Remedies Flashcards
Anticipatory Repudiation
Anticipatory repudiation occurs when a promisor, prior to the time set for performance of the promise, indicates that he will not perform when the time comes. If there is an executory bilateral contract between the parties, the nonrepudiating party can treat the repudiation as a total breach and sue immediately.
Specific Performance
The purpose of specific performance is to give the injured party the benefit of actual performance, rather than its equivalent in money damages. To obtain an order for specific performance, (i) there must be a contract with definite and certain terms between the parties, (ii) the plaintiff must already have performed or be ready to perform, (iii) the legal remedy must be inadequate, (iv) it must be feasible to enforce the contract, and (v) the defendant must not have any defenses.
Replevin
Replevin is a legal restitutionary remedy, the purpose of which is to recover specific chattels wrongly taken or detained by the defendant. Under the UCC, a buyer who has made at least a partial payment may replevy goods from the seller if they are purchased for personal use or if the buyer is unable to secure adequate substitute goods so long as the goods are identifiable.
Rescission
Under the contract remedy of rescission, a plaintiff can wipe out the contract and restore the status quo. Both fraudulent misrepresentation and innocent misrepresentation are grounds for rescission if the misrepresentation occurred at or before the time the contract was entered. If the defendant makes a fraudulent misrepresentation, the plaintiff has the option of either rescinding the contract and seeking restitution for any unfair benefit the defendant received, or affirming the contract and seeking damages. Where the defendant innocently made the representation, the contract can only be rescinded.
Under election of remedies, the general rule is that the remedy of damages for fraud and that of rescission are inconsistent, since any election of damages in effect affirms the contract. The plaintiff should first seek rescission, and then damages.
Purchase Money Resulting Trust
A court may impose a purchase money resulting trust after an acquisition of real property in which one person takes legal title in the property and another person supplies consideration before or at the same time the other person takes title. The person who obtained legal title is deemed the trustee of the resulting trust, and the person who furnished consideration is deemed the beneficiary. A title holder may rebut the presumption of trust by submitting evidence that no trust was intended and that the money used as consideration was a gift.
Constructive Trust
A constructive trust is a remedy implied in law and imposed by equity courts when the retention of property by the defendant-wrongdoer would result in unjust enrichment. Under a construction trust, the property is held by the defendant in trust for the plaintiff, with his sole obligation being to convey the property to the plaintiff. The plaintiff can use tracing to impose a constructive trust on proceeds of the wrongfully acquired property.
Equitable Lien
A court may impose an equitable lien when the defendant’s retention of property or its proceeds would result in his unjust enrichment. The doctrine of tracing applies to equitable liens as well as constructive trusts. With an equitable lien, the plaintiff is not entitled to any increase over the value of the property initially misappropriated. Nevertheless, the plaintiff can recover any deficiency from the defendant.
Mistake
When both parties entering into a contract were mistaken about existing facts relating to the agreement, the contract may be avoided by the adversely affected party if the mistake concerns a basic assumption on which the contract is made, the mistake has a material effect on the agreed-upon exchange, and the party seeking avoidance did not assume the risk of the mistake.
Conversion
To establish conversion, the plaintiff must prove (i) an act by the defendant that interferes with the plaintiff’s right of possession in the chattel that is serious enough to warrant that the defendant pay the full value of the chattel, (ii) intent to perform an act bringing about the interference, and (iii) causation.
Bailment
In a bailment relationship, (i) the bailor transfers physical possession of an item of personal property to the bailee without transferring title and (ii) the bailee is obligated to return the item to the bailor in accordance with their agreement. If a bailment is for the mutual benefit of the parties, the bailee must exercise ordinary due care with the bailor’s property. If the bailee breaches this duty, the bailor must show causation (actual and proximate).
