Remedies Flashcards

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1
Q

Legal damages - torts

A
  1. Compensatory: $ for loss or injury
    - general (all Ps): foreseeable losses (pain/suffering)
    - special (this P): must be specifically pleaded (lost wages)
  2. Nominal
  3. Punitive (> negligence)
  4. Compensatory limitation:
    - causation (but for)
    - foreseeable (by reasonable person)
    - certain (not overly speculative)
    - unavoidable (duty to mitigate)
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2
Q

Legal restitution - tort

A
  1. Money restitution: D restores the benefit to P
  2. Replevin (chattel)
  3. Ejectment (real property)
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3
Q

Equitabe restitution - tort

A
  1. 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
  2. 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
  3. Equitable defenses
    - laches
    - unclear hands
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4
Q

Injunctions - tort

A
  1. 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
  2. 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
  3. 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
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5
Q

Legal damages - contract

A
  1. 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
  2. Damage limitations
    - causation
    - foreseeable
    - certainty
    - unavoidable
    - liquidated clause controls
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6
Q

Legal restitution - contract

A
  1. Quasi-contract (money restitution): D has derived a benefit and fairness requires payment to P
  2. Replevin (chattel)
  3. Ejectment (real property)
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7
Q

Equitable remedies - contract

A
  1. Rescision (undo bargain)
    - voidable K (i.e. mistake, fraud, duress)
    - P gets back consideration given to D
  2. Reformation (rewrite K)
    - valid original K required
  3. Equitable defenses
    - - laches
    - - unclean hands
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8
Q

Injunction - contract

A
  1. 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
  2. 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
  3. 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
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