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Undeleted > Remedies > Flashcards

Remedies Flashcards

1
Q

Compensatory Damages

A

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

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2
Q

Compensatory Damages for Harm to Land (Trespass, Injury to Land, Nuisance)

A

Cost to Repair:
Or replace destroyed prop plus any recovery for loss in use
Loss in Value:
Diminution in value of prop

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3
Q

Limitations of Money Damages

A

Causation: but for
Foreseeable: at time of tort or k
Certainty: calculated w/ reasonable certainty
Unavoidable: duty to take reasonable steps to mitigate losses

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4
Q

Nominal Damages

A 
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
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5
Q

Consequential Damages

A

Reasonably foreseeable damages
Related to tort or breach of k i.e. loss of profit
Use limitations

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6
Q

Punitive Damages

A

Serve to punish defendant
Who engages in serious misconduct
W/ improper state of mind
To deter others from similar conduct

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7
Q

Injunction

A

Court order directing person

To act or to refrain from acting

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8
Q

TRO

A 
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
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9
Q

Elements of TRO

A 
Emergency
Likely to prevail on merits
Plaintiff will suffer irreparable harm
Balance of hardships
In public interest
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10
Q

Prelim Injunction

A 
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
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11
Q

Elements of Prelim Injunction

A

Likely to prevail on merits
Plaintiff will suffer irreparable harm
Balance of hardships
In public interest

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12
Q

Permanent Injunction

A 
Equitable remedy that 
Discretionary by court
Carried out via in personam
Meaning attaches to person
Prohibitory or mandatory
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13
Q

Elements of Permanent Injunction

A 
No adequate remedy at law
Irreparable harm
Balance of hardships
Feasible
Public interest
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14
Q

Defenses to Injunctions

A

Laches

Unclean Hands

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15
Q

Laches Injunction

A

Unreasonable bringing claim and

Prejudice to defendant if allowed

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16
Q

Unclean Hands Injunction

A

Plaintiff engaged in serious misconduct

Directly related to subject matter

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17
Q

Restitution

A 
Disgorge defendant from 
Unjust enrichment when
Derived benefit
Intended to put party in same position 
As if tort or contract never occurred
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18
Q

Quasi-K

A

No legally binding k but
Defendant derived benefit and
Fairness requires payment to plaintiff

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19
Q

Compensatory Damages from Harm to Personal Property (Trespass to Chattels, Conversion)

A

Cost to Repair:
Or replace destroyed prop plus any recovery for loss in use
Loss in Value:
Diminution in value of prop

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20
Q

Replevin

A

Have plaintiff’s prop returned
May also recover damages for
Loss of use of prop

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21
Q

Elements of Constructive Trust/Equitable Lien

A

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

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22
Q

Constructive Trust

A

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

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23
Q

Equitable Lien

A

Results in forced sale of prop and plaintiff can seek additional money from defendant to satisfy claim

24
Q

Compensatory Damages from Personal Injury (Intentional Torts, Negligence, Strict Liability)

A

Pain & Suffering
Medical Expenses
Lost Wages

25
Q

Compensatory Damages Pain & Suffering

A

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

26
Q

Compensatory Damages Medical Expenses

A

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

27
Q

Compensatory Damages Lost Wages

A

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

28
Q

Compensatory Damages from Financial Harm (Intentional Misrepresentation, Negligent Misrepresentation)

A

Loss of Bargain

Out of Pocket

29
Q

Compensatory Damages Loss of Bargain

A

Difference between value of what promised and market value of what he received
Also cost of conforming to prop

30
Q

Compensatory Damages Out of Pocket

A

Difference between amount paid and market value of what he received
CA generally limits amount

31
Q

Reformation

A

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)

32
Q

Ways to get Reformation

A

Mutual Mistake

Unilateral Mistake

33
Q

Mutual Mistake Reformation

A

Writing may be reformed

34
Q

Unilateral Mistake Reformation

A

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

35
Q

Defenses to Reformation

A

Laches
Unclean Hands
BFP

36
Q

BFP Defense to Reformation

A

Prevent reformation of writing
Judgment creditor or tee in bk
Not protected from reformation

37
Q

Rescission

A

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

38
Q

Defenses to Rescission

A

Laches
Unclean Hands
Promissory Estoppel

39
Q

Compensatory Damages Land K

A

Difference between k price and FMV

40
Q

Punitive for K

A

Only for bad faith or malice

41
Q

Specific Performance

A

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

42
Q

Elements of Specific Performance

A

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

43
Q

Specific Performance Abatement

A

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

44
Q

Defenses of Specific Performance

A

Laches
Unclean Hands
Underlying Defenses

45
Q

Compensatory Damages Personal Property (Goods)

A

Buyer & Seller: difference between k price and FMV
Buyer Cover
Seller Lost Profits
Seller Action for Price

46
Q

Buyer Cover

A

Difference between k price and substitute goods

47
Q

Seller Lost Profits

A

Costs reasonably incurred and
Due credit for payments or
Proceeds for resale

48
Q

Seller Action for Price

A

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

49
Q

Incidental Damages

A 
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
50
Q

Compensatory Damages Building (Construction) Contracts

A

Loss of value or cost to
Complete/fix building defect
Loss of profit

51
Q

Complete/fix building defect

A

Diminution in value due to defect or cost in fixing defect

Courts careful not to require cost to fix if economic waste

52
Q

Loss of Profit Compensatory Damages Building (Construction) Contracts

A

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

53
Q

Restitution for Building (Construction) Contracts

A

Not allowed for owner if any
Work done because cannot
Return contractual benefits received

54
Q

Compensatory Damages Employment K

A

Salary or wages under the k

55
Q

Specific Performance Employment K

A

Cannot require employee to work
Under specific performance b/c
Violates 13th amendment indentured servitude

56
Q

Covenant to Compete Injunction

A

Must be reasonable in scope, and
Must be no broader than necessary
To protect employer

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