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REMEDIES > REMEDIES > Flashcards

REMEDIES Flashcards

1
Q

Split Discussion by Cause of Action, Then Remedy

A

Cause of action:

  • contract
  • tort
  • property
  • quasi-contract/unjust enrichment/restitution

Legal remedy:

  • legal
  • equitable
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2
Q

Contract Legal Remedies: Damages

A

Types of compensatory damages:

  • benefit of the bargain (expectancy)
  • consequential damages
  • reliance damages
  • incidental damages
  • liquidated damages
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3
Q

Benefit of the Bargain (expectancy) Damages

A

Seek to put the parties in the position they would have been in had the contract been performed

Focus on the economic deal itself - the costs to produce or sell, the profit, and the purchase or sales price

Market price less contract price

Under UCC, “cover” - the cost of replacing the goods

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4
Q

Lost Volume Seller Damages

A

Lost volume seller - someone who can sell as many of an item as they can find buyers

If buyer repudiates purchase, damage is the lost profit on the item - even if that particular item is resold to another buyer

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5
Q

Fourt-Part analysis for Damages

A

Contracts damages must be:

  • causal (damages would not occur “but for” the breach)
  • foreseeable at time of contract
  • certain
  • unavoidable *duty to mitigate)

Not necessary to do four-part analysis on expectancy (benefit of the bargain) damages

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6
Q

Consequential Damages

A

Logically flow from a breach of the contract other than the cost of sale, profit and purchase price

Four-part analysis regarding damages must be undertaken

If damage is lost future profits beyond profit from immediate transaction, even though benefit of the bargain, use 4 part analysis if profit is based on projections

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7
Q

Reliance Damages

A

Seek to put the party in the position they would have been in had the contract not been formed in the first place

Usually out of pocket costs incurred by a party before the contract is actually performed

Only available if the benefit of the bargain - expectancy - damages are too speculative. Otherwise, such damages are possible expectancy damages

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8
Q

Incidental Damages

A

Expenses reasonably incurred in shipping, care and custody of the goods and, for the seller, in re-selling the goods after a breach

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9
Q

Liquidated Damages

A

Parties stipulated - to amount

Upheld if damages will be extremely difficult to ascertain and the stipulated amount is a reasonable forecast of the damages

Look at the proportionality of the stipulated amount to the possible level of damages

  • re purchase contracts - no more than 6-10%
  • service contracts - approximation of lost profit

Otherwise, void as a penalty

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10
Q

Contract Damages - Strategies

A

If damages are benefit of the bargain, just calculate difference between contract price and market price or cover

If damages are lost future profits, consequential damages, or reliance damages, apply four factor analysis

If contract was never performed or expectancy damages are too speculative, discuss reliance damages

Liquidated damages - extremely difficult to ascertain/ reasonable forecast / proportional

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11
Q

Contract - Equitable Remedies

A

Specific performance - enforcement of the contract after a breach (elements applicable to enforcement of both common law and UCC contracts)

  1. there is a valid and enforceable contract, with definite and certain terms
  2. the party has met all the conditions required or performance of the conditions is excused
  3. the legal remedy is inadequate, and
  4. the remedy is feasible (for court to supervise)
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12
Q

Contract - Provisional Remedies (TRO and PI)

A

Solely in Aid of specific performance or replevin

To preserve subject of contract from imminent sale or transfer

Subject of contract must be unique

TRO
- elements for preliminary injunction plus immediacy of harm

Preliminary Injunction

  • irreparable injury
  • likelihood of success
  • balance of hardships favors the injunction
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13
Q

ER - Rescission - Undoing of Contract

A

Mistake - must be as to material fact (basis of bargain)

  • mutual
  • unilateral
  • majority: non-mistaken party knows of mistake
  • modern - balance harms to each party

Misrepresentation

  • False representation / omission of material fact
  • D knew (intentional); should have known (negligent) was false OR innocently made (innocent misrepresentation)
  • P reasonablly relied to detriment
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14
Q

ER - Reformation

A 
Requires a valid prior agreement
Grounds
1. mutual mistake (scrivener's error)
2. unilateral mistake, and
3. fraud
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15
Q

ER - Declaratory Relief

A

Rights and obligations of parties to a contract

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16
Q

Torts - Damages

A

Include:

  • general damages foreseeable from the injury (pain and suffering)
  • special damages that could not have been foreseen from the mere occurrence of the wrong (medical expenses; lost wages)
  • punitive damages

Tort damages must be:
- causal (“but for”), foreseeable (as of the time of breach of duty - proximate cause concept, but relaxed for intentional torts), certain, and unavoidable

17
Q

Torts - Punitive Damages

A

Awarded for willful and wanton conduct amounting to fraud, oppression, or malice

Subject to due process issues

  • the reprehensibility of the defendant’s conduct
  • the disparity between the actual or potential harm suffered and the punitive award; and
  • the difference between the punitive award and the criminal or civil penalties authorized for comparable misconduct
18
Q

Torts - ER - TRO/PI

A

Provisional Remedies - TRO/PI

  • Irreparable harm (uniqueness/threat of permanent loss)
  • reasonable likelihood of success on the merits - fulfills elements of underlying cause of action
  • balance of the hardships favor injunction (no balancing if intentional act)
  • Plus for TRO: irreparable harm is imminent
19
Q

Torts - ER - Permanent Injunction

A

Legal remedy is inadequate

  • irreparable harm (uniqueness of good/object of contract/threat of permanent loss)
  • money damages inadequate
  • speculative damages
  • multiplicity of suits

Feasibility of enforcement - ease of court enforcement ( negative v. mandatory injunction )

Balance of the hardships favors injunction - only if encroachment / nuisance case; no balancing if conduct is intentional

20
Q

Property Remedies

A

Injunction for Trespass/Nuisance

Waste:

Voluntary waste: remedies - injunction; damages for diminution in value / cost of repair ; treble damages

Permissive waste: remedies - damages for diminution in value / cost of repair

Ameliorative waste: remedies - if anything, cost of restoration

21
Q

Unjust Enrichment / Quasi - Contract

A

Legal theory to support restitution in cases of wrongful retention of benefits and property due to:

illegal or unenforceable contract; OR
wrongful retention or obtaining of property (conversion/fraud)

22
Q

Unjust Enrichment - Legal Remedies

A

Replevin

Ejectment

23
Q

Unjust Enrichment - Legal Remedies: Replevin

A

Common law replevin - Property wrongfully taken or detained
- recover prejudgment possession through claim and delivery ; based on immediate right to possession/title

UCC Replevin:

  1. type 1 (useful with anticipatory repudiation)
    - goods specifically identified in contract
    - plaintiff unable to cover (obtain equivalent goods)
    - replevin granted conditioned on payment for goods
  2. Type 2
    - buyer made payment, and
    - seller failed to deliver, and
    - seller insolvent within 10 days OR
    - goods for personal, family, or household purpose
24
Q

Unjust Enrichment - Legal Remedies: Ejectment

A

Remedy to restore possession of real property

Basis for unlawful detainer (eviction of tenant wrongfully holding over)

If not brought within limitations period, gives rise to adverse possession

25
Q

Unjust enrichment - Equitable Remedies

A

Constructive Trust - usually applies to acquisition of FULL TITLE ONLY

  • retention of property by wrong-doer would constitute an unjust enrichment
  • the sole trust obligation is to convey title to the property to the plaintiff
  • plaintiff gets benefit of increase / appreciation in value
  • does NOT apply where wrongdoer commingles money or improves own property or transfers title
  • UNLESS wrongdoer obtains through theft or embezzlement, in which case plaintiff can elect constructive trust, or equitable lien, whichever gives plaintiff more
26
Q

Unjust Enrichment - Equitable Lien

A

Equitable Lien

  • commingled funds, improved property, funds from sale of title
  • plaintiff not entitled to appreciation
  • if commingled funds, plaintiff gets lowest intermediate balance
  • BUT if wrongful act (theft/embezzlement) and funds are used to acquire title, again a constructive trust is appropriate if value of title increased
27
Q

Unjust enrichment - Resulting Trust

A

Failure of express trust (lack of beneficiary) - resulting trust in Settlor or Settlor’s estate, OR

Person who supplied some or all of consideration does not hold title (Purchase Money Resulting Trust)

Supply of consideration but lack of title creates presumption of resulting trust

Presumption rebutted by evidence of:

  • Gift
  • Loan
  • Payment of debt
28
Q

Equitable Defenses - Laches

A

Equitable equivalent to a statute of limitations

  • unreasonable delay
  • prejudice/harm to defendant - loss of evidence
29
Q

Equitable Defenses - Unclean hands

A

With respect to subject matter of suit

30
Q

Equitable Defenses - Sale to BFP

A

Cuts off replevin against wrongdoer but not BFP if BFP is true owner

Cuts off constructive trust / equitable lien against BFP

Does NOT cut off actual damages for conversion by true owner against BFP

31
Q

Equitable Defenses - Injunctions not available

A

Breach of contract (except to aid replevin or specific performance involving unique subject of contract)

Criminal prosecution

Criminal misconduct

REMEDIES (1 decks)

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