Remedies

Question 1

What legal remedies are available for a breach of contract?

Answer 1

1) Expectation damages 2) Reliance damages
3) Consequential damages 4) Incidental damages
5) Restitution damages
* Punitive damages are generally NOT available.

Priority: HIGH

Question 2

What are Expectation Damages? When are they available?

Answer 2

Damages that arise directly from the breach, and are an attempt to put the non-breaching party in the same position it would have been in but for the breach.
To recover, damages must be:
1) Caused by the defendant; 
2) Foreseeable;
3) Certain;AND
4) Unavoidable.

Priority: HIGH

Question 3

What are Reliance Damages? When are they available?

Answer 3

The expenditures made by a party in reliance of the contract and are an attempt to put the non-breaching party in the position it would have been if the contract never existed.
Available when:
1) Plaintiff acted in reliance on the defendant’s agreement to perform; AND
2) The plaintiff’s reliance was foreseeable.

Priority: HIGH

Question 4

What are Consequential Damages? When are they recoverable?

Answer 4

Damages that arise indirectly from the breach and are awarded because of the injured party’s special circumstances.
To recover, damages MUST be:
1) Reasonably foreseeable at the time of contract formation;
2) Arise from the plaintiff’s special circumstances that the
defendant knew; AND
3) Certain (not speculative).

Priority: HIGH

Question 5

What are Incidental Damages?

Answer 5

The reasonable costs incurred as a result of a breach of contract (i.e. costs of returning non-conforming goods).

Priority: HIGH

Question 6

When is Restitution awarded?

Answer 6

It is awarded to prevent unjust enrichment, and is available when one party confers a benefit onto another party.
Damages = based on value of benefit conferred.

Priority: HIGH

Question 7

When will Liquidated Damages be enforced?

Answer 7

If:

1) The amount of damages is difficult to estimate at the time the contract was formed; AND
2) The amount is reasonable to the actual damages suffered.

Priority: Low

Question 8

What are the damages for breach of a land sale contract?

Answer 8

1) Any amount paid;
2) The difference between the fair market value at the time
of the breach and the contract price;
3) Expenses incurred in investigating title and preparing
necessary paperwork;
4) Expenses incurred in preparing to occupy the land;
5) Possible consequential damages; AND
6) Interest.

Priority: Medium

Question 9

UCC Seller’s Remedies / Damages

Under the UCC, what remedies does a seller have if a buyer breaches a contract for the sale of goods?

Answer 9

a) Withhold delivery of the goods; b) Cancel;
c) Recover cover damages;
d) Recover market damages;
e) Recover lost profits if the seller is a lost volume seller; f) Stop delivery of the goods when he discovers buyer is
insolvent;
g) Stop delivery of a truckload when buyer breaches; OR h) Replevy identified goods.

Priority: Low

Question 10

UCC Buyer’s Damages Cover Damages
vs.
Market Damages
vs. Loss-In-Value Damages

Answer 10

Cover: Difference between the contract price and the price of substitute goods (used if buyer covered in good faith).

Market: Difference between the market price and contract price (used if the buyer did not cover in good faith or at all).

Loss-In-Value: Difference between the value as promised and the value of the non-conforming goods (used if the buyer keeps the non-conforming goods).

Priority: Medium

Question 11

When will a quasi-contract be created?

Answer 11

If:
1) The plaintiff confers a benefit upon the defendant;
2) The plaintiff had a reasonable expectation he would
be compensated for the benefit;
3) The defendant requested the benefit; AND
4) The defendant would be unjustly enriched (if not
forced to compensate the plaintiff).

Priority: Medium

Question 12

How does Reformation allow a contract to be changed, and when is it available?

Answer 12

It allows a contract to be changed to conform to the parties’ original intent.
It is available if a valid contract exists, BUT there was a misrepresentation OR mutual mistake of material fact.

*Will not be reformed if a valid equitable defense exists.

Priority: HIGH

Question 13

When is a Rescission of a contract an available remedy?

Answer 13

It is available when there was a problem with the formation of a contract and treats the original contract as cancelled.

BUT, a contract will NOT be rescinded if:

a) A valid equitable defense applies; OR
b) The plaintiff sued for damages under the contract in a prior action.

Priority: HIGH

Question 14

When is Specific Performance available?

Answer 14

When:

1) A valid contract exists with clear and definite terms;
2) The plaintiff has performed under the contract or is ready, willing, and able to perform;
3) Legal remedies are inadequate;
4) Enforcement is feasible for the court; AND
5) No valid equitable or contractual defenses exist.

Priority: HIGH

Question 15

What are the available legal remedies in tort actions?

Answer 15

1) Compensatory damages
2) Nominal damages
3) Punitive damages
4) Restitution damages

Priority: Medium

Question 16

What are Compensatory Damages?

Answer 16

Damages that are an attempt to put the injured party in the same position it would have been in but for the injury.

To recover, damages must be:

1) Caused by the defendant;
2) Foreseeable;
3) Certain;AND
4) Unavoidable.

Priority: Medium

Question 17

When are Nominal Damages available in a tort action?

Answer 17

When the plaintiff has NOT suffered an actual injury, but still wants to establish his rights.

*They are not available where either damages or actual injury is an element to a cause of action.

Priority: Medium

Question 18

When are Punitive Damages available in a tort action?

Answer 18

When the plaintiff has NOT suffered an actual injury, but still wants to establish his rights.

*They are not available where either damages or actual injury is an element to a cause of action.

Priority: Medium

Question 19

When are Punitive Damages available in a tort action?

Answer 19

They are awarded to punish the defendant, and are available if:
1) The plaintiff was awarded actual damages;
2) The punitive damages are proportional to the actual
damages; AND
3) The defendant’s conduct was willful, malicious, or
egregious (more than negligent). Priority: Medium

Question 20

What are the damages awarded for Fraud?

Answer 20

Either:

a) The actual losses suffered (difference in what the plaintiff gave and received); OR
b) The benefit of the bargain (difference in what he received and what he was fraudulently led to believe he would receive).

Priority: Medium

Question 21

What are the damages for conversion of property?

Answer 21

Either:
a) Possession of the property; OR
b) The fair market value of the property at the time
of the conversion.

Priority: Medium

Question 22

What are damages for trespass to land?

Answer 22

Either:

a) The diminution in value of the property; OR
b) The cost to repair the property.

Priority: Low

Question 23

What is a Temporary Restraining Order (TRO)? When is it available?

Answer 23

An emergency remedy used to maintain the status quo pending the outcome of a hearing or application.

It is ONLY available when the plaintiff will suffer immediate and irreparable harm.

Priority: Medium

Question 24

What must party show to receive a TRO?

Answer 24

1) A likely threat of irreparable harm;
2) A likelihood of success on the merits;
3) Balancing of hardships (in favor of the moving
party) ; AND
4) Posting of a bond.

Priority: Medium

Question 25

What must be shown to receive an ex-parte TRO?

Answer 25

The application must:

1) Provide specific facts in sworn statement that clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; AND

2) Certify in writing any efforts made to give notice to the adverse party or why notice should not be required.
Priority: Medium

Question 26

What must the moving party show for a Preliminary Injunction?

Answer 26

1) A likelihood of success on the merits;
2) A likely threat of irreparable harm;
3) Balancing of hardships (in favor of the moving
party);
4) An injunction is in the public interest;
5) Notice to the adverse party; AND
6) Security (post a bond) in an amount the court
deems proper. Priority: HIGH

Question 27

What must be shown for a Permanent Injunction?

Answer 27

1) Inadequate legal remedies;
2) A protectable personal or property interest;
3) Feasibility of enforcement;
4) A balancing of hardships (to both parties);AND
5) No valid equitable defenses.

Priority: Medium

Question 28

When is an Equitable Lien available?

Answer 28

If a defendant:

1) Wrongfully acquired title to property; AND
2) Would be unjustly enriched if allowed to keep the
property. (The court will force the sale of the property and the plaintiff will receive the proceeds).

Priority: Medium

Question 29

When is a Constructive Trust (used to prevent unjust enrichment resulting from wrongful conduct) available as a remedy?

Answer 29

If the defendant:
1) Wrongfully acquired title to property; AND
2) Would be unjustly enriched if allowed to keep the
property.

*The court will require the defendant to hold the property as a trustee, and then return it to the plaintiff.

Question 30

When is replevin (allows recovery of specific personal property) available as a remedy?

Answer 30

If:

1) The defendant is wrongfully withholding personal property;
2) That the plaintiff has a right to possess.

*A plaintiff may recover property before trial IF there is a preliminary judicial hearing and the plaintiff posts bond.

Priority: Low

Question 31

When is Ejectment (recovery of specific real property) available as a remedy?

Answer 31

If:

1) The defendant has actual possession of the property;
2) The defendant is wrongfully withholding the property; AND
3) The plaintiff has a right to possess the property

Priority: Medium

Question 32

When does a Purchase Money Resulting Trust arise?

Answer 32

When one party provides consideration for the purchase of real property BUT titles it to another.

The party providing the consideration is the beneficiary of the trust; the person holding title is the trustee.

Priority: Low

Question 33

When does a Pro Rata Resulting Trust arise?

Answer 33

When one party provides only partial consideration for the purchase of real property AND the property is titled in another party’s name.

The party providing the consideration is the beneficiary of the trust; the person holding title is the trustee.

Priority: Low

Question 34

When does the defense of Laches bar recovery?

Answer 34

When:

1) There is an unreasonable delay between when the plaintiff learned of the injury/breach and when the action was brought; AND
2) The defendant is prejudiced by the delay.

Priority: HIGH

Question 35

When does the doctrine of Unclean Hands bar recovery?

Answer 35

When a plaintiff is guilty of unethical, unlawful, or otherwise improper conduct related to the subject of the lawsuit.

Priority: High

Question 36

Can a plaintiff recover damages as a result of a breach that could have been avoided?

Answer 36

NO.

Accordingly, a party must take reasonable steps to
mitigate their losses.

Priority: HIGH

Question 37

What must a plaintiff show to state a prima facie case for Intentional Misrepresentation?

Answer 37

1) Misrepresentation of a material fact by the defendant;
2) The defendant knew that the statement was false;
3) Intent of the defendant to induce the plaintiff
4) Actual and reasonable reliance by the plaintiff;
AND
5) Damages.

Priority: HIGH

Question 38

What must a plaintiff show to state a prima facie case for Negligent Misrepresentation?

Answer 38

1) A misrepresentation by the defendant;
2) Supplied for guidance of others in a business transaction; 3) The defendant knew (or should have) that the
information was supplied to guide plaintiff in business
transactions;
4) The defendant was negligent in obtaining/communicating
the false information;
5) Actual and reasonable reliance by the plaintiff; AND
6) The false information proximately caused the plaintiff’s
damages.

Priority: HIGH