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Select Topics Part 2 > Remedies > Flashcards

Remedies Flashcards

1
Q

Remedy Causes of Action

A
  1. Contract
  2. Tort
  3. Property
  4. Quasi-Contract/Unjust Enrichment/Restitution
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2
Q

Contract Legal Remedies

A
  1. Compensatory Damages
  2. Equitable Remedies
  3. Provisional Remedies
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3
Q

Expectancy Damages

A

Benefit of the Bargain Damages.

Seeks to put parties in the position they would have been in had the contract been performed.

Damages = Market price [-] Contract Price

UCC cover - cost of replacing the goods

cost of cover [-] contract price

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4
Q

Lost Volume Seller

A

Someone who can sell as many of an item as they can find buyers.

If buyer repudiates purchase, damage is the lost profit on the item, even if that particular item is resold to another buyer

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5
Q

Consequential Damages Analysis

A
  1. Causal - damages would not occur but for the breach
  2. Foreseeable - at time of contract
  3. Certain
  4. Unavoidable - duty to mitigate
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6
Q

Consequential Damages

A

Logically flow from a breach of the contract other than the cost of sale, profit, and purchase price.

Contract Analysis.

If damage is lost future profits beyond profit from immediate transaction, even though benefit of the bargain, use four part analysis if profit is based on projections.

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7
Q

Reliance Damages

A

Seeks to put the party in the position they would have been in had the contract not been formed in the first place

Out of pocket costs incurred by a party before the contract is actually performed.

Only available if benefit of the bargain damages are too speculative, otherwise, such damages are possible expectancy damages

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8
Q

Incidental Damages

A

Expenses reasonably incurred in shipping, care, and custody of goods and, for the seller, in re-selling the goods after a breach

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9
Q

Liquidated Damages

A

Parties stipulated-to amount.

Upheld if damages will be extremely difficult to ascertain and the stipulated amount is a reasonable forecast of the damages.

Look at proportionality of the stipulated amount to the possible level of damages

Otherwise, void as a penalty

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10
Q

Specific Performance

A

Enforcement of the contract after a breach.

ELEMENTS:
1. valid and enforceable contract, with definite and certain terms

  1. party has met all the conditions required or performance of the conditions is excused
  2. legal remedy is inadequate
  3. remedy is feasible
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11
Q

TRO and Preliminary Injunctions

A

Solely in aid of specific performance or replevin.

To preserve subject of contract from imminent sale or transfer.

Subject of contract must be unique

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12
Q

Preliminary Injunction Elements

A
  1. Irreparable Injury
  2. Likelihood of success
  3. Balance of hardships favors the injunction
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13
Q

TRO

A
  1. Irreparable Injury
  2. Likelihood of success
  3. Balance of hardships favors the injunction
  4. Immediacy of harm
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14
Q

Rescission

A

Undoing of a contract due to mistake or misrepresentation

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15
Q

Rescission by Mistake

A

Mistake must be as to a material fact (basis of the bargain)

if mistake is unilateral:

  • majority: non-mistaken party knows of mistake
  • minority: balance harms to each party
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16
Q

Rescission by Misrepresentation

A

False representation/omission of a material fact

D knew (intentional); should have known (negligent) was false OR innocently made (innocent misrepresentation).

P reasonably relied to his detriment

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17
Q

Reformation

A

Requires valid prior agreement.

Grounds:

  1. Mutual mistake (scrivener’s error);
  2. Unilateral mistake; and
  3. Fraud
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18
Q

Declaratory Relief

A

Determines rights and obligations of the parties to a contract

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19
Q

Compensatory Damages

A
  1. Expectation Damages
  2. Consequential Damages
  3. Reliance Damages
  4. Incidental Damages
  5. Liquidated Damages
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20
Q

Equitable Remedies - Contracts

A
  1. Specific Performance
  2. Rescission
  3. Reformation
  4. Declaratory Relief
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21
Q

Provisional Remedies

A
  1. TRO

2. Preliminary Injunctions

22
Q

Tort Damages

A
  1. General damages foreseeable from the injury (pain and suffering)
  2. Special damages that could not have been foreseen from the mere occurrence of the wrong (medical expenses, lost wages)
  3. Punitive damages

ELEMENTS:

  1. Causal (but for)
  2. Foreseeable - at time of breach of duty (relaxed for intentional torts)
  3. Certain
  4. Unavoidable

Special and punitive damages must be pleaded in the complaint.

23
Q

Punitive Damages

A

Awarded for willful and wanton conduct amounting to fraud, oppression, or malice

Fraud - intentional misrepresentation, deceit, or concealment of a material fact known to D with intention on the part of D of depriving person/property or legal rights or otherwise causing injury

Oppression - despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights

Malice - conduct intended by D to cause injury to P or despicable conduct which is carried on by D with a willful and conscious disregard of the rights or safety of others

Subject to due process issues - invalid if grossly excessive

Notice Factors:

  1. reprehensibility of D’s conduct;
  2. disparity between actual or potential harm suffered and the punitive award;
  3. difference between punitive award and criminal or civil penalties authorized for comparable misconduct
24
Q

Equitable Tort Remedies

A
  1. Provisional Remedies

2. Permanent Injunction

25
Q

Tort TRO/Preliminary Injunction

A
  1. Irreparable harm (uniqueness/threat of permanent loss)
  2. Reasonable likelihood of success on the merits - fulfills elements of underlying cause of action
  3. Balance of hardships favors injunction (no balancing if act was intentional)
  4. (TRO) - Harm is imminent
26
Q

Permanent Injunction

A
  1. Legal Remedy is inadequate
  2. Feasibility of Enforcement - ease of court enforcement (negative v. mandatory injunction)
  3. Balance of the hardships favors injunction (only in encroachment/nuisance case; no balancing if act was intentional)
27
Q

Irreparable Harm

A

Unique harm that will be permanently lost if TRO/injunction not granted.

28
Q

Inadequate legal remedies

A
  • irreparable harm (uniqueness of good/object of contract/threat of permanent loss)
  • money damages inadequate
  • speculative damages
  • multiplicity of suits
  • threat of prospective tort
29
Q

Property Remedies

A
  1. Injunctions for trespass and nuisance

2. Waste

30
Q

Waste

A
  1. Voluntary Waste
  2. Permissive Waste
  3. Ameliorative Waste
31
Q

Voluntary Waste

A

Deliberate destructive acts without permission

Remedies - injunction, damages for diminution in value/cost of repair, treble damages

32
Q

Permissive waste

A

Acts of omission or neglect, such as failing to repair conditions that have fallen into disrepair or diminution in value

Remedies - damages for diminution in value/cost of repair

33
Q

Ameliorative Waste

A

Acts that alter the property but result in an increase in value

Remedies - cost of restoration, if anything

34
Q

Unjust Enrichment/Quasi-Contract

A

Legal theory to support restitution in case of wrongful retention of benefits and property due to:

  • illegal or unenforceable contract; OR
  • wrongful retention or obtaining of property (conversion/fraud)
35
Q

Legal Restitutionary Remedies

A
  1. Replevin

2. Ejectment

36
Q

Replevin

A

Legal restitutionary remedy.

Purpose is recovery of personal property wrongfully taken or detained.

Common Law - Recover prejudgment possession through “claim and delivery”; based on immediate right to possession/title

UCC -

Type 1 (Anticipatory Repudiation)

  • goods specifically identified in contract
  • P unable to cover (obtain equivalent goods)
  • Replevin granted conditioned on payment for goods

Type 2

  • Buyer made payment; and
  • Seller failed to deliver; and
  • Seller insolvent within 10 days; OR
  • Goods for personal, family, or household purpose
37
Q

Ejectment

A

Legal remedy to have possession restored to a P against a D wrongfully in possession of real property, such as a holdover tenant

38
Q

Equitable Remedies - Unjust Enrichment

A
  1. Constructive Trust
  2. Equitable Lien
  3. Resulting Trust
39
Q

Constructive Trust

A

Provides for specific restitution of specific property that has been wrongfully acquired by a D

May only be imposed on property to which D obtains FULL title; applies to D who wrongfully obtains title to P’s property or uses proceeds of Ps property with which D has been unjustly enriched to purchase full title to property

Court must find that retention of title to property by D-wrongdoer would constitute unjust enrichment

P gets benefit of any increase in the value of property.

Constructive trustee sole obligation to convey property to P

40
Q

Equitable Lien

A

Does not provide specific restitution of specific property, but a security interest of an equitable debt

Where D commingles P’s money with their own or others’ funds or improves their own property with P’s money, property / proceeds thereof, or where D conveys title, CT unavailable and equitable lien in favor of P to extent of converted funds/value of improvement will be imposed.

P does not get benefit of an increase in value of property subject to EL

commingled funds - P gets lowest intermediate balance (lowest balance after recalculating the balance after each deposit and withdrawal). BUT IF wrongful act (theft/embezzlement), and funds are used to acquire title, CT appropriate if value increases

41
Q

Resulting Trust

A
  1. When express trust fails because beneficiary is dead, equity creates a resulting trust in the settlor or, if settlor is dead, settlor’s estate
  2. Purchase money resulting trust - person who takes title did not supply all or part of the consideration and thus holds title or partial title in trust for the person who did supply the consideration (resulting beneficiary)

Resulting trustee’s sole obligation is to convey property to P

Supply of consideration but lack of title creates a presumption of resulting trust.

Presumption may be rebutted with evidence of:

  1. Gift
  2. Loan
  3. Payment of Debt
42
Q

Misappropriation of Money

A

Tort conversion of funds.

Remedies -

  1. Damages for conversion - compensatory/punitive
  2. Restitution under quasi-contract - constructive trust (if specifically identify money/property purchased with it); or equitable lien (if money commingled; used to improve or buy property with another person or with D’s own funds)
43
Q

Misappropriation of Personal Property

A
  1. Legal Remedies
  • Damages for conversion or trespass to chattels - value of property at time of conversion; cost of recovery if trespass to chattel); punitive damages
  • Replevin - if not cut off by BFP
  1. Equitable Remedies - if not cut off by BFP
  • constructive trust
  • equitable lien
  • mandatory injunction (only if replevin is inadequate)
44
Q

Equitable Defenses

A
  1. Laches
  2. Unclean Hands
  3. Sale to a BFP
  4. Injunction Not Available
45
Q

Laches

A

Equitable equivalent to a statute of limitations.

Elements:

  1. unreasonable delay;
  2. prejudice/harm to D - loss of evidence

Period of laches may be shorter than legal statute of limitations but cannot be longer.

Laches run when P has knowledge that a right has been infringed

46
Q

Unclean Hands

A

Party seeking equitable relief must not be guilty of inequitable or wrongful conduct with respect to the subject matter of the suit

47
Q

Sale to Bona Fide Purchaser

A

BFP cuts off remedies of replevin, constructive trust, and equitable lien as to that BFP

BFP is liable for actual, but not punitive damages to true owner in an action for conversion of personal property

48
Q

Injunctions Not Available

A
  1. Breach of Contract (except to aid Replevin or Specific Performance involving unique subject of contract)
  2. Criminal Prosecution - without strong showing of irreparable injury
  3. Criminal Misconduct - unless crime is also a public nuisance (one that endangers public health and welfare)
49
Q

42 USC 1983

A

Anyone under color of state law that deprives another of federal constitutional or statutory rights shall be liable to the injured person in an action at law, suit in equity, or other proper proceeding

50
Q

Lodestar

A

reasonable calculation for attorneys fees is the market hourly rate times the hours worked

51
Q

collateral source rule

A

prohibits evidence that P has already been compensated by another source other than D

Select Topics Part 2 (7 decks)

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