Remedies Flashcards
Remedies - LEGAL K REMEDIES
1) DAMAGES
- Expectation
- Consequential
- Incidental
- Liquidated
- Reliance
2) REPLEVIN
Remedies - K DAMAGES
EXPECTATION
Benefit of the bargain - measured by the difference between K price and market price
CONSEQUENTIAL
Other losses naturally flowing from the breach
INCIDENTAL
Expenses reasonably incurred in shipping, storage, etc of goods
RELIANCE
Out of pocket expenses incurred in performing or preparing to perform; recoverable for promissory estoppel or where compensatory damages are too speculative
LIQUIDATED Upheld if (1) damages were difficult to ascertain at the time of formation and (2) the stipulated amount was a reasonable forecast of damages
Remedies - COMMON LAW REPLEVIN
π can recover prejudgment possession through claim and delivery where:
1) ∆ has possession of wrongfully taken or detained personal property AND
2) π has the immediate right to reclaim possession or title
Remedies - UCC REPLEVIN
TYPE ONE
1) Buyer has paid for some or all of the goods
2) Seller refuses to deliver them, AND
3) EITHER seller becomes insolvent w/in 10 days of the first payment OR the goods were purchased for family, household, or personal purposes
TYPE TWO
1) Goods are identified to the K and
2) Buyer is unable to find substitute goods
Remedies - EQUITABLE K REMEDIES
1) Provisional Injunctions
2) Specific Performance
3) Rescission
4) Reformation
Remedies - TEMPORARY RESTRAINING ORDER
1) Reasonable likelihood of success on the merits
2) Threat of IMMEDIATE irreparable harm if injunction is not granted
3) The balance of hardships favors the injunction
4) Notice
Remedies - PRELIMINARY INJUNCTIONS
1) Reasonable likelihood of success on the merits
2) Threat of irreparable harm if not granted
3) Balance of hardships favors injunction
4) Notice
Remedies - SPECIFIC PERFORMANCE
Movant is entitled to SP when:
1) there is a valid and enforceable K, definite and certain
2) he has met all conditions or they are excused
3) the legal remedy is inadequate
4) court supervision is feasible
Remedies - GROUNDS FOR RESCISSION
1) MISTAKE as to a material fact that is either:
- Mutual or
- Unilateral and:
- -known to other party (traditional)
- -π’s hardship outweighs detriment to ∆’s expectations (modern)
2) MISREPRESENTATION
- False representation
- Intentionally, negligently, or innocently made
- w/ intent to induce π’s reliance on the representation
- which π in fact relies on to his detriment
Remedies - REFORMATION
Ct can modify a writing to conform to the parties’ intentions where there has been:
1) mutual mistake of fact regarding the instrument’s conformity to the parties’ intentions
2) unilateral mistake where one party knows the instrument contains an error
3) mistake of law as to the legal meaning of terms, OR
4) fraud
Remedies - LEGAL TORT REMEDIES
1) General damages - those foreseeable from the injury itself
2) Special Damages - could not have been foreseen from mere occurrence of the wrong
3) Punitive Damages - may be awarded for willful and wanton conduct amounting to fraud, oppression, or malice
Remedies - EQUITABLE TORT REMEDIES
1) TRO
2) Preliminary Injunction
3) Permanent Injunction
Remedies - PERMANENT INJUNCTION
1) Success on the merits
2) Inadequate legal remedy
3) Feasibility of court supervision
4) Balance of hardships is in movant’s favor
Remedies - REMEDIES FOR WASTE
VOLUNTARY
- Injunction to stop future harm
- Damages for LESSER of diminution in value or cost of repair
PERMISSIVE
-Damages for lesser of diminution in value or cost of repair
AMELIORATIVE
- Damages limited to cost of restoration to original condition
- Injunction against substantial changes if short-term tenant
Remedies - EQUITABLE PROPERTY REMEDIES
1) Ejectment
2) Injunction
3) Constructive Trust
4) Equitable Lien
5) Resulting Trust
Remedies - CONSTRUCTIVE TRUST
Requires ∆ to convey title to π, who gets any increase in value, where ∆ acquired full title to property, retention of which would constitute unjust enrichment
Unavailable where ∆ commingles $ or improves his own property w/ π’s $/property/proceeds UNLESS ∆ is a conscious wrongdoer
Remedies - EQUITABLE LIEN
Security interest in property to secure an equitable debt
Appropriate where wrongdoer:
- Commingles own funds w/ misappropriated funds OR
- Sells title acquired w/ misappropriated funds and commingles the proceeds
Remedies - RESULTING TRUST
Presumption of resulting trust arises when π supplies all or part of the consideration for property but does not hold title to it.
Rebutted w/ evidence of:
1) gift,
2) loan, or
3) repayment of debt
Remedies - EQUITABLE DEFENSES
LACHES
Unreasonable delay causing prejudice to ∆
UNCLEAN HANDS
Party seeking equity must not be guilty of inequitable or wrongful conduct w/ respect to the subject matter of the suit that harmed the other party to the transaction
EQUITABLE ESTOPPEL
π engaged in inequitable conduct that induced ∆ in action at issue in suit
