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 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
Limits on 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
Preliminary 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 Preliminary 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 of Injunctions
Laches
Unclean Hands
Laches Defenses of Injunctions
Unreasonable bringing claim and
Prejudice to defendant if allowed
Unclean Hands Defenses of Injunctions
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 Harm to Personal Property (Trespass to Chattels, Conversion)
Cost to Repair
Loss in Value
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 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 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
Reformation Mutual Mistake
Writing may be reformed
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
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 Contracts
Difference between k price and FMV
Punitive Damages 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 to Specific Performance
Laches
Unclean Hands
Underlying Defenses
Compensatory Damages Personal Property (Goods)
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
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
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
Compensatory Damages Employment Contracts
Salary or wages under the k
Specific Performance Employment Contracts
Cannot require employee to work
Under specific performance b/c
Violates 13th amendment indentured servitude
Covenant Not to Compete Remedies
Must be reasonable in scope, and
Must be no broader than necessary
To protect employer
