Remedies

Question 1

Rem: What are Tort Remedies, in descending order?

Answer 1

1. Legal Remedy: damages
2. Restitutionary Remedies: (a) Legal: (i) restitutionary, (ii) replevin, (iii) ejectment; (b) Equitable: (i) constructive trusts and equitable liens
3. Equitable Remedies: Injunctive Relief

Question 2

Rem: What’s nec’y to show for future damages?

Answer 2

damages are more likely than not to occur

Question 3

Rem: in personal injury, what do you have to show for economic losses? how about non-economic losses?

Answer 3

1. Econ: must show damages with sufficient certainty

2. Non-Econ - don’t have to do that for pain and suffering / disfigurement related damages

Question 4

Rem: what is form of judgment in a personal injury action?

Answer 4

A single lump sump payment, discounted to present value without taking inflation into account

Question 5

Rem: in tort, what must you show in order to receive punitive damages

Answer 5

1. Awarded compensatory or nominal damages
2. D’s fault must be greater than negligence
3. Punitive damages must be relatively proportionate to actual damages

Question 6

Rem: what is general theory of restitutionary damages?

Answer 6

D should not be unjustly enriched. Thus, they are based on the amount of the benefit to the D - not P’s harm.

Question 7

Rem: what is definition of replevin? What are requirements?

Answer 7

• P recover possession of specific personal property. Always coupled with damages
  1. P has right to possession
  2. There is a wrongful withholding by D

Question 8

Rem: In replevin, can P recover chattel before trial?

Answer 8

-P will have to post bond
-D can defeat by posting a redelivery bond
Note that SHERIFF, not P, recovers property

Question 9

Rem: what is ejectment? what are requirements?

Answer 9

P recovers possession of specific real property
1. P has a right to possession
2. wrongful withholding by D
Note that SHERIFF, not P, recovers property

Question 10

Rem: what are constructive trust and equitable lien?

Answer 10

Both imposed on improperly acquired property to which
CT: D serves as trustee and returns property to P.
EL: Property subject to immediate court-directed sale

Question 11

Rem: when impose constructive trusts / equitable liens?

Answer 11

1. Legal remedies are inadequate, because D is insolvent or the property is unique.
   Note BFPs prevail over P, and P prevails over unsecured creditors

Question 12

Rem: What are the defenses to equitable remedies?

Answer 12

1. Unclean hands
2. Laches (where delay is unreasonable and prejudicial to the D)
3. Impossibility
4. Free Speech

Question 13

Rem: What’s basic anlaytic framework for tort remedies?

Answer 13

1. Is P injured&raquo_space; compensatory damages?
2. Has D derived a benefit&raquo_space; unjust enrichment / restitution
3. Does P want property returned&raquo_space; replevin / ejectment
4. Is P still being harmed? Temp or Perm Injunction

Question 14

Rem: main contract remedy?

Answer 14

Damages - specifically expectation damages

Question 15

Rem: are consequential damages permitted in contract?

Answer 15

Yes, if related and foreseeable at the time of formation

Question 16

Rem: are liquidated damages permitted in contract?

Answer 16

Yes, if damages were difficult to calculate at time of contract formation, and they are a reasonable estimate of actual damages

Question 17

Rem: in contract, how do you show specific performance is justified?

Answer 17

1. contract is valid, certain and definite
2. P must have satisfied his contract conditions
3. inadequate legal remedy alternative
4. feasibility of enforcement
5. make sure no defenses - unclean hands, laches, unconscionability