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
2
Q
Compensatory Damages 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
3
Q
Limits on 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
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
5
Q
Consequential Damages
A
Reasonably foreseeable damages
Related to tort or breach of k i.e. loss of profit
Use limitations
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
7
Q
Injunction
A
Court order directing person
To act or to refrain from acting
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
9
Q
Elements of TRO
A
Emergency Likely to prevail on merits Plaintiff will suffer irreparable harm Balance of hardships In public interest
10
Q
Preliminary 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
11
Q
Elements of Preliminary Injunction
A
Likely to prevail on merits
Plaintiff will suffer irreparable harm
Balance of hardships
In public interest
12
Q
Permanent Injunction
A
Equitable remedy that Discretionary by court Carried out via in personam Meaning attaches to person Prohibitory or mandatory
13
Q
Elements of Permanent Injunction
A
No adequate remedy at law Irreparable harm Balance of hardships Feasible Public interest
14
Q
Defenses of Injunctions
A
Laches
Unclean Hands
15
Q
Laches Defenses of Injunctions
A
Unreasonable bringing claim and
Prejudice to defendant if allowed
16
Q
Unclean Hands Defenses of Injunctions
A
Plaintiff engaged in serious misconduct
Directly related to subject matter
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
18
Q
Quasi-K
A
No legally binding k but
Defendant derived benefit and
Fairness requires payment to plaintiff
19
Q
Compensatory Damages Harm to Personal Property (Trespass to Chattels, Conversion)
A
Cost to Repair
Loss in Value
20
Q
Replevin
A
Have plaintiff’s prop returned
May also recover damages for
Loss of use of prop
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
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
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 Personal Injury (Intentional Torts, Negligence, Strict Liability)
A
Pain & Suffering
Medical Expenses
Lost Wages
25
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
26
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
27
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
```
28
Compensatory Damages Financial Harm (Intentional Misrepresentation, Negligent Misrepresentation)
Loss of Bargain
| Out of Pocket
29
Compensatory Damages Loss of Bargain
Difference between value of
What promised and market value of
What he received
Also cost of conforming to prop
30
Compensatory Damages Out of Pocket
Difference between amount paid and market value of
What he received
CA generally limits amount
31
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)
```
32
Ways to Get Reformation
Mutual Mistake
| Unilateral Mistake
33
Reformation Mutual Mistake
Writing may be reformed
34
Reformation Unilateral Mistake
```
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
Defenses to Reformation
Laches
Unclean Hands
BFP
36
BFP Defense to Reformation
Prevent reformation of writing
Judgment creditor or tee in bk
Not protected from reformation
37
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
```
38
Defenses to Rescission
Laches
Unclean Hands
Promissory Estoppel
39
Compensatory Damages Land Contracts
Difference between k price and FMV
40
Punitive Damages K
Only for bad faith or malice
41
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
42
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
43
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
```
44
Defenses to Specific Performance
Laches
Unclean Hands
Underlying Defenses
45
Compensatory Damages Personal Property (Goods)
Difference between k price and FMV
Buyer Cover
Seller Lost Profits
Seller Action for Price
46
Buyer Cover
Difference between k price and substitute goods
47
Seller Lost Profits
Costs reasonably incurred and
Due credit for payments or
Proceeds for resale
48
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
49
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
```
50
Compensatory Damages Building (Construction) Contracts
Loss of value or cost to complete/fix building defect
| Loss of profit
51
Loss of value or cost to 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
52
Loss of profit
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
Compensatory Damages Employment Contracts
Salary or wages under the k
54
Specific Performance Employment Contracts
Cannot require employee to work
Under specific performance b/c
Violates 13th amendment indentured servitude
55
Covenant Not to Compete Remedies
Must be reasonable in scope, and
Must be no broader than necessary
To protect employer
