Remedies

Question 1

Categories of remedies tested

Answer 1

Tort

Contract

Question 2

Tort: List legal remedies

Answer 2

Compensatory
Nominal
Punitive

Question 3

Tort: List restitutionary remedies

Answer 3

Restitution
Replevin
Ejectment
Constructive Trusts and Equitable Liens

Question 4

Tort: List equitable remedies

Answer 4

Injunctive relief

• TRO
• Prelim injunction
• Permanent injunction

Question 5

Contract: List legal remedies

Answer 5

Compensatory (direct and consequential)
Incidental
Nominal
Punitive
Liquidated

Question 6

Contracts: List restitutionary remedies

Answer 6

Restitution

Question 7

Contracts: List equitable remedies

Answer 7

Specific performance
Rescission
Reformation

Question 8

Tort: Legal remedies - Compensatory damages (4 requirements)

Answer 8

4 reqs:

Causation – actual causation (but for test)

Foreseeability –proximate causation (injury must have been foreseeable at the time of the tortious act)

Certainty – damages can’t be too speculative.

Unavoidability – P must take reas steps to mitigate the damages.

Question 9

Tort: Legal remedies - Compensatory damages - Personal injury torts

Answer 9

Certainty rules:

*For past damages, look to any analogous historical evidence (e.g. similar prior business).

**For future damages, plaintiff must show they are more likely to happen than not.

***Economic losses (special damages) – basic certainty rules apply which means calculation must be w/ suff certainty.

**Non-economic losses (general damages) – basic certainty rules don’t apply here. Jury can award any amt it wishes subject to proper instructions.

Question 10

Tort: Legal remedies - Nominal damages

Answer 10

These are awarded where P has no actual injury.

They serve to establish or to vindicate the P’s rights.

Question 11

Tort: Legal remedies - Punitive damages

Answer 11

These are awarded to punish the D.

3 rules:
*P must have FIRST been awarded compensatory or nominal damages. Can also be attached to restitutionary damages.

**D’s type fault must be greater than neg.

***Awarded in an amt relatively proportionate to actual damages.
(Sup. Ct. has limited punitive damages to a single-digit multiple of actual damages, unless conduct is extreme)

Question 12

Tort: Restitutionary remedies - Restitutionary damages

Answer 12

Value of benefit to defendant. Sometimes occurs where there is no real injury to plaintiff.

However, often occurs where both compensatory and restitutionary are theoretically available.

Plaintiff cannot recover both compensatory and restitutionary, so discuss both, and give plaintiff the larger sum.

Punitive damages can be paired with restitution.

Question 13

Tort: Restitutionary remedies - Replevin damages (Test)

Answer 13

2 part test: Must establish that…

(1) P has a right to possession.
(2) There is a wrongful withholding by D.

Question 14

Tort: Restitutionary remedies - Replevin damages (Procedure)

Answer 14

(1) There must be some preliminary judicial hearing.
(2) P will have to post a bond.
(3) D can defeat an immediate recovery by posting a redelivery bond.
(4) P can recover the property before the trial.

Question 15

Tort: Restitutionary remedies - Ejectment damages (Test)

Answer 15

2 part test: Must establish that…

(1) P has a right to possession.
(2) D has wrongfully withheld.

***Ejectment is available only against D who has possession of prop. (ie, adverse possessor, holdover T at expiration of lease term).

No ejectment if defendant just crosses plaintiff’s property, because no actual possession.

Question 16

Tort: Restitutionary remedies - Constructive Trusts

Answer 16

Money damages inadequate because (1) property is unique or (2) defendant is insolvent.

Improperly acquired prop to which D has title. D serves as trustee and must return the prop to the P. Used when value of property went up

Question 17

Tort: Restitutionary remedies - Equitable Lien

Answer 17

Money damages inadequate because (1) property is unique or (2) defendant is insolvent.

Improperly acquired prop to which D has title. Prop will be subject to court-directed sale. The monies received go to the P. IF the proceeds of the sale are less than the FMV of the prop when it was taken, a deficiency judgment will issue for the diff and can be used against D’s other assets. Used when value of property went down.

Question 18

Tort: Restitutionary remedies - Constructive Trust & Equitable Lien - Rule

Answer 18

Tracing is allowed. Plaintiff can seek specific proceeds of sale. However, when defendant’s property cannot be traced solely to plaintiff’s property, only an equitable lien is available.

BFPs prevail over P. No equitable remedies against BFP.
**Plaintiff becomes a secured creditor with priority to the specific property or proceeds (but on equal footing for any deficiency judgment).

Question 19

Tort: Equitable remedies - Injunctive relief (TRO)

Answer 19

Issued for 10 days pending preliminary hearing. Test is identical to preliminary injunction, but may be ex parte provided good faith effort

Question 20

Tort: Equitable remedies - Injunctive relief (Prelim injunction)

Answer 20

Prior to full trial.

Must show:

(1) irreparable injury while waiting for trial,
(2) balance of hardships favors plaintiff, and
(3) likelihood of success. Court should impose bond.

Notice + hearing required.

Question 21

Tort: Equitable remedies - Injunctive relief (Permanent injunction)

Answer 21

After full trial on merits: awarded if

(1) inadequate legal remedy,
(2) enforcement is feasible,
(3) balance of hardships favors plaintiff, and
(4) no applicable defenses.

Question 22

Tort: Equitable remedies - Injunctive relief (Defenses)

Answer 22

• Unclean Hands: plaintiff committed related improper conduct.
• Laches: Delay cuts off right to relief when unreasonable and prejudicial.
• Impossibility
• Free Speech: if tort is defamation of privacy publication.

Question 23

Contract: Legal remedies - Compensatory Damages

Answer 23

Direct: flow inherently from the wrong. Expectation damages.

Consequential: available for related damages foreseeable at time of contract. Lost reputation can be recoverable if it was communicated to defendant and thus foreseeable.

Question 24

Contract: Legal remedies - Liquidated Damages

Answer 24

Allowed when

(1) damages are difficult to ascertain at time of contract and
(2) represent a reasonable forecast of damages. If amount excessive, void as penalty.

If liquidated are deemed valid, only gets liquidated, not actual, damages. If invalid, plaintiff gets actual damages.

Question 25

Contract: Legal remedies - Damages

Answer 25

Requires (1) actual causation, (2) foreseeability (at time of contract, (3) certainty, and (4) mitigation.

Question 26

True or False: The court can compel someone to pay incidental, nominal, or punitive damages as a result of a breach of contract.

Answer 26

False.

All allowable but punitive

Question 27

Contract: Restitution - Overall definition

Answer 27

Restitution is based on the theory that the D should not be unjustly enriched, usually after P has at least partially performed

Question 28

Contract: Restitution - If K is unenforceable

Answer 28

Plaintiff gets value of benefit conferred, even if greater than the unenforceable contract rate. Plaintiff can also get any property back if unique or defendant is insolvent

Question 29

Contract: Restitution - If K is breached

Answer 29

Non-Breaching Party: gets value of benefit conferred, even if greater than the breached contract rate. Plaintiff can also get any property back if unique or defendant is insolvent.

Breaching Party: traditional view is no recovery for already-rendered performance, but modern view permits recovery, but cannot be greater than contract rate and is reduced by any damages to non-breaching party

Question 30

Contract: Equitable remedies - Specific performance (5 reqs)

Answer 30

(1) Contract is valid, certain and definite.
(2) Plaintiff’s duties have been satisfied.

(3) Inadequate Legal Remedy
* Money damages might be inadequate because too speculative, defendant insolvent, irreparable injury, or avoiding a multiplicity of actions
* Real Property: All real property is unique, even if identical to others.
* **Special Seller’s Rule: seller of land can get specific performance even though all he is getting is money.
* **Personal Property: not unique unless one-of-a-kind, very rare, of personal significance to buyer, or circumstances make chattel unique. Uniqueness is tested at time of litigation, not at contract formation.

(4) Feasibility of enforcement
* Personal services contracts are not specifically enforceable, but covenants not to compete are enforceable if (1) services are unique and
(2) scope, geographic and duration, is reasonable

(5) No applicable defenses.
* Unclean hands, laches, unconscionability (at time of formation), or contract defenses of mistake, misrepresentation, or statute of frauds.

Question 31

Contract: Equitable remedies - Rescission

Answer 31

Original K is voidable and rescinded.

Must be (1) grounds for rescission (contract formation defenses showing lack of assent) and (2) no valid defenses

Question 32

Contract: Equitable remedies - Rescission (Examples of contract formation defenses showing lack of assent)

Answer 32

Mutual Mistake of Material Fact: rescission granted. If to collateral fact, rescission is denied.

Unilateral Mistake: rescission denied, unless non-mistaken party knows or should have known of mistake.

Misrepresentation: rescission granted if plaintiff actually relied.

Defenses: laches, unclean hands, but not plaintiff’s negligence.

Election of Remedies: if plaintiff sues for damages first, rescission is not allowed, but if sues for rescission first, damages are allowed. plaintiff can sue for both, but must elect one before judgment.

Availability of Restitution: if previously rendered performance but now entitled to rescission, can get restitution and rescission.

Question 33

Contract: Equitable remedies - Reformation

Answer 33

Changes written agmt to conform w/ the parties’ original understanding

(1) A valid contract – meeting of the minds

(2) Grounds for reformation
* Mutual mistake: Reformation granted.
* *Unilateral mistake: Reformation denied.
* **Misrepresentation: Reformation granted.

(3) No defenses: Unclean hands, laches