Remedies

Question 1

Requirements for compensatory damages in tort

Answer 1

1) foreseeable
2) sufficiently certain
3) unavoidable (reasonable steps taken to mitigate)

Question 2

What are general damages in tort?

Answer 2

Damages that naturally flow from the tortious action

They are PRESUMED (no need to plead)

Question 3

What are special damages in tort?

Answer 3

those that go beyond those presumed to occur from the tortious action.

MUST PLEAD and PROVE

Question 4

What is the standard measure of damages for destruction of personal property?

Answer 4

Fair market value of item

OR

Cost to replace

MINUS depreciation

Question 5

Difference between conversion and trespass to chattels

Answer 5

Both involve an interference w/ personal property.

Conversion involves a more substantial interference

Question 6

General remedy for conversion

Answer 6

forced sale of the item (∆ is forced to buy the item at FMV)

Question 7

General remedy for trespass to chattels

Answer 7

the repair value or rental value for period of possession

Question 8

Typical award when trespass doesn’t damage property

Answer 8

nominal damages

Question 9

Rules for economic damages

Answer 9

In general, can’t recover for purely economic loss.

Must be tacked onto personal injury or property damage

Question 10

Exception to the general rule for economic damages

Answer 10

You can recover purely economic loss from fraud.

Majority = benefit of the bargain test (damages are measured by the difference between the value of what πthought she would receive and what she received)

Minority = out of pocket approach (damages are measured by the difference between the K price and the value of what π received)

Question 11

When are punitive damages available in tort?

Answer 11

When ∆’s conduct was intentional or reckless AND egregious

Question 12

Liquidated damages clause

Answer 12

Attempt by the parties to determine what damages would be in case of breach.

Question 13

Requirements for valid liquidated damages clause

Answer 13

1) damages must be difficult to ascertain ex ante
2) parties must make reasonable attempts to forecast what damages might be
3) NOT PUNITIVE

Question 14

Big requirement for expectation damages in K law

Answer 14

• must be shown with sufficient certainty

Question 15

Measure of damages for breach of K by real estate seller

Answer 15

diff b/w market price and K price

Where the market price is the same as or lower than the contract price there’s no recovery for the buyer (though maybe there would be consequential damages)

Question 16

Employment Ks: breach by employer

Answer 16

Employee’s standard measure of damages is the lost wages Employee would have earned had he not been fired. Subject to an affirmative duty to mitigate.

KEY: if employee could’ve mitigated but failed to do so, recovery is limited to diff b/w K price and what employee could’ve received by taking the other job

Question 17

Employment Ks: breach by employee

Answer 17

Employer’s standard measure of damages is the cost of finding somebody else to do the job. If you have to pay more, the extra salary is recoverable from the breaching employee

Question 18

Involving construction / real estate: breach by owner or purchaser

Answer 18

Builder’s standard measure of damages is the profits he expected to make and the costs spent to date

Question 19

Involving construction / real estate: breach by builder or contractor

• if work is not yet completed
• if work is completed but with defects

Answer 19

Owner’s remedy if the work is not yet completed is cost above the K price to finish the job

If the Builder or Contractor completes the work but with defects, the Owner may recover either:

(a) cost to repair; OR
(b) the diminution in value caused

Question 20

Consequential damages

Answer 20

Any damages that are a foreseeable consequence of the breach

(Foreseeable to breaching party at time of K)

Question 21

What’s the purpose of a restitutionary remedy?

Answer 21

Prevent ∆ from being unjustly enriched

Question 22

Legal restitutionary remedies

Answer 22

1) ejectment –remove a ∆ who is wrongfully in possession of π’s real property
2) replevin –force the ∆ to return any property of the π that ∆ has wrongfully acquired

Question 23

Equitable restitutionary remedies

Answer 23

1) constructive trust –legal fiction that the defendant, who has wrongfully dispossessed the plaintiff of property, is holding that property for the plaintiff
2) equitable lien

Question 24

What is the diff b/w constructive trust and replevin?

Answer 24

Constructive trust differs from replevin because if the property has changed form, the constructive trust can be imposed on the new form. You are allowed to trace the new form and recover whatever property is available.

BUT you cannot trace property that is sold to a bona fide purchaser

Question 25

Benefit of an equitable lien

Answer 25

You become a secured creditor and gain priority of general creditors

Question 26

When will courts apply an equitable lien?

Answer 26

when we can trace the property to the wrongful action by ∆

Question 27

When is quasi-contract applied?

Answer 27

when one party confers a benefit on another with expectation of being paid, but where an agreement cannot be reached

Question 28

Equitable remedies in tort cases

Answer 28

Injunctions

 - TRO
 - preliminary injunction 
 - permanent injunction

Question 29

When are TROs and Preliminary injunctions seen?

Answer 29

When there is immediacy of harm

Question 30

When is a TRO granted?

Answer 30

When a π is facing irreparable harm within a short time (very few days)

Question 31

Default length of a TRO granted without notice

Answer 31

10-20 days

Question 32

What must be proven to grant a preliminary injunction?

Answer 32

1) probability that πwill prevail on the merits
2) denial of injunctive relief would produce waste, or great or irreparable injury
3) balance of hardships favors π
4) public interest factors favor granting PI

Question 33

Elements for a permanent injunction?

Answer 33

(a) Inadequate legal remedy
(b) Property right
(c) Feasibility
(d) Balancing
(e) Defenses

“I’m Passing the Freaking Bar, Damnit”

Question 34

When is a legal remedy inadequate?

Answer 34

1) damages too speculative
2) ongoing wrong would lead to a multiplicity of suits
3) real property involved
4) π is facing irreparable harm

Question 35

What typically poses a feasibility concern in permanent injunction analysis?

Answer 35

• lack of personal JX

- mandatory injunctions (forcing ∆ to do something… court would have to supervise)

Question 36

Defenses to a permanent injunction

Answer 36

1) unclean hands (wrongful conduct by π must be connected to suit)
2) laches

Question 37

Laches =

Answer 37

When a π unreasonably delays in bringing suit and that delay unduly prejudices ∆

Question 38

Factors for specific performance in Ks

Answer 38

(1) Definite and certain K
(2) inadequate legal remedy
(3) feasibility
(4) mutuality
(5) Defenses

“Do I Frame My Diploma?”

Question 39

Three problems for “definite and certain K” requirement for specific performance

Answer 39

1) Marketable title
- if seller seeks specific performance, they must show they have it

2) installment land-sale Ks where time is of the essence

3) Abatement
- think about buyer v. seller

Question 40

Feasibility concerns for specific performance

Answer 40

1) can’t enforce a personal services contract

BUT you can prevent ∆ from working for someone else in opposition (implied negative covenant to refrain from working for someone else – π can enjoin for breach)

Question 41

When is mutuality established?

Answer 41

mutuality is established if the party seeking specific performance has either:

(a) already substantially rendered performance
(b) can satisfactorily assure that perf will be rendered

Question 42

Defenses for specific performance in K

Answer 42

1) Unclean hands
2) Laches
3) Hardship –If enforcement of the contract would work an undue hardship on the ∆ bc of the π’s superior bargaining position
4) Equitable estoppel – where plaintiff has engaged in action/inaction that induces ∆ to engage in action/inaction that is now the subject of the lawsuit, π will be equitably estopped from equitable remedies