Remedies Flashcards
Tort Remedies
-
Damages
- Compensatory
- Causal
- Forseeable
- Certain
- Unavoidable
- Nominal
- Punitive
- Compensatory
-
Legal Restitution
- Money
- Replevin
- Ejectment
-
Equitable restitution
- Constructive Trust
- Equitable lien
-
Injunction (equity)
- TRO
- Preliminary Injunction
- Permanent Injunction
Contract Remedies
-
Damages
-
Expectation
- Causal
- Forseeable
- Certain
- Unavoidable
-
Consequential
- Causal
- Forseeable
- Certain
- Unavoidable
- Incidental
- Reliance
- Liquidated
- Nominal
- No punitives
-
Expectation
-
Legal Restitution
- Money (Quasi-Contract)
- Replevin (Chattel)
- Ejectment
-
Equitable Remedies
- Recission
- Reformation
-
Injunctions
- TRO
- Preliminary Injunctions
- Specific Performance
-
Defense
- Unclean Hands
- Laches
Compensatory Damages
Compensatory damages are awarded to compensate the plaintiff for injury or loss. They are measured by the monetary value of the plaintiff’s harm.
Compensatory damages may be limited by:
- Causation: damages must be caused by the tortious act
- Forseeablility: forseeable by a reasonable person at the time of the tortious act
- Certainty: must be caluculated with certainty and NOT Speculative
- Unavaidable: Limits damages to those that could not reasonably have been avoided
Can be Special or General
Nominal Damages - Torts
Nominal damages are awarded where the plaintiff’s rights have been violated but no loss. Serve to vindicate the plaintiffs rights
Punitive Damages - Torts
Punitive Damages are awarded where the defendant has displayed willful, wanton, or malicious tortious conduct. They are measured by an appropriate punishment for defendant’s misconduct
Only awared if:
- actual damages are awarded
- Culpability of defendant is greater than negligence
- Proportional to actual damages
Legal Restitution
Legal restitution is appropriate where the defendant has derived a benefit or been unjustly enriched and it would be unfair to allow the defendant to keep that benefit without compensating the plaintiff or where the plaintiff wants his property back. Want to prevent unjust enrichment
-
Money is a legal remedy where the plaintiff is awarded the monetary value of the benefit recieved by the defendant
- measured by value of defendants gain
- a plaintiff can elect to recover compensatory damages or money restitution, but not both
-
Replevin allosw the recovery of chattel wrongfully takem from plaintiff’s rightful possession
- plaintiff can recieve damages for time he was deprived
- Ejectment is to recover specific real property that the plaintiff was wrongfully excluded from
Equitable Restitution
Equitable restitution is only available when money is not enough.
-
Constructive Trust is a legal fiction to compel the defendant to convey title to unjustly retained specific property to the plaintiff and restores the property to the plaintiff has been wrongfully acquired by the defendant
- Requires
- wrongful act
- defendant has legal title to convey
- inadequate legal remedy
- property is unique
- property can be traced
- priority of plaintiff over 3rd parties
- Requires
- Equitable Lien creates a security interest in property held by the defendant. Legal fiction implied by the courts where the property acts as collateral for teh money owed to the plaintiff
Temporary Restraining Orders (TRO)
**Ira Likes Inhaling Beer Down**
TRO is an equitable remedy in which the court orders a defedent to take or refrain from taking an action, as a means to preserve the status quo for a short time, typically 10 days, until there can be a full hearing.
A TRO will be granted where the plaintiff can establish:
- Irreparable harm if not granted
- likelihood of success on the merits
-
inadequate legal remedies
- money damages too speculative or inadequate
- insolvent defendatn
- replevin or ejectment available
- multiplicity of suits
- prospective tort
- property is unique
- real property is always unique
- personal property is not except if rare
- Balancing of the hardships must favor plaintiff
-
No defendses
- laches - unreasonable delay
- Unclean hands - unfair in dispute
- ineffective defenses
Preliminary Injunction
Preliminary Injunctions are designed to preserve the status quo pending a full trial. Harder to obtain. Same as TRO. But, can never be ex parte. purpose is to prevent irreparable harm during waiting time for the full tril on the merits
Permanent Injunction
**I Pray For Big Dollars**
Permanent injunctions is where a court orders one to perform an act ot to stop performing an act after holding a full trial on the merits. A permanent Injunction requires:
- Inadequate Legal remedies
- Property interest (not in CA and modernly need an invasion of personal rights)
- Feasibility of enforcement
- balancing of hardships
- No defenses
Legal Damages for Contracts
-
Expectation damages in contract compensate plaintiff for the value of the benefit expected to recieve from the contract. Expectation damages may be limited if damages are not forseeable, damages are not a result of the contract breach, if damages are uncertain, and if plaintiff has a duty to take reasonable steps to mitigate his losses and cover.
- Further, liquidated damages clauses that are valid will control and be the only measure of damages allowed for breach of the contract
- Consequential Damages seek to compensate for damages that are a direct and forseeable consequence of the contract not being performed and are found in addition to expectation damages. Must be forseeable at the time of contracting and can be limited by causation, forseeablility, certainty, and if unavaoidable
- Incidental Damages include those cost reasonably incurred when other party breached (e.g. storage, etc)
- Reliance Damages seek to put the plaintiff in the same position - awared in place of expectation damages when damages are difficult to calculate such as loss profits for a new business
- Liquidated Damages
- Nominal Damages when contract breached but no loss
- Punitive damages are not awarded in contract, unless the misconduct rises to the level of an independent tort (as fraud)
Legal Restitution for Contracts
- Quasi-contract pplies where there is no legally binding contract, but the defendat has derived a benefit and fairness requires payment to the plaintiff. It is measured by the value of the benefit unjustly retained.
- Arise 3 ways:
- no attempt to contract (emergency services)
- unenforceable contract (illegal, SOF failure)
- Breached contract
- Arise 3 ways:
- Replevin
- Ejectment
Contract Equitable Remedies
-
Recission permits a party to invalidate a contract and restores the parties to the position each would have been in if the bargain had not been entered into
- no meeting of the minds since there was a formation problem resulting from fraud, duress, etc
- available to the wronged party only
- laches and unclean hands are applicable
-
Reformation permits a contract to be rewritten by the court to reflect the parties true agreement when there was a meeting of the minds contract as written does not reflect the paries agreement because of an error
- proper grounds include fraud, material misrepresentation, or mutual mistake
- only for wronged party
- laches and unclean hands are applicable
Specific Performance (Like Permant Injunction but for Contracts only)
Camille
Contracted
Illegal
Mutations
For
Department of Defense
Specific performance is a permanent injunctions in contract where the court orders the defendant to perform on the contract as promised. There needs to be
- a valid contract that is definit and certain
- contract conditions imposed on the plaintiff are satisfied
- Inadequate Legal remedies
- Mutuality of performance meaning both parties to the contract must be eligible to have their performance under the contract ordered by the court
-
Feasibility of enforcement
- negetice injunctions are easier
- affirmative injunctions are more difficult (personal service conracts are a no go)
- jurisdictional issues make things ahard if court would need to supervise events out of jurisdiction or assert control over nonparties
- No defenses
