Remedies Flashcards
Requirements for compensatory damages in tort
1) foreseeable
2) sufficiently certain
3) unavoidable (reasonable steps taken to mitigate)
What are general damages in tort?
Damages that naturally flow from the tortious action
They are PRESUMED (no need to plead)
What are special damages in tort?
those that go beyond those presumed to occur from the tortious action.
MUST PLEAD and PROVE
What is the standard measure of damages for destruction of personal property?
Fair market value of item
OR
Cost to replace
MINUS depreciation
Difference between conversion and trespass to chattels
Both involve an interference w/ personal property.
Conversion involves a more substantial interference
General remedy for conversion
forced sale of the item (∆ is forced to buy the item at FMV)
General remedy for trespass to chattels
the repair value or rental value for period of possession
Typical award when trespass doesn’t damage property
nominal damages
Rules for economic damages
In general, can’t recover for purely economic loss.
Must be tacked onto personal injury or property damage
Exception to the general rule for economic damages
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)
When are punitive damages available in tort?
When ∆’s conduct was intentional or reckless AND egregious
Liquidated damages clause
Attempt by the parties to determine what damages would be in case of breach.
Requirements for valid liquidated damages clause
1) damages must be difficult to ascertain ex ante
2) parties must make reasonable attempts to forecast what damages might be
3) NOT PUNITIVE
Big requirement for expectation damages in K law
- must be shown with sufficient certainty
Measure of damages for breach of K by real estate seller
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)
Employment Ks: breach by employer
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
Employment Ks: breach by employee
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
Involving construction / real estate: breach by owner or purchaser
Builder’s standard measure of damages is the profits he expected to make and the costs spent to date
Involving construction / real estate: breach by builder or contractor
- if work is not yet completed
- if work is completed but with defects
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
Consequential damages
Any damages that are a foreseeable consequence of the breach
(Foreseeable to breaching party at time of K)
What’s the purpose of a restitutionary remedy?
Prevent ∆ from being unjustly enriched
Legal restitutionary remedies
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
Equitable restitutionary remedies
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
What is the diff b/w constructive trust and replevin?
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
Benefit of an equitable lien
You become a secured creditor and gain priority of general creditors
When will courts apply an equitable lien?
when we can trace the property to the wrongful action by ∆
When is quasi-contract applied?
when one party confers a benefit on another with expectation of being paid, but where an agreement cannot be reached
Equitable remedies in tort cases
Injunctions
- TRO - preliminary injunction - permanent injunction
When are TROs and Preliminary injunctions seen?
When there is immediacy of harm
When is a TRO granted?
When a π is facing irreparable harm within a short time (very few days)
Default length of a TRO granted without notice
10-20 days
What must be proven to grant a preliminary injunction?
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
Elements for a permanent injunction?
(a) Inadequate legal remedy
(b) Property right
(c) Feasibility
(d) Balancing
(e) Defenses
“I’m Passing the Freaking Bar, Damnit”
When is a legal remedy inadequate?
1) damages too speculative
2) ongoing wrong would lead to a multiplicity of suits
3) real property involved
4) π is facing irreparable harm
What typically poses a feasibility concern in permanent injunction analysis?
- lack of personal JX
- mandatory injunctions (forcing ∆ to do something… court would have to supervise)
Defenses to a permanent injunction
1) unclean hands (wrongful conduct by π must be connected to suit)
2) laches
Laches =
When a π unreasonably delays in bringing suit and that delay unduly prejudices ∆
Factors for specific performance in Ks
(1) Definite and certain K
(2) inadequate legal remedy
(3) feasibility
(4) mutuality
(5) Defenses
“Do I Frame My Diploma?”
Three problems for “definite and certain K” requirement for specific performance
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
Feasibility concerns for specific performance
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)
When is mutuality established?
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
Defenses for specific performance in K
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
