Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Spring 16 > Remedies > Flashcards

Remedies Flashcards

1
Q

when will specific performance be granted

A
  • uniqueness
  • something would prevent money damages from giving full relief
  • reluctant to grant bc supervision
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

what are the equitable defenses?

A
  1. unclean hands
  2. laches
  3. unconscionability
  4. estoppel (promissory & equitable)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

unclean hands

A
  • either party can use
  • ct looks only to P’s conduct b/c they’re the person seeking aid of ct
  • conduct must have Immediate + necessary relation to equity sought
  • not limited to illegal conduct
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

defense - Unconscionability

A
  • Similar to legal remedy of “public policy” considerations

* Needs to be very oppressive / totally unfair to rise to this level

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Laches

A

Test: whether theres been a delay which has resulted in injury, embarrassment or disadvantage of any person, but particularly against whom relief is sought
- weigh justification for delay vs prejudice to D as result

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Contempt - Can words cause contempt?

A

vehemence of the language used is not, on its own, enough to punish for contempt. It must constitute an imminent, not merely likely, threat to the admin of justice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

How to determine if the contempt is civil or criminal

A

Look at the sanction (not the act) - nature and purpose of the contempt controls

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Difference in payment of fine for civil and crim contempt?

A
  1. Fine paid to the person who needs to be compensated = civil
  2. Fine paid to the court = criminal
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Promissory Estoppel

A
  1. party did/said something calculated/intended to induce another to believe certain facts exist + act on it
  2. other party changed position in reliance on those facts, thereby incurring an injury
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

A contempt fine is considered civil and remedial if

A
  • it either coerces ∆ into compliance w court order, or compensates complainant for losses sustained.
  • where not compensatory, its civil only if there’s an opportunity to purge
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

justification for coercive imprisonment

A

ability to comply w court order. once grand jury is discharged, witness can no longer be held bc no opportunity left to purge

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Constitutional procedural safeguards

A
  1. Privilege against self incrim
  2. possible right to a jury trial
  3. proof beyond a reasonable doubt
  4. right to present a defense,
  5. double jeopardy protection
  6. notice of charges
  7. assistance of counsel
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

standard of proof for criminal contempt

A

State must prove beyond a reasonable doubt that ∆ willfully disobeyed the order

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Direct/Summary Criminal Contempt

A
  1. inside courtroom
  2. willful disobedience
  3. act impacts adversely on authority of ct
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Indirect Criminal Contempt - elements

A
  1. Valid order
  2. Clear + unambiguous
  3. Willful disobedience
  4. If time element then they must’ve had a reasonable amount of time to comply
  5. If reason is disrespect to a judge then that judge cannot proceed over the hearing without ∆’s consent
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Contempt proceedings can be commenced in 2 ways:

A
  1. Courts own motion

2. At the behest of a party – party files an “order to show cause” why ∆ should be held in contempt

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

If the judge does not order a jury trial then the judge is limited to

A
  • labeling the contempt as petty, giving less than 6 months jail time + fine less than $500
  • Multiple (but not concurrent) sentences, when aggregated exceeding 6 mo, tried in 1 proceeding, have right to jury trial.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Collateral Bar Rule

A

An order issued by a court with jdx over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Collateral challenges

A

ignoring the order and challenging it in the contempt hearing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Defenses applicable in contempt proceedings:

A
  1. ∆ claim not bound by decree (lack of PJ/SMJ)
  2. Didn’t receive notice of orders req’s
  3. actions didn’t violate / impossible to comply
  4. transparent invaldity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

collateral challenges - prosecution has the burden to show what?

A

a willful violation: ∆ knew of the order and had the ability to comply

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Collateral bar - Majority (Walker)

A

Order must be obeyed even if constitutionally invalid.
• Gen rule - if ct reviewing order finds it had any pretense to validity at time issued, the reviewing ct should enforce collateral bar rule.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Collateral bar - Minority (CA)

A

No duty to obey “transparently invalid” or “void” orders (therefore crim contempt convictions of those cannot stand)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Nature and Purpose of Injunctive Relief

A

a. Mandatory (compel an act)
b. Prohibitory (forbid an act)
c. Mandatory not favored b/c then court has to monitor; Prohibitory doesn’t require supervision

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Preliminary Injunction - Elements

A

Similar req to TRO but lasts until end of trial or modification. Notice is mandatory. Hearing is req. Bon is typically req.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Preliminary injunctions appeal standard

A

abuse of discretion

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

TRO elements

A
  1. irreperable + imminent injury
  2. likelihood of success on the merits (most cts use “reasonable probability of success”)
  3. Balancing of the hardships
  4. not adverse to public interest (important for con issues. benefit 1 person or community?)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

When can a TRO be ex parte?

A

if you can convince court that there’s a need for immediate adjudication, and there’d be a great harm if you gave notice to other side

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

When can a prelim be ex parte?

A

never

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

who is bound by a TRO or prelim?

A

is only binding on those “who receive actual notice of the order by personal service or otherwise”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Injunctions - “Constructive” notice elements

A
  1. Must come from a credible source, and

2. Must inform the ∆ clearly and plainly from what act he must abstain

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Elements necessary for enforcement of an injunction against persons unnamed in the order:

A
  1. ∆ acted in concert or participation w named parties,
  2. Order was specific + unambiguous
  3. Violation of the order occurred w actual knowledge of the mandate
33
Q

what are TRO’s designed to do?

A

A TRO can be issued ex parte and is designed to maintain the status quo only until a hearing can be held on whether to grant a preliminary injunction. Not appealable bc short duration

34
Q

Bond req - general rule

A

bond is to be ordered for TRO and prelim injunction at fed + state level. One who obtains a prelim or TRO must usually post security to protect ∆ against loss

35
Q

Bond req - Majority

A

In absence of a bond, there can be no recovery for damages sustained from the wrongful issuance of a preliminary injunction, aside from a suit for malicious prosecution or unjust enrichment.

36
Q

Bond req - Minority

A

wrongful injunction = might be able to get an award in excess of the amount of the bond

37
Q

Permanent Injunction - Ebay 4 factor test (π must demonstrate):

A
  1. suffered an irreparable injury
  2. Remedies available at law, such as monetary damages, are inadequate to compensate for tht injury
  3. Considering balance of hardship between π + ∆, a remedy in equity is warranted; 4. public interest would not be disserved by a perm injunction (aka public doesnt have to be served by it, but they cannot be disserved)
38
Q

FRCP 65(d) – Every order granting an injunction must:

A
  1. State the reasons for its issuance
  2. State its terms specifically
  3. Describe in reasonable detail – and not by referring to the complaint or other doc – the act(s) restrained or required
39
Q

Restitution - Rule

A

the recipient of a benefit voluntarily bestowed without solicitation or inducement is not liable for their value. But he cannot retain a benefit, which knowingly he has permitted another to confer on him by mistake.

40
Q

Quantum meruit

A

services are rendered but because of some reason there’s no actual contract, therefore there’s unjust enrichment. This is a legal action.

41
Q

why argue unjust enrichment instead of quantum meruit?

A

By arguing unjust enrichment, rather than quantum meruit, someone suing can get not just the value of their service but also the increased value it caused.

42
Q

In general, the restitutionary remedies are based on…

A
  • amount ∆ has received + should surrender (not P’s losses)
  • not always clear bc value can be based on benefit received from prop or ∆’s wrongdoing
  • specific to claim
  • determining if enrichment was unjust is q of fact
43
Q

When is it better to choose a remedy of an equitable lien over a constructive trust and why?

A

When there’s been an increase in value + your money was used to acquire it – constructive trust. Equitable lien is dollar for dollar so you wouldn’t get the increase.

44
Q

when can you get a constructive trust?

A
  • your $ or property was used to ACQUIRE the property

* get appreciation/depreciation

45
Q

when can claimant get an equitable lien - ∆ is unjustly enriched by a transaction in which…

A
  1. claimants assets or services are used to enhance or preserve the value of a prop to which ∆ has legal title, or
  2. connection btwn unjust enrichment and ∆’s ownership of particular prop makes it equitable that claimant have recourse to that prop for satisfaction of ∆’s liability in restitution
46
Q

what does an equitable lien do?

A
  • secures the obligation of the ∆ to pay the claimant the amount of the ∆’s unjust enrichment as separately determined.
  • $ for $ value only
47
Q

Tracing

A

Where the wrongdoer mingles wrongfully and rightfully acquired funds, owner of the wrongfully acquired funds is entitled to share proportionately in acquired property to the extent of his involuntary contribution.

48
Q

Lowest intermediate balance rule (If claimants prop has been comingled)

A

After one or more withdrawals from a commingled fund, the portion of the remainder that may be identified as the traceable product of the claimant’s property may not exceed the fund’s lowest intermediate balance.

49
Q

Subrogation

A

Subrogation is the substitution of another person in the place of a creditor, so that the person in whose favor it is exercised succeeds to the right of the creditor in relation to the debt.

50
Q

Concept behind damages

A

amount of money necessary to place the successful π, as closely as possible, in the position it would have occupied if the wrong had not been committed

51
Q

Compensatory damages

A

limited to reimbursement for net losses

52
Q

Compensatory damages - for real property

A

difference between K price and fair market value (consider resale price)

53
Q

Fraud damages

A

difference between what was represented and what was provided (ex: lost opportunity, liberty nat’l insurance case)

54
Q

General damages

A

difference between K price and price they paid for on market

55
Q

Land subject to contamination - Repair vs. Lost Value

A

When P’s prop is damaged but not destroyed, either of these might put P in position she wouldve occupied but for wrong:

  1. cost of restoring prop to its original condition + value (cost of repair); or
  2. difference in value btwn uninjured prop and the injured prop (diminution in value)
56
Q

emotional distress for K

A
  • Maj: No
  • Min: will allow if 1) breach caused bodily harm and 2) K or breach is of such kind that serious emo distress was particularly likely (k 4 med)
57
Q

Appellate court may only interfere with the amount of a damages award where ….

A

it shocks the conscience + indicates passion, prejudice, or corruption on the part of the jurors.
• or grossly out of line w comparable awards

58
Q

how to justify damage award

A

Is there a rational connection between the evidence and the verdict?

59
Q

Limits on recovery doctrines

A

limit P’s recovery for losses that are somewhat remote from the wrongdoing. They reflect a central concern that the wrong may not really be responsible for the loss, that P might have suffered the loss (or part of it) even if ∆ had acted legally.

60
Q

Mixed motive case

A

if the lawful reason alone would have sufficed to justify the firing, the employee could not prevail in a suit against the employer.

61
Q

(Lost Asset Damages) consequential damages, P must prove that:

A
  1. Liability for the loss of the asset was within the contemplation of the parties at the time K was made, and
  2. asset’s value should be proven w reasonable certainty
62
Q

Unclean hands defense is rejected where…

A

“a private suit serves important public purposes.”

63
Q

Benefits Rule

A
  1. P cannot recover for losses that she did avoid

2. Benefit of the value conferred is considered in the mitigation of damages

64
Q

Collateral Source (Exception to Benefits Rule)

A

Generally policy goes against allowing “double recovery” for P’s but this is an exception bc if a P is compensated for injures by a source unaffiliated with ∆, ∆ should still pay for their wrongdoing.
• cannot buy subrogation from ur own side

65
Q

Reliance Interest (alternative measure of damages for K)

A

Limiting recovery to refund of any amounts paid, plus any expenses incurred in pursuance of the transaction, plus interest on these amounts

66
Q

Wrongdoer rule

A
  • damage is certain, only uncertainty is amount, burden shifts to wrongdoer.
  • bc of D’s actions P is unable to est damages so D must show why claimed damages are unreasonable
67
Q

Avoidable Consequences Doctrine - General Rule

A

measure of recovery by a wrongfully discharged employee = amount of salary agreed upon for the period of service, less amount which employer affirmatively proves employee has earned, or w reasonable effort mightve earned from other employment.
• P must act reasonably in seeking employment in order to recover

68
Q

Avoidable Consequences Doctrine - employer must show

A
  • employment was comparable, or substantially similar, to employment deprived
  • key words: different / inferior
  • D has burden to prove mitigation. failure to mitigate is affirmative defense
69
Q

Liquidated Damages

A
  • clause providing a reasonable estimate of the loss
  • Cannot be a penalty (violates public policy) – q of fact; often coercive but thats ok
  • may promote settlment
70
Q

Liquidated Damages - Test

A

At the time of entering into the K, what was everyone aware of?

71
Q

Limitations of Damages -

party who is asserting unconscionability has the burden to show…

A
  1. what were circumstances at time K signed? parties competent to assume risk?
  2. Disparity in bargaining power?
  3. Was the consequential damages clause on a pre-printed form?
72
Q

Punitive Damages - what are they

A

meant to punish or make an example. They are not designed to offset P’s loss.

73
Q

Punitive Damages - SCOTUS guideposts

A
  1. degree of reprehensibility of D’s conduct *
  2. disparity btwn actual or potential harm suffered by P and punitive damage award
  3. what amount have comparable cases come up w? amount typically used to deter tht type of conduct?
74
Q

Punitive Damages - State Courts

A

SCOTUS factors PLUS:

consider wealth of D

75
Q

Wrongful Death Acts

A

authorizing suits by a decedent’s surviving relatives for injuries suffered by them as a result of the decedent’s death.

76
Q

Survival Acts

A

Statutory; provide a cause of action to the decedent’s estate for pre-death injuries suffered by decedent.

77
Q

wrongful death - Pecuniary Damages

A

In general: A child’s life should be calculated according to his function as part of the ongoing family unit. Nothing more than a deprivation of a reasonable expectation of a pecuniary advantage which wouldve resulted by a continuance of the life of the deceased
• loss of “services” or fin contribution

78
Q

Loss of Companionship

A

to be compensable must be that which would have provided services substantially equivalent to those provided by the “companions” often hired today for aged, or substantially equivalent to services provided by nurses or practical nurses → confined to what marketplace would pay a stranger w/similar qualifications

Spring 16 (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions