuisance is the value of the loss of use and enjoyment of the property, plus costs incurred in trying to abate the nuisance and an award for any discomfort or annoyance to the occupant. Damages must be causal, foreseeable, certain, and unavoidable. Some jurisdictions have a permanent nuisance doctrine which allows the plaintiff to recover damages measured by permanent diminution in value to the property.
