Remedies Flashcards
Contract damages must be
1) Causal, 2) foreseeable at time of K, 3) certain, and 4) unavoidable
Expectancy Damages
Seek to put the parties in the position they would’ve been in had the K been performed
Damages are difference between the market price/cover (UCC) and the K price
Consequential Damages
Damages that logically flow from the breach
Apply 4-part analysis
Reliance Damages
Seek to put the party in the position they would’ve been in had the K not been formed
Out of pocket costs incurred before the K is performed
Only available if the expectancy damages are too speculative or K was never performed
Apply 4-part analysis
Incidental Damages
Expenses reasonably incurred in shipping, care, and custody of the goods, and for the seller, in re-selling the goods after a breach
Liquidated Damages
Parties’ agreed-upon damages
Upheld if damages are extremely difficult to ascertain and stipulated amount is in a reasonable forecast of damages
Contract Equitable Remedy - Specific Performance
1) There’s a valid K, with definite and certain terms;
2) P has met all conditions required or they’re excused;
3) Legal remedy is inadequate; and
4) The remedy is feasible for the court to supervise
Never available in personal services Ks
Contract Equitable Remedy - Temporary Restraining Order
1) Irreparable injury;
2) Likelihood of success;
3) Balance of hardships favors the injunction;
4) Irreparable harm is imminent; and
5) Notice to the adverse party, if possible
Contract Equitable Remedy - Preliminary Injunction
1) Irreparable injury;
2) Likelihood of success;
3) Balance of hardships favors the injunction; and
4) Notice to the adverse party
Contract Equitable Remedy - Rescission for Mistake
Mistake must go to the basis of the bargain
Mutual mistake
Unilateral mistake (majority: granted if non-mistaken party knows or should know of the mistake)
Contract Equitable Remedy - Recission for Misrepresentation
1) False representation/omission of material fact;
2) D knew (intentional), should’ve known (negligent), was false, or innocently made (innocent); and
3) P reasonably relied to detriment
Contract Equitable Remedy - Reformation
Rewriting the K
Requires a valid prior agreement
Granted for mutual mistake of fact, unilateral mistake, mistake of law, and fraud
Declaratory Relief
Rights and obligations of parties to a K
Tort damages must be
1) Causal, 2) foreseeable, 3) certain, and 4) unavoidable
Torts Equitable Remedies - TROs and Preliminary Injunctions
Same elements
Torts Equitable Remedies - Permanent Injunction
1) Inadequate legal remedy;
2) Feasibility of enforcement;
3) Balance of hardships favors injunction (no balancing for intentional torts)
Property Remedies - Injunction
Trespass and nuisance
Waste
An act by someone in rightful possession of property that permanently injures the land, harming another’s future possession
Voluntary Waste
Deliberate destructive acts
Remedies: injunction and diminution in value
Permissive Waste
Acts of omission or neglect
Remedies: cost of repairs or diminution in value
Ameliorative Waste
Alter the property but results in an increase in value
Remedy: cost of restoration
Quasi-Contract
Imposes legal obligation on D who gets a benefit pursuant to an unenforceable K or a wrongful act
Property Legal Restitutionary Remedies - Replevin
Recovery of personal property wrongfully taken or detained
Replevin unavailable if property is sold to a BFP
Property Legal Restitutionary Remedies - Common Law Replevin
D wrongfully takes or detains P’s personal property to which P has an immediate right to possession/title
Property Legal Restitutionary Remedies - UCC Replevin
Type 1
1) The goods are specifically identified in the K, and 2) P is unable to cover
Type 2
1) Buyer made part payment, 2) seller failed to deliver, and either a) seller becomes insolvent within 10 days of receiving payment, or b) goods were purchased for personal, family, or household purposes
Property Legal Restitutionary Remedies - Ejectment
Remedy to restore possession of real property against a D in wrongful possession of it
Property Equitable Remedies - Constructive Trust
Only applies to Ds who have full title to the property
Retention of title to property by wrongdoer would constitute unjust enrichment
P gets benefit of appreciation in value
Doesn’t apply if wrongdoer commingles money, improves own property, or transfer title to a BFP
Property Equitable Remedies - Equitable Lien
D commingled funds, improved own property, or used funds from sale of title
P not entitled to appreciation
If commingled funds, P gets the lowest intermediate balance
Property Equitable Remedies - Resulting Trust
Failure of an express trust, or when a person who supplied some or all of consideration doesn’t hold title (Purchase Money Resulting Trust)
Supply of consideration but lack of title creates a rebuttable presumption of resulting trust
Presumption rebutted by evidence that money was a gift, loan, or payment of a debt
Equitable Defenses - Laches
1) Unreasonable delay in bringing suit that 2) prejudices/harms D
Equitable Defenses - Unclean Hands
P can’t be guilty of inequitable/wrongful conduct with respect to subject matter of the present suit
Equitable Defenses - Sale to Bona Fide Purchaser
Cuts off replevin against wrongdoer and BFP
Cuts off constructive trust/equitable lien against BFP
BFP liable for actual damages to true owner in an action for conversion of personal property
