Remedies

Question 1

Compensatory damages

Answer 1

(1) causation
(2) foreseeability
(3) certainty – damages cannot be speculative
(4) unavoidability (P must take reasonable steps to mitigate)

Question 2

Torts certainty requirements

Answer 2

Economic losses subject to certainty rules, but non-economic losses (pain and suffering, etc.) are not

Question 3

Form of torts judgment payments

Answer 3

The judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern rule)

Question 4

Types of tort damages (3)

Answer 4

(1) compensatory
(2) nominal
(3) punitive

Question 5

Punitive damages rules (3)

Answer 5

NO PUNITIVE FOR K CLAIMS

(1) must have compensatory/and or nominal damages ward
(2) D’s fault must be greater than negligence
(3) generally awarded proportionate to actual damages

Question 6

Restitutionary remedies

Answer 6

Based on the idea that D has been unjustly enriched. Calculated based on value of benefit

Question 7

Replevin (2)

Answer 7

(1) Plaintiff has right to possession of specific personal property
(2) Defendant is wrongfully witholding
(to recover pre-trial, may need to post a bond)

Question 8

Ejectment (2)

Answer 8

(1) P has right to possession of real property

(2) D is wrongfully witholding

Question 9

Constructive trusts and equitable liens

Answer 9

Equitable restitutionary remedies in which D has title to property. For constructive trusts, property is returned and for equitable lien it is sold (and deficiency judgment can be imposed)

Tracing is allowed. Bona fide purchasers prevail over P. P prevails over unsecured creditors

Question 10

TRO / Preliminary Injunction (2)

Answer 10

(1) irreprable injury

(2) likelihood of success on merits

Question 11

Permanent Injunction (4)

Answer 11

(1) legal remedy inadequate
(2) feasibility of enforcement (only relevant for mandatory injunction based on difficulty of supervision / ensuring compliance
(3) Balancing hardships (including public hardship) (doesn’t apply if D acted willfully)
(4) Any defenses? (unclean hands, laches, impossibility, 1A)

Question 12

Laches

Answer 12

P’s delay since learning of injury is both unreasonable and prejudicial to D

Question 13

Who is bound by injunction? (3)

Answer 13

(1) parties
(2) agents/employees with notice
(3) others acting in concert with notice

Question 14

Contempt

Answer 14

Compare civil contempt (to coerce compliance) against criminal contempt (to punish)

Question 15

Consequential Damages

Answer 15

[K] related damages foreseeable at time of formation of K

Question 16

Liquidated damages (2)

Answer 16

(1) damages difficult to ascertain at time of formation

(2) liquidated damages are reasonable forecast of what they would be

Question 17

Specific performance (5)

Answer 17

[K]

(1) K is valid, certain, and definite
(2) P’s K conditions must be satisfied (unless (a) seller P and minor deficiency or buyer P and very major deficiency; if deficiency, court will lower [abate] purchase price or (b) time is of the essence issue)
(3) inadequate legal remedy (land is always unique, personal property rarely unique unless one of a kind, very rare, personal significance, circumstances)
(4) feasibility of enforcement (i.e. no personal services Ks; non-compete covenants if (a) services unique; (b) reasonable in geographic and temporal scope)
(5) Defenses? (unclean hands, laches, unconscionability, mistake, misrepresentation, statute of frauds)

Question 18

Statute of frauds defense to specific performance

Answer 18

If one has rendered (1) valuable part performance (payment, possession, valuable improvements, valuable services) (2) in reliance on the K, taken out of statute of frauds and specific performance will be granted

Question 19

Recission (2)

Answer 19

(1) grounds for recission (mutual mistake of material fact, unilateral mistake and non-mistaken party knew or should have known, misrepresentation + reliance
(2) defenses? (unclean hands, laches)

Question 20

Reformation (3)

Answer 20

(1) valid K
(2) grounds for reformation (mutual mistake, unilateral mistake with knowledge (only), misrepresentation)
(3) Defense (unclean hands, laches)