Remedies Flashcards
Tort Remedies
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
Compensatory Damages
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
Nominal Damages
Allowed if no actual injury occurs, but is awarded to vindicate P’s rights
Punitive Damages
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.
Restitution Damages
Not available if P recovers Compensatory Damages.
Money damages awarded to P equal to the value of the BENEFIT RECEIVED by D.
Replevin
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.
Ejectment
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.
Constructive Trust
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.
Equitable Lien
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.
Temporary Restraining Order
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).
Temporary Injunctive Relief
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.
Permanent Injunctive Relief
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.
Defenses to Equitable Relief
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.
Contract Remedies
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)
Expectation Damages
Standard K remedy, measure using formula:
MARKET PRICE - CONTRACT PRICE = DAMAGES
Consequential Damages
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.
Liquidated Damages
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.
Specific Performance
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).
Rescission
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.
Reformation
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.
Equitable Conversion
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.
Quasi-Contract Remedies
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.
