Remedies Flashcards
Temporary Restraining Orders
Usually no more than 10 days - FRCP limit is 14 days, may be obtained without notice to the defendant if the movant can establish, under written oath, that immediate and irreparable injury will result prior to hearing adverse party’s opposition, movant also certifies in writing that any efforts made to give notice and the reason why notice should not be required.
Preliminary Injunctions/Permanent Injunctions
“I Put Five Bucks Down”
Irreparable Harm Probability of Success on the Merits Feasibility of enforcement Balancing of Hardships Defenses
**No “P” for Permanent Injunctions
Specific Performance
(Valid Contract Can’t Force Defendant Do)
Specific performance is a contractual remedy by which a party to a contract is compelled by a court order to render the promised performance or a substitute. Generally, it is not available unless there has been a breach of contract by nonperformance or repudiation. For a court to grant a plaintiff’s request for specific performance, the following requirements must be met: (i) there must be a contract; (ii) the contract terms must be sufficiently certain to provide a basis for the court order; (iii) the conditions required for the defendant’s performance must be satisfied; (iv) damages must be inadequate to protect the plaintiff’s expectation interest; (v) relief must be equitable; and (vi) enforcement must be feasible.
Specific Performance Satisfaction of Conditions
To compel specific performance by a defendant, any conditions precedent to that performance must have been satisfied or excused. In addition, if each party’s performance is a concurrent condition for the other party’s performance, then the plaintiff must have either performed the contractual obligations on which the defendant’s performance is conditioned or provided adequate security that he will do so.
Specific Performance Inadequacy of Damages
Damages are inadequate if the property to be transferred is unique, such as land, a work of art, or a rare manuscript. For the buyer, land is viewed as a unique asset so monetary damages are inadequate.
Specific Performance Unfairness
Specific Performance will not be granted when such relief would be unfair. Such unfairness generally does not arise from a single factor but from a combination of factors, such as sharp practices, mistake, hardship, inadequate consideration, and defenses of the defendant.
Partial Specific Performance
In general, the buyer is entitled to seek specific performance of a reap property contract. When the seller is unable to perform fully under the contract, such as when the amount of land called for in the contract is more than the seller owns, then either the seller or the buyer can seek specific performance of the contract with an abatement of the purchase price to reflect the flawed performance of the contract. While the seller is usually denied such relief when the flaw is material, the buyer is generally entitled to seek specific performance with abatement regardless of the flaw, unless the flaw is so substantial as to call into question whether the parties entered into an agreement at all. For the court to permit this remedy, the amount of the abatement must be ascertainable, such as by using pro rata reduction in the purchase price to reflect the reduction in the size of the property transferred.
Specific Performances Sharp Practices
One factor in the denial of specific performance is if the plaintiff’s behavior does not rise to the level of a contract defense but only contains elements of such a defense, such as unconscionability, misrepresentation,duress, or undue influence. Such actions often are referred to as sharp practices. A misrepresentation is an assertion that is contrary to the existing facts. Affirmative conduct to conceal a fact from another is equivalent to a statement that the fact does not exist.
Specific Performance Feasibility of Enforcement
A court will not specifically enforce a promise if such enforcement would impose burdens on the court that are disproportionate to the advantages to be gained from its enforcement and the harm to be suffered from its denial. Performance that would entail long continuous supervision or that would involve judgment as to the suitability of the performance will generally not be ordered.
Rescission
Rescission is the avoidance or unmaking of a contract. Rescission is an equitable and legal remedy available when there is mistake or fraud (voidable).
[Legal Remedy] The plaintiff must, prior to filing the suit and promptly upon discovery of grounds for rescission, give notice of rescission to the defendant and return or tender the benefits. A plaintiff may still rescind if the defendant has not been prejudiced by the delay.Plaintiff may be excused from returning the benefit if it was disposed of prior to discovery of grounds for rescission, is presently worthless, or was money and in proportion to the amount owed by the defendant to the plaintiff.
[Equitable Remedy] Plaintiff is required to return any benefits received from the defendant and the legal remedy must be inadequate. Plaintiff may then pursue a subsequent action for replevin or restitution.
Replevin
Plaintiff can obtain personal property taken by the defendant and recover detention damages.
Ejectment
When someone possess the land of another. Plaintiff can file for ejectment if he can establish title to the land, and the right to immediate possession. Plaintiff can seek damages for rental value of the property, profits related to defendant’s use of land, and damages for harm caused to the land.
Defendant cannot recover for improvements made to the land unless he made them in good faith.
Reformation
Reformation is the judicial rewriting of an agreement or another document to generally reflect the parties’ true intent. The parties must have entered into a non-voidable agreement and agreed to put it in writing, there must be sufficient certainty with respect to the terms of the agreement, and there must be a mistake.
Mutual Mistake: The writing does not match the agreement and both parties are unaware of the discrepancy.
Unilateral Mistake: Only one of the parties is mistaken as to the content or effect of a writing. Reformation is only allowed if the knowing party was aware of the mistake. Usually reformation is a stepping stone to damages or restitution.
