Remedies

Question 1

Tort Remedies

Answer 1

LEGAL REMEDIES:

• Compensatory Damages
• Nominal Damages
• Punitive Damages
• Restitution Damages
• Replevin Damages
• Ejectment

EQUITABLE REMEDIES:

• Constructive Trust
• Equitable Lien
• Temp. Restraining Order
• Temporary Injunction
• Permanent Injunction

Question 2

Compensatory Damages

Answer 2

MONEY damages that put the P back in the position as if the WRONG NEVER OCCURRED.
Must show:
1) causation,
2) foreseeability,
3) certainty, and
4) unavoidability

Question 3

Nominal Damages

Answer 3

Allowed if no actual injury occurs, but is awarded to vindicate P’s rights

Question 4

Punitive Damages

Answer 4

MUST BE AWARDED Compensatory or Nominal to receive.

Given to punish the D for wrongful act GREATER THAN NEGLIGENCE. It is proportionate to the amount of compensatory/nominal damages.

Question 5

Restitution Damages

Answer 5

Not available if P recovers Compensatory Damages.

Money damages awarded to P equal to the value of the BENEFIT RECEIVED by D.

Question 6

Replevin

Answer 6

P recovers the POSSESSION of PERSONAL PROPERTY held by D. Must show:

1) P has a right to possession, and
2) D is WRONGFULLY WITHHOLDING the property.

-May be coupled with Compensatory and Nominal.

Question 7

Ejectment

Answer 7

P recovers the POSSESSION of REAL PROPERTY held by D. Must show:

1) P has a right to possession, and
2) D is WRONGFULLY WITHHOLDING the property.

-May be coupled with Compensatory and Nominal.

Question 8

Constructive Trust

Answer 8

EQUITABLE REMEDY - COMPELS D to reconvey TITLE to property that is unjustly retained. Must show:

1) D acquired title,
2) retention of property would unjustly enrich D,
3) legal remedies are INADEQUATE, and
4) no Defenses apply.

If there is a BonaFide Purchaser, BFP wins.

Question 9

Equitable Lien

Answer 9

EQUITABLE REMEDY - permits a lien on D’s property to secure payment of DEBT OWED TO P. Must show:

1) P’s property can be TRACED to D’s property,
2) retention of property would unjustly enrich D,
3) legal remedies are INADEQUATE, and
4) no Defenses apply.

Question 10

Temporary Restraining Order

Answer 10

P must have

1) an IRREPARABLE INJURY (must balance the hardships of both parties, and
2) LIKELIHOOD OF SUCCESS on the merits.

-TROs are limited to 10 days; usually enough time to hold a hearing for a temporary injunction (same standards).

Question 11

Temporary Injunctive Relief

Answer 11

P must have

1) an IRREPARABLE INJURY (must balance hardships of both parties), and
2) LIKELIHOOD OF SUCCESS on the merits.

-A bond should be posted in case of damage to D.

Question 12

Permanent Injunctive Relief

Answer 12

Requires (I BFP D):

1) INADEQUACY of an alternative LEGAL remedy;
2) a PROPERTY RIGHT or Protective Interest;
3) FEASIBILITY OF ENFORCEMENT (court must be able to actually control the item);
4) a BALANCE OF HARDSHIP between parties; and
5) no DEFENSES AVAILABLE.

Question 13

Defenses to Equitable Relief

Answer 13

LACHES - if P unreasonably delayed filing suit (causing D injustice).

UNCLEAN HANDS - P dealt UNFAIRLY with D in matters related to THIS LAWSUIT.

IMPOSSIBILITY - if D cannot perform injunction.

FREE SPEECH - restricts D’s right to free speech.

CRIMES - injunction (or following) is a criminal act.

Question 14

Contract Remedies

Answer 14

LEGAL REMEDIES:

• Expectation Damages
• Consequential Damages
• Liquidated Damages
• Compensatory, Nominal, Restitution, Replevin, Ejectment (all available as in Torts)

EQUITABLE REMEDIES:

• Specific Performance
• Rescission
• Reformation
• Constructive Trust, Equitable Lien, TRO, Temp and Permanent Injunction (all available as in Torts)

Question 15

Expectation Damages

Answer 15

Standard K remedy, measure using formula:

MARKET PRICE - CONTRACT PRICE = DAMAGES

Question 16

Consequential Damages

Answer 16

Damages arising out of the SPECIAL NEEDS of the P. Must show:

1) Damages naturally arose from the breach, and
2) D KNEW OF the P’s special needs.

Question 17

Liquidated Damages

Answer 17

Clause in the original K. In order to be enforced, must show:

1) Damages were DIFFICULT TO ASCERTAIN, and
2) clause is a REASONABLE FORECAST at the TIME OF K.

If valid, no other damages are available.

Question 18

Specific Performance

Answer 18

In order to REQUIRE D to perform on the K, must show:

1) CONTRACT IS VALID,
2) CONDITIONS HAVE BEEN FULFILLED BY P (if P’s performance is to pay, can be fulfilled by posting bond),
3) LEGAL REMEDIES are INADEQUATE,
4) ENFORCEMENT IS FEASIBLE for the court (if performance involves personal service, court will NOT force), and
5) THERE ARE NO DEFENSES AVAILABLE (laches, unclean hands, undue hardship (consideration is inadequate), or mistake or misrepresentation).

Question 19

Rescission

Answer 19

Original K is considered voidable and rescinded, and D owes P any unjust enrichment. Must show:

1) Grounds for Rescission:
- Mutual Mistake in formation (unilateral mistake if other party KNEW or SHOULD HAVE KNOWN),
- Misrepresentation that was material in fact.

2) No defenses available:
- Laches, Unclean hands,
- Suit to rescind must come FIRST or CONCURRENT to damages claim.

Question 20

Reformation

Answer 20

Changes a WRITTEN AGREEMENT to conform with the parties current understanding. Must show:

1) VALID CONTRACT,
2) GROUNDS FOR REFORMATION
- mutual mistake of fact
- misrepresentation (accidental and innocent)
3) NO DEFENSES
- laches, unclean hands

-If there is a BFP, no reformation allowed if adversely affects their rights.

Question 21

Equitable Conversion

Answer 21

FOR LAND SALE CONTRACTS - upon EXECUTION of any land sale K, the BUYER is deemed OWNER OF THE LAND.
-If Death, K goes thru; if Damages, risk of loss on Buyer.

Question 22

Quasi-Contract Remedies

Answer 22

If no contract was created, or a contract is unenforceable, the law still poses an OBLIGATION to pay for any UNJUST GAIN received pursuant to the negated K.