Remedies

Question 1

Compensatory Damages

T and K

Answer 1

Compensatory damages are intended to compensate a plaintiff for a legally recognized harm or injury. The award seeks to place the plaintiff in the same position he would have been had he not been harmed by the defendant’s tortious behavior or breach of contract.

Question 2

General (noneconomic) and Special (economic) Damages

T

Answer 2

In tort, a plaintiff may recover general noneconomic damages if they experience actual harm, which includes damages for pain and suffering, enjoyment of life, and personal disfigurement. Special or economic damages include lost wages, medical expenses, and property loss.

Question 3

Expectation Damages

K Only

Answer 3

The goal of damages in a contract action is to honor the plaintiff’s expectation interest by placing him in the same position that he would have been in had the defendant performed his contractual obligations.

A buyer is entitled to the difference between the market price and the contract price plus any incidental and consequential damages, and less expenses saved as a consequence of the seller’s breach.

Question 4

Incidental Damages

K Only

Answer 4

Incidental damages are generally reliance-type reasonable expenses incurred in a transaction that are recoverable without the special proof required for consequential damages. (Cost to inspect, cost to ship)

Question 5

Consequential Damages

K Only

Answer 5

In a breach of contract action, damages that arise naturally from the breach are recoverable. Other consequential damages may be recovered only if they were within the contemplation of the contracting parties at the time that the contract was made. If such damages are not foreseeable, then they cannot be recovered. (Typically profits from new business ventures are not included as they cannot be calculated with reasonable certainty)

Question 6

Reliance

K Only

Answer 6

Generally, reliance damages can be recovered only when the plaintiff cannot prove expectancy with reasonable certainty, or when the contract would have produced a loss. The plaintiff can recover expenditures made in preparation for performing the contract, as well as expenditures made in performing the contract, but reliance damages cannot exceed the contract price.

Question 7

Nominal Damages

T and K

Answer 7

When a plaintiff has established the elements of a cause of action, but has not suffered harm or loss (or when the harm or loss is slight), the plaintiff may be awarded a trivial sum of money.

Question 8

Punitive Damages

T and K

Answer 8

Punitive damages serve to punish a defendant who engages in serious misconduct with an improper state of mine. these damages are also intended to deter others from similar conduct by making an example of the defendant.

Question 9

Liquidated Damages

K Only

Answer 9

Generally, liquidated damages are enforced if the amount is reasonable in light of either the anticipated loss at the time the contract was entered into, or the actual loss caused by the breach. An unreasonable amount is characterized as a penalty and is unenforceable.

Question 10

Limitations on Damages: Causation

T and K

Answer 10

For damages to be awarded, the defendant mush have caused the plaintiff’s injury. But-for the defendant’s behavior, the plaintiff would not have suffered injury.

Question 11

Limitations on Damages: Certainty

T and K

Answer 11

To recover damages, the plaintiff must establish such damages with reasonable certainty.

Lost profits or earnings are particularly susceptible to challenge for uncertainty, especially when those profits or earnings are claimed for a new business.

Question 12

Temporary Restraining Order

T

Answer 12

A TRO is an injunction for a short time, usually not more than 10 days, and can be obtained without notice to the defendant.

The primary purpose is to preserve the status quo until a preliminary injunction hearing can be held.

Question 13

Preliminary Injunction

T

Answer 13

A preliminary injunction is an injunction issued before or during a trial that generally is effective until there is a final judgment by the court, and cannot be issued unless defendant has been given notice and opportunity to be heard.

Question 14

Pre-Judgment Injunction Elements

Answer 14

To obtain a prejudgment injunction, the plaintiff must show:

1) the plaintiff will suffer irreparable harm if the injunction is not issued (inadequate remedy at law);
2) that the plaintiff’s hardships if the injunction is denied significantly outweighs the hardship on the defendant or third parties if granted (balance the equities);
3) there is a likelihood that the plaintiff will succeed on the merits; and
4) it is feasible for the court to enforce the injunction.

Question 15

Permanent Injunction

T

Answer 15

To obtain a permanent injunction, the plaintiff must usually establish:

1) that the plaintiff will suffer irreparable harm if the injunction is not issued (inadequate remedy at law);
2) that the plaintiff’s hardships if the injunction is denied significantly outweighs the hardship on the defendant or third parties if granted (balance the equities); and
3) it is feasible for the court to enforce the injunction.

Question 16

Injunctions: Irreparable harm

Answer 16

To show irreparable harm, the plaintiff must establish a lack of an adequate remedy at law.

Question 17

Injunctions: Balancing of Hardships

Answer 17

In balancing the equities, generally the defendant and third parties should not suffer undue hardship as a consequence of the injunction.

Question 18

Injunctions: Enforceability

Answer 18

A request for an injunction may be denied if it is not reasonable for the court to enforce the injunction. In particular, courts have traditionally been reluctant to issue injunctions that require extensive involvement and continued supervision by the court. However, if the underlying rights are sufficiently important, such as constitutional rights, then the court may issue such injunctions.

Question 19

Defenses to Injunctions

Answer 19

Laches

Unclean Hands

Question 20

Specific Performance

K

Answer 20

For a court to grant plaintiff’s request for specific performance, there must be: (1) a contract; (2) the contract terms must be sufficiently certain to provide a basis for the court order; (3) the conditions required for the defendant’s performance must be satisfied; (4) damages must be inadequate to protect the plaintiff’s expectation interest; (5) relief must be equitable; and (6) enforcement must be feasible.

Question 21

Rescission

K

Answer 21

To rescind a contract, plaintiff must give notice to the defendant and return any benefits of the contract prior to filing suit and upon discovery of grounds for rescission. Once the contract is rescinded, plaintiff can pursue restitution or replevin.

Question 22

Reformation

K

Answer 22

Reformation is an equitable restitution remedy whereby the court rewrites the agreement or other document generally to reflect the parties’ true intent.

Question 23

Restitution

T and K

Answer 23

A plaintiff can recover when the defendant has been unjustly enriched at the plaintiff’s expense if plaintiff has conferred a benefit on the defendant that yielded a measurable increase in the defendant’s wealth. The measurement of plaintiff’s recovery is either the value of the benefit conferred, or the extent to which defendant’s wealth increased because of that benefit.

Question 24

Replevin

Answer 24

When the plaintiff’s personal property is taken by the defendant, the plaintiff may pursue a replevin action, through which the plaintiff can both regain possession of the property and recover damages for the loss of use of the property.

Question 25

Coversion

Answer 25

If a defendant intentionally deprives the plaintiff possession of or substantially interferes with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff full use of the chattel, then the plaintiff’s damages are the chattel’s full value at the time of the conversion.

Question 26

Ejectment

Answer 26

To regain possession of land held by another, the plaintiff may bring an ejectment action. The plaintiff generally must establish title to the land and the right to immediate possession of it.

Question 27

Remedial Trust

Answer 27

A remedial trust is an equitable remedy created by operation of law and therefore is not subject to the trust creation requirements, nor can it be challenged on Statute of Wills or Statute of Frauds grounds. Remedial trusts are passive in that the sole duty of the trustee is to convey the trust property to the beneficiary. After this has been accomplished, the trust terminates.

Question 28

Purchase Money Resulting Trust

Answer 28

The primary aim of a resulting trust is the prevention of unjust enrichment. A purchase-money resulting trust is created when title is taken in the name of one person, but another party supplied the consideration. this creates a rebuttable presumption of unjust enrichment of the holder, unless there is a close familial relationship between the holder of the property and the purchaser; or the purchaser manifests an intention to make a gift or a loan to the holder.

Question 29

Constructive Trust

Answer 29

To obtain a constructive trust, the plaintiff must show: 1) that the defendant holds title to and; 2) possession of the property; 3) retention of such property would unjustly enrich the defendant; and 4) a legal remedy is inadequate.

Question 30

Equitable Lien

Answer 30

An equitable lien is a judicially created remedy that: 1) recognizes the plaintiff’s claim agains the defendant; 2) by imposing a lien on the defendant’s property; 3) as security for that claim. Defendant must be unjustly enriched, and the enrichment must relate to defendant’s property.

Question 31

Laches

Answer 31

The doctrine of laches is a failure to assert one’s right in a timely manner, resulting in a claim being barred. The reasoning behind this doctrine is that the delay in asserting the claim may have caused a great increase in the potential damages to be awarded, or assets that could earlier have been used to satisfy the claim may have been distributed in the meantime. In other words, the defendant suffers a greater harm than if the claim had been timely asserted.

Question 32

Unclean Hands

Answer 32

Under the doctrine of unclean hands, the plaintiff is not entitled to obtain an equitable remedy because he is acting unethically or has acted in bad faith with respect to the subject of the complaint.