Remedies

Question 1

Compensatory Damages (T$)

Answer 1

Compensatory damages are based on P’s injury and places P back in a position she would have been in had the injury not occurred. Damages must have been foreseeable, unavoidable, certain and caused by D’s conduct.

Question 2

Nominal Damages (T$)

Answer 2

Nominal damages are awarded where P has no actual injury. The serve to establish or vindicate P’s rights.

Question 3

Punitive Damages (T$)

Answer 3

Punitive Damages are awarded to punish D for malicious conduct. P must first have been awarded compensatory, nominal, or restitutionary damages. Punitive damages are awarded in an amount relatively proportionate to actual damages.

Question 4

Restitution Damages

Answer 4

Restitutionary damages are based on the benefit conferred on D and are calculated based on the value of Ds unjust enrichment.

Question 5

Replevin

Answer 5

Replevin is a Restitutionary remedy that allows P to recover personal property on the theory that D should not be unjustly enriched. P has right to possession and D is wrongfully withholding.

Question 6

Ejectment

Answer 6

Ejectment is a Restitutionary remedy that allows P to recover real property for a D who has possession of the property. P has right to possession that is wrongfully held by D.

Question 7

Constructive Trust

Answer 7

A constructive trust is a equitable remedy that is implied in law and imposed by equity courts when the retention of property by D wrongdoer would result in unjust enrichment. The court will treat the property as if it were held in trust by D for P. If the property value after the taking goes up, use constructive trust.

Question 8

Equitable Lien

Answer 8

An equitable lien is an equitable charge on property imposed by law to prevent unjust enrichment. To impose equitable lien on Ds property to secure a debt, it must be shown that the wrong doer misappropriated the Ps property under circumstances creating a debt or obligation to pay, the Ps property can be traced to property held by D and retention of the property would result in unjust enrichment to D. Property would be subject to immediate court-directed sale and proceeds go to P. If proceeds are less than FMV of property when wrongfully acquired, deficiency judgment will be issued for the difference and can be used against Ds other assets.

Question 9

Tracing (restitution)

Answer 9

P can follow the property to whatever form it takes, as long as the trust can be identified.

Question 10

Commingled Account

Answer 10

Where withdrawals from a commingled account cause the balance to sink below the amount of the injured party’s claim, the V may obtain a constructive trust/equitable lien on to the extent of the lowest intermediate balance of the account.

Question 11

Temporary Restraining Order

Answer 11

A TRO is issued pending a hearing to determine whether preliminary injunction should be granted. P must also show that he will suffer irreparable injury and a likely success on the merits. A TRO can be issued ex parte without notice to the D. If there is opportunity to give D notice and opportunity to appear to contest the injunction, then P must make a good faith effort to do so.

Question 12

Preliminary Injunction

Answer 12

The granting or denial of a preliminary injunction is not based on a final determination of the merits of the case, but is a provisional remedy designed to maintain the status quo pending trial. P is entitled to a PI if he can demonstrate irreparable injury and a likelihood of success on the merits. If a PI is sought, the court should impose a bond requirement on P if the injunction injured D and P does not prevail.

Question 13

Maintaining the status Quo (PreI)

Answer 13

P will have to show that the granting of the preliminary injunction is necessary to maintain the status quo.

Question 14

Irreparable Injury (PreI)

Answer 14

P must show that he will suffer irreparable injury if the preliminary injunction is not granted, and this harm may outweigh the harm that D would suffer the PI is granted.

Question 15

Likelihood of success (PreI)

Answer 15

P must show that it is probable he will succeed on the merits of his claim.

Question 16

Permanent Injunction

Answer 16

A permanent injunction is issued after a trial on the merits and this relief is available when there is adequate legal remedies, enforcement is feasible, balancing of hardships, and no defenses bar relief.

Question 17

Inadequate Legal Remedies

Answer 17

Legal remedy is inadequate if money damages will not afford relief (too speculative or D is insolvent) or where the wrong is continuous (threat of future harm) and P would have to bring many suits to recover all the damages.

Question 18

Feasibility of Enforcement

Answer 18

The court must be able to enforce the K and supervise problems that arise. The court’s contempt power may be used to help enforce its decree.

Question 19

Balancing of Hardships

Answer 19

The court must balance between Ps benefits and Ds hardship if relief is granted. If harm to P does not outweigh harm to D or public, injunction will be denied and P may only be entitled to money damages. Defenses: unclean hands, laches, impossibility, free speech (if issue is defamation or privacy torts), and any defenses for nuisance/trespass

Question 20

Expectation Damages (K$)

Answer 20

K damages generally involve compensatory damages, which must be certain and definite, foreseeable, unavoidable, and caused by the breach. The standard measure of damages is expectancy, which puts the parties in the same economic position as if the K had been performed (benefit of the bargain).

Question 21

Reliance Damages (K$)

Answer 21

When expectation damages are too speculative, P may elect to recover based on a reliance measure, which puts P in a position she would have been in had the K never been formed. This is designed to compensate P based on the value of her performance.

Question 22

Consequential Damages (K$)

Answer 22

Consequential damages are damages that are certain and definite, foreseeable, unavoidable, and caused by the breach. These will usually include damage to reputation as a result of the breach. Under the UCC, only a buyer can recover consequential damages.

Question 23

Incidental Damages (K$)

Answer 23

Under the UCC, compensatory damages may also include incidental damages. Which include expenses reasonably incurred by the buyer in inspection, receipt, transportation, care and custody of goods rightfully rejected due to seller’s breach. This also includes expenses incurred by the seller in storing, shipping, returning, and reselling the goods as a result of buyer’s breach.

Question 24

Liquidated Damages

Answer 24

Liquidated damages are agreed upon contract provisions that stipulate specified damages upon the occurrence of a breach. Valid only if damages are difficult to ascertain at the time of the K and the provision is a reasonable estimate of actual damages. Unreasonable LD are deemed penalties and are unenforceable.

Question 25

Duty to Mitigate

Answer 25

All parties to a K must mitigate damages and a party may not recover for avoidable damages. D bears the burden of showing Ps failure to mitigate.

Question 26

Restitution

Answer 26

Restitution is an equitable remedy based on the value of a benefit wrongfully conferred. It is designed to disgorge the unjust enrichment of a party. Restitution can provide a remedy when there has been a breach of K, when the K is unenforceable, or when no contractual relationship exists at all between the parties.

Question 27

Specific performance

Answer 27

SP is an equitable remedy requiring D to perform under the K. In order for the court to grant SP, P must show that the terms of the K are certain and definite, K conditions of a P have been satisfied, there is an inadequate legal remedy (land or unique goods), feasibility of enforcement, and no valid defenses exist (i.e. laches, unclean hands, sale to BFP, misrepresentation).

Question 28

Certain and definite terms (SP)

Answer 28

P must show that a valid K exists, with certain & definite terms.

Question 29

K conditions of P have been satisfied (SP)

Answer 29

A P will not be able to obtain SP unless she has fulfilled all of her conditions under the K - already performed, is ready & able to perform, or is excused from performing.

Question 30

Inadequate Legal Remedy (SP)

Answer 30

Money damages are inadequate if the things bargained for is unique. Generally, personal property is not considered unique, with the exception of very rare, one of a kind chattel.

Question 31

Defenses to Specific Performance

Answer 31

Unclean hands, laches, BFP, misrepresentation, mistake, SOF

Question 32

Unclean Hands

Answer 32

A D who is guilty of misconduct concerning the transaction will be barred from obtaining SP.

Question 33

Laches

Answer 33

Laches is an equitable defense that bars recovery after a specific period of time. The period of laches begins to run when the P learns of the injury. If a party has unreasonably delayed asserting his claim, resulting in prejudice to D, he will be denied recovery.

Question 34

Sale to BFP

Answer 34

Equitable rights are cut off by transfer of legal title to a BFP. A BFP is one who purchases for value and takes title without notice of the wrongdoing.

Question 35

Misrepresentation (k)

Answer 35

At the formation of the K, if there is a false assertation of material fact by a party (whether intentionally or innocently) that includes the K, the misrepresented party may rescind or cancel the K.

Question 36

Mistake (k)

Answer 36

A court will not enforce K if there is a mutual mistake of fact. Also, a court will not rescind a K due to a unilateral mistake of fact unless the other party knew or should have known of the mistake at the time of K formation.

Question 37

Rescission

Answer 37

A Restitutionary remedy whereby a party who is fraudulently induced by the other party into entering a K may rescind the K. Grounds for rescission include mutual mistake, unilateral mistake but other party knew or should have known of the mistake, and misrepresentation (whether innocent or intentional). Analyze defenses: unclean hands & laches

Question 38

Reformation

Answer 38

Reformation is an equitable remedy by which a court modifies or alters a K to make it conform to the party’s previous understanding or agreement. There must be an original K free from any defect that makes the K voidable. Grounds for reformation include mutual mistake, unilateral mistake but other party knew or should have known, innocent or fraudulent misrepresentation. Analyze defenses: laches, unclean hands, adversely affect rights of subsequent BFP.