Remedies Flashcards
Compensatory Damages
Intended to compensate plaintiff for legally recognized harm or injury attempts to place plaintiff in same position if had not been harmed by tort or breach of k
Compensatory Damages for Harm to Land (Trespass, Injury to Land, Nuisance)
Cost to Repair:
Or replace destroyed prop plus any recovery for loss in use
Loss in Value:
Diminution in value of prop
Limitations of Money Damages
Causation: but for
Foreseeable: at time of tort or k
Certainty: calculated w/ reasonable certainty
Unavoidable: duty to take reasonable steps to mitigate losses
Nominal Damages
Not suffered harm or loss Plaintiff may be awarded Trivial sum of money Have effect of declaratory judgment or Entitle plaintiff to recover litigation costs
Consequential Damages
Reasonably foreseeable damages
Related to tort or breach of k i.e. loss of profit
Use limitations
Punitive Damages
Serve to punish defendant
Who engages in serious misconduct
W/ improper state of mind
To deter others from similar conduct
Injunction
Court order directing person
To act or to refrain from acting
TRO
For short time, usually 10 days May be obtained ex parte W/out notice to defendant Preserve status quo until Prelim hearing can be held Cannot be appealed but not effective Until defendant receives notice
Elements of TRO
Emergency Likely to prevail on merits Plaintiff will suffer irreparable harm Balance of hardships In public interest
Prelim Injunction
Issued before or during trial that Generally effective until Final judgment Cannot be issued unless defendant Given notice of hearing and Opportunity to be heard
Elements of Prelim Injunction
Likely to prevail on merits
Plaintiff will suffer irreparable harm
Balance of hardships
In public interest
Permanent Injunction
Equitable remedy that Discretionary by court Carried out via in personam Meaning attaches to person Prohibitory or mandatory
Elements of Permanent Injunction
No adequate remedy at law Irreparable harm Balance of hardships Feasible Public interest
Defenses to Injunctions
Laches
Unclean Hands
Laches Injunction
Unreasonable bringing claim and
Prejudice to defendant if allowed
Unclean Hands Injunction
Plaintiff engaged in serious misconduct
Directly related to subject matter
Restitution
Disgorge defendant from Unjust enrichment when Derived benefit Intended to put party in same position As if tort or contract never occurred
Quasi-K
No legally binding k but
Defendant derived benefit and
Fairness requires payment to plaintiff
Compensatory Damages from Harm to Personal Property (Trespass to Chattels, Conversion)
Cost to Repair:
Or replace destroyed prop plus any recovery for loss in use
Loss in Value:
Diminution in value of prop
Replevin
Have plaintiff’s prop returned
May also recover damages for
Loss of use of prop
Elements of Constructive Trust/Equitable Lien
Defendant holds title to prop to be subject to trust or lien
Defendant’s retention of prop would unjustly enrich defendant, and
Legal remedies inadequate
Constructive Trust
Court imposes duty to convey specific prop to plaintiff if defendant would be unjustly enriched by retaining prop
Cannot seek additional satisfaction of value less than original amount
Equitable Lien
Results in forced sale of prop and plaintiff can seek additional money from defendant to satisfy claim
Compensatory Damages from Personal Injury (Intentional Torts, Negligence, Strict Liability)
Pain & Suffering
Medical Expenses
Lost Wages
Compensatory Damages Pain & Suffering
Pecuniary loss not required
Must be aware i.e. experience pain
Award of medical expenses does not automatically mandate pain & suffering
May recover loss of enjoyment of life and emotional distress damages always allowed as ancillary for injury arising to cause of action or action
Intentional and outrageous
Limits may be imposed for negligent conduct
Compensatory Damages Medical Expenses
Reasonable expenses necessarily incurred in treating injury or illness
Suffered as consequence of defendant’s action
Including diagnostic and future expenses
Receiving medical bill not proof of reasonableness
Compensatory Damages Lost Wages
Pretrial period from time of tort until trial and any subsequent period
If self-employed measured by profits of business and measurement of earning capacity linked to services to business
Future Earnings:
Age, education, employment history, and physical condition
Compensatory Damages from Financial Harm (Intentional Misrepresentation, Negligent Misrepresentation)
Loss of Bargain
Out of Pocket
Compensatory Damages Loss of Bargain
Difference between value of what promised and market value of what he received
Also cost of conforming to prop
Compensatory Damages Out of Pocket
Difference between amount paid and market value of what he received
CA generally limits amount
Reformation
Judicial rewriting of agreement or other document to reflect true intent
Usually stepping stone to claim damages or restitution
Cannot be used if meeting of minds does not exist (i.e. formation)
Ways to get Reformation
Mutual Mistake
Unilateral Mistake
Mutual Mistake Reformation
Writing may be reformed
Unilateral Mistake Reformation
Reformation turns on whether
Other party aware of mistake
If aware and induced mistake or does not attempt to fix it mistaken party may seek reform
If unaware of mistake reformation not allowed
Defenses to Reformation
Laches
Unclean Hands
BFP
BFP Defense to Reformation
Prevent reformation of writing
Judgment creditor or tee in bk
Not protected from reformation
Rescission
Invalidate k and restore parties to where they would be had bargain not been entered into
Must be k formation problem such as fraud, duress, mutual or unilateral mistake, or material misrepresentation
Defenses to Rescission
Laches
Unclean Hands
Promissory Estoppel
Compensatory Damages Land K
Difference between k price and FMV
Punitive for K
Only for bad faith or malice
Specific Performance
Form of mandatory injunction that ensures
Enforcement of otherwise valid
Contractual obligations to protect
Expectancy interest of non-breaching party
By requiring breaching party to perform
Under terms of k
Elements of Specific Performance
Valid k & terms definite & certain
No adequate remedy at law: Damages too speculative Not be able to cover or find replacement Land UCC: unique or other circum
Conditions must be satisfied
Mutuality of performance
Feasibility of enforcement, and
No defenses available
Specific Performance Abatement
If doesn’t own all land purported to sell, court may require specific performance but w/ reduction in price for amount of land not owned by seller
Defenses of Specific Performance
Laches
Unclean Hands
Underlying Defenses
Compensatory Damages Personal Property (Goods)
Buyer & Seller: difference between k price and FMV
Buyer Cover
Seller Lost Profits
Seller Action for Price
Buyer Cover
Difference between k price and substitute goods
Seller Lost Profits
Costs reasonably incurred and
Due credit for payments or
Proceeds for resale
Seller Action for Price
Goods were accepted or conforming goods were lost or damaged w/in commercially reasonable time after
Risk of loss passed to buyer or
Goods were identified to k if seller unable to resell at reasonable price, and
Buyer fails to pay
Incidental Damages
Reliance-type reasonable expenses Incurred including such things as Charges or expenses for stopping Delivery, or in return of goods Expenses associated w/ cover or resale
Compensatory Damages Building (Construction) Contracts
Loss of value or cost to
Complete/fix building defect
Loss of profit
Complete/fix building defect
Diminution in value due to defect or cost in fixing defect
Courts careful not to require cost to fix if economic waste
Loss of Profit Compensatory Damages Building (Construction) Contracts
Owner breaches and job incomplete, builder entitled to k price less any cost of completing project
Can be reduced by any materials builder may be able to use and any payments owner already made
Restitution for Building (Construction) Contracts
Not allowed for owner if any
Work done because cannot
Return contractual benefits received
Compensatory Damages Employment K
Salary or wages under the k
Specific Performance Employment K
Cannot require employee to work
Under specific performance b/c
Violates 13th amendment indentured servitude
Covenant to Compete Injunction
Must be reasonable in scope, and
Must be no broader than necessary
To protect employer
