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Bar Study > Remedies > Flashcards

Remedies Flashcards

Studying remedies

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1
Q

Order of analysis for remedies essays

A

First, determine any legal remedies.
Second, determine any restitutionary remedies (legal and equitable).
Third, determine any equitable remedies.

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2
Q

Tort remedies

A

Legal remedies: damages

Legal restitutionary remedies: any legal restitution, replevin, ejectment.

Equitable restitution: constructive trust/equitable lien.

Equitable remedies: injunctive relief.

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3
Q

Tort remedies: list three types of damages

A

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

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4
Q

Tort remedies: requirements re: compensatory damages

A

4 requirements:

(1) actual causation
(2) proximate causation
(3) certainty (damages not too speculative)
- PAST losses must be more certain than FUTURE (which must be more likely than not)
(4) unavoidability: P must take reasonable steps to mitigate

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5
Q

Tort remedies: requirements re: compensatory damages: ECONOMIC LOSSES

A

E.g., Medical expenses, lost earnings.

Basic certainty rules apply (past more certain than future; future more likely than not).

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6
Q

Tort remedies: requirements re: compensatory damages: NON-ECONOMIC LOSSES

A

E.g., pain and suffering

Basic certainty rules do NOT apply. Jury can award what it wants subject to proper jury instructions.

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7
Q

Tort remedies: requirements re: compensatory damages: FORM of the judgment payment

A

single lump sum discounted to present value, inflation traditionally NOT taken into account but the modern rule now DOES take inflation into account.

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8
Q

Tort remedies: nominal damages

A

P has suffered no actual injury, but P wants to sue to establish rights.

E.g., a suit over an easement.

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9
Q

Tort remedies: punitive damages: three basic rules

A

(1) CANNOT be alone, must be on top of another form of relief
(2) fault must be GREATER than negligence
(3) relative proportionality with single-digit ratios

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10
Q

Tort remedies: restitutionary remedies basic concept

A

To prevent D’s unjust enrichment

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11
Q

Tort remedies: “LEGAL” restitutionary remedies

A

Amount calculated based on benefit conferred to D

opposite of damages, which is calculated as harm to P

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12
Q

Tort remedies: can P recover both compensatory damages and legal restitution?

A

NO! But on essay analyze both and conclude that P would have larger amount of the two.

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13
Q

Tort remedies: can a P recover punitive damages on top of restitution damages?

A

Yes, but only for torts!

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14
Q

Can a P recover punitive damages on top of restitution damages?

A

Yes, but only for torts!

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15
Q

Tort remedies: replevin

A

A type of legal restitution

P recovers a specific piece of property, P must show:

(1) P has right to possession and
(2) there is a wrongful withholding by D.
* *same as for ejectment for real property

P can recover the chattel BEFORE trial, but P must
post bond. BUT D can then post a “redelivery bond” and then keep the chattel during trial.

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16
Q

Tort remedies: ejectment

A

P recovers specific REAL property (e.g., land)

P recovers specific property, P must show:

(1) P has right to possession and
(2) there is a wrongful withholding by D.
* *same as for replevin for chattel

17
Q

Tort remedies: constructive trusts and equitable liens:

  • what category are they in?
  • define constructive trust and process
  • define equitable lien and process
  • explain how to choose which to use
A

Types of “equitable” restitution remedies

Constructive trust: when D has TITLE that D improperly acquired, and we treat him as a trustee to return the property to itself back to P.
Process: show legal remedies (e.g., damages) inadequate (likely because property super unique or D insolvent).

Equitable lien: when D has TITLE to property that D improperly acquired, the property is sold, proceeds go to P. If less than amount P is owed (which is basically what P paid for it), D then gets a deficiency judgment for personal assets to pay P the remaining.
Process: show legal remedies (e.g., damages) inadequate (likely because D insolvent).

But BFPs always are safe!

How to choose?

  • If property value goes DOWN, go with equitable lien (because then P can recover the full purchase price)
  • If property value goes UP, go with constructive trust (because then P can recover the property itself, which is more valuable than what P paid).
18
Q

Tort remedies: constructive trusts

A

Type of “equitable” restitution remedies

Constructive trust: when D has TITLE that D improperly acquired, and we treat him as a trustee to return the property to itself back to P.

Process: show legal remedies (e.g., damages) inadequate (likely because property super unique or D insolvent).

19
Q

Tort remedies: equitable lien

A

Type of “equitable” restitution remedies

Equitable lien: when D has TITLE to property that D improperly acquired, the property is sold, proceeds go to P. If less than amount P is owed, D then gets a deficiency judgment for personal assets to pay P the remaining.

P must show that (1) that legal remedies inadequate; (2) the defendant misappropriated the plaintiff’s property, (3) the P’s property can be traced to D, and (4) D unjustly enriched.

20
Q

Tort remedies: equitable remedies: injunctions

A

First assess temporary/preliminary or permanent

  • temporary = before trial
  • permanent = after full trial on merits
21
Q

Tort remedies: equitable remedies: temporary/preliminary injunction

A

TRO and PI process:

**TRO: issued pending a hearing to determine whether PI should be granted. Same analysis for both.

Step 1:

  • establish irreparable injury (look to time-frame facts, can’t wait until trial) and
  • balance of hardships (P without it will face greater burden than D with it)

Step 2:

  • establish P’s likelihood of success on the merits
  • P posts a bond

TRO limited to 14 days, then another 14 days. Must try to give D notice, but can be done ex parte.

22
Q

Tort remedies: equitable remedies: permanent injunctive relief
4 steps

A

FOUR STEPS

Step 1: list legal remedies (replevin, ejectment, damages) and why inadequate:

  • REPLEVIN: sheriff cannot get chattel, D could post redelivery bond and then abscond with the chattel
  • EJECTMENT: sheriff may not be able to act
  • DAMAGES: 4 reasons:
    (a) too speculative
    (b) D is insolvent
    (c) irreparable injury
    (d) avoiding multiplicity of actions (look for prior history of litigation between P and D).

Step 2: Feasibility of enforcement

  • negative injunction: no enforcement problem
  • mandatory injunction: maybe problem if difficult to supervise (e.g., some act that relates to personal taste, an out of state action is required,)

Step 3: Balancing hardships

  • gross disparity between P and D hardships
  • but no balancing required IF D’s conduct was willful
  • consider public

Step 4: Defenses

  • Unclean hands (only if P’s bad conduct is related to the case)
  • Laches (clock starts when P learns of D’s act)
  • Impossibility
  • Free speech (if defamation)
23
Q

Tort remedies: civil versus criminal contempt for defying court order

A

Civil: meant to COERCE, a fine and D goes to jail until agrees to comply

Criminal: meant to PUNISH, stays for set amount of time

24
Q

Contract remedies: the types of LEGAL damages and analysis

A

Based on injury to plaintiff. Look at causation, foreseeability (at time of contract formation), certainty, and mitigation.

Type 1: Compensatory damages

  • Direct: ones that flow directly from harm: EXPECTATION damages.
  • Consequential: for related damages foreseeable at time of contract formation.

Type 2: Nominal damages: available

Type 3: Punitive: not available!

25
Q

Contract remedies: analysis for liquidated damages

A

Step 1: the damages are very difficult to ascertain at time of contract formation.

Step 2: the liquidated damages clause is a reasonable forecast and an excessive penalty.

If invalid, just go to compensatory damages.

26
Q

Contract remedies: when restitution available

A

When the contract is UNENFORCEABLE and P can recover what he gave to D.

When contract is BREACHED.

  • when P is breaching party: traditional view, no recovery; modern view, yes but not greater than K rate and offset by damages suffered by D
  • when P is NON-breaching party: can get money or property back
27
Q

Contract remedies: specific performance requirements

A

5 steps:
(1) contract is valid, with terms more certain and definite than those required for legal remedies

(2) plaintiff has performed, is ready and able to perform, or is excused from performing.
(3) legal remedy inadequate (damages)
(4) feasibility of enforcement
(5) defenses: equitable (unclean hands, laches, unconscionability at contract formation) and contract defenses (mistake, misrepresentation, SOF)

28
Q

Contract remedies: rescission

A

Where original contract is voidable and rescinded

General grounds for rescission: contract FORMATION: mistake, misrepresentation, coercion, undue influence, lack of capacity, consideration, illegality, etc.

Defenses: unclean hands, laches

29
Q

Contract remedies: reformation

A

Changes the written agreement to conform with parties’ original understanding

(1) is there a valid contract?
(2) are there grounds for reformation?
- MUTUAL mistake, or unilateral mistake where one party knows
(3) valid defenses? Unclean hands, laches

30
Q

Unclean hands doctrine

A

Available where plaintiff

  • has acted inequitably or unlawfully for the issue at hand, and
  • the defendant has been injured by that conduct.
31
Q

Purchase money resulting trust and potential defense

A

Two people supply consideration for a buyer to take title: the titleholder is deemed a trustee and part of the property is for the other person who helped give consideration as a beneficiary. Beneficiary entitled to pro rata share.

Imposed by court and hence no writing necessary

Potential defense: no trust was intended, like if the beneficiary’s contribution was a loan, payment of a debt, or gift. The trustee/title holder bears burden of showing such intent.

If both parties are close family members, a gift is presumed. Then beneficiary has burden of showing other such intent.

32
Q

Conversion legal remedy

A

P entitled to damages for the fair market value of the property at the time and place of conversion.

33
Q

Replevin for contract under UCC

A

Two way:

(1) if the goods were purchased for personal, family, or household purposes, or
(2) undelivered, identified goods if, after reasonable effort, the buyer is unable to secure adequate substitute goods.

Not available if not sure that the sheriff cannot seize the goods.

34
Q

Continuing nuisance remedies

A

Damages:

  • value of loss of use and enjoyment (includes profits), plus costs to abate nuisance, and award for discomfort
  • damages causation, foreseeable, certain, unavoidable
  • does not include future losses where the nuisance can be ended at any time

Permanent nuisance doctrine:

  • avoid multiple suits, recover for permanent diminution in value of property
  • requires proof of physical permanent damage

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