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prep > Remedies > Flashcards

Remedies Flashcards

1
Q

Remedies

Compensatory damages in torts

A

goal is retrospective

  1. pain and suffering (must experience; in CA includes hedonic loss (loss of enjoyment of the value of life)
  2. Emotional distress (requires physical injury or outrageous or intentional conduct; includes anxiety, emotion al distress caused by fear, humiliation, loss of freedom)
  3. past, present, and future medical expenses
  4. present and future loss of income
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2
Q

Remedies

damages in contracts

A

goal is prospective

  1. Expectation damages (MP-KP) + (C/I D) - ($ saved)
  2. Reliance damages
  3. Restitutionary damages
  4. Nominal damages
  5. Punitive damages
  6. Bargained for liquidated damages
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3
Q

Remedies

consequential damages def

A

any damages that naturally result from the seller’s breach

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4
Q

Remedies

incidental damages def

A

costs leading up to the breach in reliance on the contract

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5
Q

Remedies

UCC buyer’s remedies

A
  1. do nothing and sue for expectation damages
  2. cover and sue for expectation damages
    (CP-KP) + (C/I D) - ($ saved)
  3. accept non-conforming goods and sue for breach of warranty
    (value as warranted - value as accepted) + (C/I D) - ($ saved)
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6
Q

Remedies

what is included in reliance damages?

A

expenses made in preparation for performing the contract and expenses in performing the contract

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7
Q

Remedies

when are reliance damages preferred?

A

Compensatory damages are preferred. Reliance damages may be preferred when:

1) P cannot prove profit
2) P has a problem with substantive part of a k claim (k not valid, not enforceable)
3) compelling public policy reasons for limiting expectation damages
4) P cannot prove reasonable expectation damages with certainty

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8
Q

Remedies

what is included in restitutionary damages?

A

benefits conferred on D by P’s conduct

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9
Q

Remedies

when are restitutionary damages appropriate?

A

where there is a total breach of k by D that results in D being in a better position

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10
Q

Remedies

when are nominal damages appropriate in tort or k?

A

when P has established all other elements of a cause of action but cannot show great harm or loss.

Nominal damages are not available when the c/a requires P to establish more than nominal damages

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11
Q

Remedies

when are punitive damages available in tort?

A

1) when P has compensatory damages,
2) there is a need to punish and deter D from future violations, and
3) the punitive damages do not impose a grossly excessive punishment under the 14th amendment DP clause

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12
Q

Remedies

punitive damages factors

A

whether excessive:

1) reprehensibility
2) Proportionality: difference between harm suffered and damages awarded,
3) difference b/w this award and the civil penalties in similar cases

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13
Q

Remedies

punitive damages factors: reprehensibility

A

1) whether harm was physical rather than purely economic
2) whether tortious conduct demonstrated indifference to or reckless disregard of health and safety of others
3) vulnerable victims
4) repeated violations- deterrence of others
5) intent rather than mere negligence

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14
Q

Remedies

Punitive damages factors: proportionality

A

there must be a single digit ratio between the compensatory damages and the punitive damages

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15
Q

Remedies

Punitive damages factors: ability to pay

A

D’s ability to pay

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16
Q

Remedies

Punitive damages in k

A

Commonly awarded
1) if D’s conduct is both tortious and a b/k
2) where there is a dead body or body parts involved
need to hook to other damages, like nominal damage award

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17
Q

Remedies

liquidated damages def

A

damages agreed upon (bargained for) by the parties in the formation of the k

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18
Q

Remedies

when are liquidated damages enforced?

A

1) the damages are reasonable in the anticipated loss at the time of k or the actual loss the parties had as a result of the breach
2) specific enforcement clauses generally not enforceable, except arbitration clauses in CA

19
Q

Remedies

Damages in torts

A

1) compensatory damages
2) nominal damages
3) punitive damages
4) restitutionary damages

20
Q

Remedies

Limitations on damages generally

A

1) foreseeability in torts
2) foreseeability in consequential damages
3) certainty
4) mitigation
5) reduction for benefits
6) emotional
7) causation

21
Q

Remedies

limitations on damages in k

A

1) foreseeability in consequential damages
2) certainty
3) mitigation
4) reduction for benefits
5) emotional

22
Q

Remedies

limitations on damages in tort

A

1) foreseeability in negligence
2) certainty
3) mitigation
4) reduction for benefits
5) causation

23
Q

Remedies

limitations on damages: foreseeability in torts

A

If P’s harm comes from a risk that was not reasonably foreseeable, D is not liable of this harm (proximate cause)

24
Q

Remedies

limitations on damages: causation in torts

A

D must have cause P’s injury

25
Q

Remedies

limitations on damages: foreseeability in consequential damages

A

consequential damages may be recovered only if they were w/in the parties’ contemplation or reasonable should have been at the time of the k

26
Q

Remedies

limitations on damages: certainty

A
  1. P must establish damages with reasonable certainty
  2. in tort, P must prove damages by a preponderance of the ev
    3) in k, damages must e proven with a greater degree of certainty than in torts.
27
Q

Remedies

limitations on damages: mitigation

A

1) P can be denied recovery for any harm or loss she could have reasonably avoided
2) Burden is on D to show that P could have reasonably avoided the harm or loss
3) P is not required to do everything to reduce damages
4) If P makes reasonable efforts to avoid the harm or loss, she can still be awarded damages even if her efforts are unsuccessful.
5) P’s costs incurred in trying to avoid additional damages can also be recovered as damages

28
Q

Remedies

limitations on damages: reductions for benefits

A

P’s recovery is reduced by the benefits that result from D’s conduct, but not by the benefits obtained from collateral sources or other sources.

29
Q

Remedies

limitations on damages: emotional damages in k

A

emotional damages will not arise in a k action unless:

1) there isa parallel tort claim in which emotional damages are recoverable, or
2) the b/k is particularly likely to cause emotional distress (e.g. mishandling dead body)

30
Q

Remedies

interest damages

A

1) post-judgment interest will almost always be awarded
2) pre-judgment interest is sometimes available in k actions (liquidated damages clause) or a specific number of goods at a set price

31
Q

Remedies

litigation epenses

A

1) expenses for litigating, including court costs and atty fees, are generally recoverable if contracted for or provided by statute
2) expenses from previous lawsuits are recoverable as damages if D’s tortious conduct caused the litigation

32
Q

Remedies

Injunction def

A

injunction is a court order directing a person to do something or to refrain from doing something. It can serve as a final remedy for P (permanent injunction) or as a stop gap to preserve the status quo through litigation

33
Q

Remedies

Types of injunctions

A

1) TRO and 2) Preliminary injunction (prejudgment injunctions)
3) permanent injunction

34
Q

Remedies

TRO

A

1) issued for no more than 10 days
2) may obtain ex parte
3) purpose is to preserve status quo until a preliminary injunction can be decided
4) can’t be appealed
5) not effective until D has notice

35
Q

Remedies

Preliminary Injunction

A

1) issued before or during a trial that is generally effective until there is a final judgment by the court
2) can’t issue unless D has notice of hearing and opportunity to be heard

36
Q

Remedies

five factors in issuing prejudgment injunction

A

1) irreparable harm (damages not adequate; unique item)
2) feasibility of enforcement (easier to prohibit than require action; importance of underlying rights)
3) probability of winning on the merits
4) balancing of hardships (P’s hardship sig. greater than D’s)
5) defenses (1AM, laches, unclean hands)

  • Burden on P
  • Ct has discretion in issuing and extent of injunction
37
Q

Remedies

laches

A

P unreasonably delays in pursuing an equitable remedy and as a result D experiences prejudice

38
Q

Remedies

unclean hands

A

P acted in bad faith with respect to the subject of the complaint

39
Q

Remedies

permanent injunction

A

1) issued to prevent violation of P’s rights or to restore P’s rights that have been violated
2) awarded after P won on merits
3) factors:
i) irreparable harm
ii) feasibility of enforcement
iii) balancing of hardships
iv) defenses

40
Q

Remedies

K equitable remedies

A

1) specific performance
2) rescission of k
3) reformation of k

41
Q

Remedies

specific performance elements

A

1) k valid
2) Terms certain
3) conditions precedent
4) feasibility of enforcement
5) damages inadequate
6) relief equitable- defenses

42
Q

Remedies

specific performance elements (detailed)

A

1) valid k- offer, acceptance, consideration
2) k terms sufficiently certain for court to make an order
3) all conditions required to compel D’s performance must be satisfied or excused
4) feasibility- burdens on ct, advantages of enforcement, length of time, intrusiveness
5) damages inadequate- unique items, land, art, rare manuscripts. Liquidated damages may be enforced if provide damages instead of spec. perf.
6) relief is equitable
defenses (unclean hands, laches, estoppel)

43
Q

Remedies

rescission

A

def: rescission is the unmaking of the contract
1) P must give notice to D and return benefits of k prior to filing suit and on discovery of grounds for rescission
- P’s delay is permitted if D is not prejudiced by it
2) P may be excused from returning the benefit if:
- benefit has been disposed of prior to discovery of grounds for rescission
- benefit is presently worthless; or
- benefit was money and in proportion to the amount owed by D to P
2) once rescinded, P can pursue restitution or replevin

prep (11 decks)

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