Remedies Flashcards
1
Q
Legal damages - torts
A
- Compensatory: $ for loss or injury
- general (all Ps): foreseeable losses (pain/suffering)
- special (this P): must be specifically pleaded (lost wages) - Nominal
- Punitive (> negligence)
- Compensatory limitation:
- causation (but for)
- foreseeable (by reasonable person)
- certain (not overly speculative)
- unavoidable (duty to mitigate)
2
Q
Legal restitution - tort
A
- Money restitution: D restores the benefit to P
- Replevin (chattel)
- Ejectment (real property)
3
Q
Equitabe restitution - tort
A
- Constructive trust: D wrongfully got title to P’s property
- wrongful act
- D has legal title to convey
- inadequate legal remedy
- - damages too speculative
- - insolvent D
- - replevin not available
- - property is unique
- property can be traced
- - P gets benefit of value increase
- - property must be solely traceable
- third party priority
- - BFP over P
- - P over unsecured creditors
- P can NOT seek deficiency judgment against D - Equitable lien: property improved with P’s property, not acquire property
- wrongful act
- D has legal title
- inadequate legal remedy
- - damages too speculative
- - insolvent D
- - replevin not available
- - property is unique
- property can be traced
- - OK if not solely traceable
- third party priority
- - BFP over P
- - P over unsecured creditors
- P can seek deficiency judgment against D - Equitable defenses
- laches
- unclear hands
4
Q
Injunctions - tort
A
- TROs: to preserve status quo
- irreparable harm
- likely success on merits
- inadequate legal remedy
- - damages too speculative
- - inadequate because health/safety issue
- - insolvent D
- - multiplicity of suits (continuous wrong)
- - prospective tort
- - property is unique
- balancing hardships - Preliminary injunction: to preserve status quo
- irreparable harm
- likely success on merits
- P posts bond
- inadequate legal remedy
- - damages too speculative
- - inadequate because health/safety issue
- - insolvent D
- - multiplicity of suits (continuous wrong)
- - prospective tort
- - property is unique
- balancing of hardships
- no defenses
- - laches: unreasonable delay
- - unclean hands: only related conduct counts - Permanent injunction: to grant relief sought
- inadequate legal remedy
– damages too speculative
– inadequate because health/safety issue
– insolvent D
– multiplicity of suits (continuous wrong)
– prospective tort
– property is unique
- property interest not required in CA
- feasibility of enforcing
- balancing of hardships
- no defenses
– laches
– unclean hands
I PRAY FOR BIG DESERTS
5
Q
Legal damages - contract
A
- Types of legal damages
- expectation: value of benefit P expected to receive from K
- consequential: direct and foreseeable consequence
- incidental: damages reasonably incurred
- reliance: damages to put P in same position had K never made
- liquidated damages
- - difficult to calculate
- - reasonable relationship to anticipated loss
- nominal damages
- no punitive damages in K - Damage limitations
- causation
- foreseeable
- certainty
- unavoidable
- liquidated clause controls
6
Q
Legal restitution - contract
A
- Quasi-contract (money restitution): D has derived a benefit and fairness requires payment to P
- Replevin (chattel)
- Ejectment (real property)
7
Q
Equitable remedies - contract
A
- Rescision (undo bargain)
- voidable K (i.e. mistake, fraud, duress)
- P gets back consideration given to D - Reformation (rewrite K)
- valid original K required - Equitable defenses
- - laches
- - unclean hands
8
Q
Injunction - contract
A
- TROs
- irreparable harm
- likely success on merits
- inadequate legal remedy
- - damages too speculative
- - inadequate because health/safety issue
- - insolvent D
- - multiplicity of suits
- - property is unique - Preliminary injunction
- irreparable harm
- likely success on merits
- inadequate legal remedy
- - damages too speculative
- - inadequate because health/safety issue
- - insolvent D
- - multiplicity of suits
- - property is unique
- balancing of hardships
- no defenses
- - laches
- - unclean hands - Specific performance
- K is valid
- K conditions satisfied
- mutuality of performance: court must be able to order both parties to perform
- enforcement feasible (services K)
- inadequate legal remedy
– damages too speculative
– inadequate because health/safety issue
– insolvent D
– multiplicity of suits
– property is unique
- no defenses
– laches: unreasonable delay
– unclean hands: must be same transaction
– defenses to underlying K
CHOCOLATE CHEESECAKE IS MY FAVORITE DESSERT