Remedies Flashcards
Compensatory damages
(1) causation
(2) foreseeability
(3) certainty – damages cannot be speculative
(4) unavoidability (P must take reasonable steps to mitigate)
Torts certainty requirements
Economic losses subject to certainty rules, but non-economic losses (pain and suffering, etc.) are not
Form of torts judgment payments
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)
Types of tort damages (3)
(1) compensatory
(2) nominal
(3) punitive
Punitive damages rules (3)
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
Restitutionary remedies
Based on the idea that D has been unjustly enriched. Calculated based on value of benefit
Replevin (2)
(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)
Ejectment (2)
(1) P has right to possession of real property
(2) D is wrongfully witholding
Constructive trusts and equitable liens
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
TRO / Preliminary Injunction (2)
(1) irreprable injury
(2) likelihood of success on merits
Permanent Injunction (4)
(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)
Laches
P’s delay since learning of injury is both unreasonable and prejudicial to D
Who is bound by injunction? (3)
(1) parties
(2) agents/employees with notice
(3) others acting in concert with notice
Contempt
Compare civil contempt (to coerce compliance) against criminal contempt (to punish)
Consequential Damages
[K] related damages foreseeable at time of formation of K
Liquidated damages (2)
(1) damages difficult to ascertain at time of formation
(2) liquidated damages are reasonable forecast of what they would be
Specific performance (5)
[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)
Statute of frauds defense to specific performance
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
Recission (2)
(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)
Reformation (3)
(1) valid K
(2) grounds for reformation (mutual mistake, unilateral mistake with knowledge (only), misrepresentation)
(3) Defense (unclean hands, laches)
