Remedies Additional Cards

Question 1

Intentional Misrepresentation (Tort)

Answer 1

1) misrepresentation of past or present fact
2) scienter= D knew the statement was false or had no basis
3) D intended to induce P (or forseeable third party)’s reliance
4) causation - D relied
5) reasonable reliance
6) damages

Question 2

why might a legal remedy be inadequate?

Answer 2

(1) damages are too speculative
(2) the defendant is insolvent
(3) multiple suits are necessary, and
(4) the subject of the contract is unique.

Question 2

Negligent Misrepresentation (tort)

Answer 2

1) negligent misrepresentation by the defendant
2) in a business or professional capacity
3) breach - the defendant knew or should have known that the information was supplied to guide the particular plaintiff in his business transactions and D was negligent
4) Causation - actual reliance by P
5) resonable reliance
6) false info proximately cause P’s Damages

Question 2

Concealment (tort)

Answer 2

an affirmative act intended to keep another from learning of a fact) is equivalent to a misrepresentation

Question 2

Fraudulent Misrepresentation (contracts coa)

Answer 2

1) a party induces another to enter into a contract by
2) asserting information they know is untrue
3) with the intent to decieve
4) actural reliance

remedies:
* compensatory damages
* recission (but note the election of remedies issue)
* reformation

Question 2

no duty to disclose unless

Answer 2

• a fiduciary relationship exist
• it is necessary to correct an earlier mistake
• active concealment of a material fact occurs; OR
• person is selling real property and knows material facts that affect the value of the property (that the buyer is unaware of and cannot reasonably discover).

Question 3

innocent misrepresentation (contracts coa)

Answer 3

1) D honestly and in good faith made a material misrepresentation

A misrepresentation is material if:

(A) it would induce a reasonable person to agree, or
(B) the maker knows that for some special reason it is likely to induce the particular person to agree, even if a reasonable person would not.

2) P justifiably relied on the misrepresentation

Remedy→ contract is voidable (recission) by the innocent party

defenses
* unclean hands
* other requitable defenses to recission

Question 3

expectation damages

Answer 3

damages arise directly from the breach
attempt to put the non-breaching party in the same position it would have been in but for the breach.

To recover, the damages must be:
(1) foreseeable (proximate cause);
(2) unavoidable (duty to mitigate)
(3) certain (damages cannot be speculative); AND
(4) caused by the defendant (actual cause);

Question 4

reliance damages

Answer 4

the expenditures made by a party in reliance of a contract, and are an attempt to put the non-breaching party in the position it would have been if the contract never existed.

Reliance damages are available when:
(1) a plaintiff acted in reliance on the defendant’s agreement to perform under a contract; AND
(2) the plaintiff’s reliance was foreseeable.

If expectation damages are too speculative, the court may
award reliance damages instead.

Question 5

consequential damages

Answer 5

Consequential damages arise indirectly from the breach, and are awarded because of the injured party’s special
circumstances (e.g. lost profits).

(1) reasonably foreseeable to D at the time of contract formation and
2) reasonably certain

Question 6

incidental damages

Answer 6

Incidental damages are the reasonable costs incurred as a result of a breach of contract (i.e. costs of returning nonconforming goods or caring/storing non-conforming goods).

forseeability irrelevant

Question 7

restiution damages

Answer 7

Restitution (also referred to as unjust enrichment or quantum
meruit) is awarded to prevent unjust enrichment, and is available when one party confers a benefit onto another party (even if there is no enforceable contract).

P may recover the value of goods and services or, if P conveyed P a good, P may replvy the good
* Damages will be awarded based on the value of the benefit conferred upon the defendant.

A party CANNOT recover both expectation and restitution damages.

Question 8

Liquidated Damages

Answer 8

Liquidated damages will be enforced if: (1) the amount of damages is** difficult to estimate** at the time the contract was formed; AND
(2) the amount is **reasonable **to the actual damages suffered.

Question 9

UCC Buyer’s remedies and damages

Answer 9

Under the UCC, a buyer who (a) never received the goods – the seller repudiates or fails to make delivery, (b) rightfully rejected non-conforming goods, OR (c) justifiably revoked
acceptance of the goods MAY:
* (1) cancel the contract;
* (2) recover any amount paid (a refund)
* (3) recover either Cover Damages or Market Damages; AND
* 4) recover Incidental and Consequential damages.

If the buyer keeps the non-conforming goods, then the buyer
is entitled to Loss-in-Value Damages – measured by the difference between the value as promised and the value of the non-conforming goods.

Question 10

UCC Seller’s remedies

Answer 10

• withold delivery/ stop delivery of goods
• cancel contract
• recover cover damages
• recover markert damages
• recover lost profits (if a lost volume seller)
• replevy identified goods

+ incifential damages

Question 11

Seller’s Right to Replevy Identified Goods

Answer 11

an unpaid seller generally has no right to repossess (replevy) goods that he sent to a buyer. BUT… a seller of goods may repossess the goods he sent to a buyer if all:
1. the buyer wasinsolvent when it received the goods;
2. the seller makes a demand within 10 daysafter the buyer received the goods; AND
3. the goods were not sold to a BFP

HOWEVER, if a misrepresentation of solvency had been made to the seller in writing within three months prior to the delivery of the goods, the 10-day limitation to make a demand no longer
applies.

Question 12

Quasi Contract

Answer 12

(1) the plaintiff confers a benefit upon the defendant;
(2) the plaintiff had a reasonable expectation he would be compensated for the benefit;
(3) the defendant requested the benefit (express or implied)/ knew P expected compensation and
(4) the defendant would be unjustly enriched if not forced to compensate the plaintiff.

legal remedy

Question 13

legal contract remedies

Answer 13

1. expectation d
2. incidental d
3. consequential D
4. reliance d
5. restitution d
6. quasi contract

+ ucc provisions for buyers and sellers

Question 14

reformation

Answer 14

contract is changed to conform to party’s intent

1) valid contract must exist
2) grounds - misrepresentation, mutual mistake (intended same meaning) or unilateral mistake IF other party knew or had reason to know of the mistake
3) no equitable defenses apply

Parol evidence is admissible to prove the misrepresentation or mistake

Question 15

recission

Answer 15

treats the original contract as if it is cancled
1) grounds (issue with formation, fraud, misrepresentation)
2) no equitable defenses and P did not sue for damages under contract in prior action

Question 16

Specific Preformance

Answer 16

1) valid contract exists with clear and definite terms
2) P has satisfied all conditions under the contract, or is ready and willing to preform, or her preformance has been excused
3) legal remidies are inadequate
4) enforcment is feasible
5) no equitable or contractual defenses exist

Question 17

Torts: Available Legal Remedies

Answer 17

(1)compensatory damages (FUCC);
(2) consequential damages;
(3) nominal damages;
(4) punitive damages; AND
(5) restitution damages.

Question 18

compensatory damages

Answer 18

Put P in the same position she would have been in but for the injury

economic damages must be sufficently certain

non-econ damages dont have to be certain and

duty to mitigate

Question 19

when are punative damages available in a torts case?

Answer 19

(1) the plaintiff was awarded actual
damages (expectation or nominal damages);
2) punitive damages are proportional to the actual damages
(3) the defendant’s conduct was willful, malicious, or egregious (must be more than just negligent).

Question 20

damages for fraud tort

Answer 20

either:
1) actual losess suffered by P
2) benifit of the bargin - diff between what P recieved and what P was fraudulently led to believe p would recieve

Question 21

kinds of permanent injunctions

Answer 21

A restraining injunction prevents a party from doing something.

A mandatory injunction compels a party to do something.

Question 22

unclean hands

Answer 22

plaintiff is guilty of unethical, unlawful, or otherwise improper conduct related to the subject of the lawsuit.

Question 23

purchase money resulting trust

Answer 23

trust is implied by law (resulting trust) when one party provides consideration for the purchase of real property, but titles the property to another.

The party providing the consideration is the beneficiary of the trust (containing the real property), and the person holding title is the trustee.

Question 24

latches

Answer 24

equitable defense when
1) unreasonable delay by P in bringing the action
2) results in prejudice to D

Question 25

ejectment

Answer 25

(1) the defendant has actual possession of the property;
(2) the defendant is wrongfully withholding the property; AND
(3) the plaintiff has a right to possess the property.

Question 26

remedies to nuisance

Answer 26

Compensatory Damages - loss of use and enjoyment, costs of abatement, emotional distress,etc.

Most courts deny future damages.
* Some use the “permanent nuisance” doctrine (award of permanent diminution in value of land) to avoid multiplicity of suits, but there is a split of authority

Injunction
* Damages Inadequate b/c of the injury to land and the possibility of multiplicity of suits (continuing nuisance).
* Balancing of hardships

Some courts do not balance the hardships in nuisance cases because nuisance is usually intentional.

Courts that do balance generally weigh such factors as
* (1) relative uses of the land
* (2) whether the decree would require the defendant to shut down a costly enterprise
* (3) and injury to the public (loss of jobs, loss of a useful product,etc.)

NO Restitution

Question 27

When can P recover non-economic damages ?

Answer 27

Intentional torts -

IIED- actual damages are required but physical harm is not required

Negligence - must have personal injury to recover for emotional distress (cant recover for emotional distress alone unless NEID)
* ALSO cannot recover under negligence for emotional damages if the only actual damages are to property

defamation - have to have actual damage to reputation

invasion of privacty - Can get non-economic damages WITHOUT econ damages

Question 28

service can be made on a person by

Answer 28

1) personal service
2) leaving service at the person’s home with a person of suitable age and discretion
3) on a person’s designated agent
4) any method permitted by state law

Question 29

Courts will enforce covenant not to complete if

Answer 29

1) services are unique and
2) restriction is reasonable as to time and place and no broader than necessary to protect the employer

Question 30

equitable defenses include

Answer 30

• unclean hands
• latches
• unconcionability
• SOF
• Hardship- to prevail on a defense of hardship the defendant must show that there was inadequate consideration, marked inequity between the parties, and unfair advantage was exercised by the plaintiff (usually P had superior knowledge and took advantage of D)
• misrepresentation or mistake
• Subsequent sale to a bona fide purchaser
• Election of the remedy- if P sues for damages for breach first, P cannot then get recission because P has admitted the contract exists

Question 31

grounds for recission

Answer 31

• mutual mistake - mutal mistake materially affecting the basis of the bargain + P didnt assume the risk of mistake
• unilateral mistake - recission available if one party knew or should have known of other party’s mistake
• Misrepresentation (TORT)
• illegality/ impracticability/ impossibility of performance
• lack of capacity

Question 32

grounds for reformation

Answer 32

• mutual mistake - if intended same meaning
• unilateral mistake - if other party knew of the mistake - Needs to have been agreement, that was then put into writing, and a variance between original agreement and written agreement
• Misrepresentation- The rewriting will reflect the parties’ expressed intent

Question 33

defenses to reformation

Answer 33

• latches
• unclean hands
• sale to BFP

Not defenses:
* Parole evidence rule
* SOF
* negligence of P (ex: failure to read the instrument)

Question 34

What do you need to satisfy the SOF?

Answer 34

• you need some writing (could be a check or recipt)
• signed by D
• must specify quantity/ price/ material terms

Question 35

pure economic loss doctrine

Answer 35

“Pure economic loss” means a financial loss unaccompanied by personal injury or property damage—in other words, a loss of money and nothing else.

no recovery in for a purley economic loss in
* negligence case
* in strict liability cases
need property or physical harm to recover for economic loss

you can recover for a pure economic loss in contract cases
* so if pure econ loss products liability case, the strict lib and negligence cause of action would fail but the implied warrent of merchantability, fitness for a particular purpose, express warrenties, and contract misrepresentation claim (if made) would allow recovery

some states apply the pure econ loss doctrine to intentional torts some do not

Question 36

election of remedies

Answer 36

P cannot seek damages and then later seek recission because earlier claim for damages affirmed the contract

Question 37

constructive trust

Answer 37

compells a person holding title to wrongfully obtained title to convey it to its rightful owner.
* Under the doctrine of tracing, a P may impose a constructive trust on property the D wrongfully obtained using their property.
* P gets value of appreciation to prevent unjust enrichment to D
* most courts require that the legal remedy is inadequate

deficency action is NOT allowed with CT

Question 38

equitable lein

Answer 38

P must show that D misappropriated P’s property
Ds property can be traced to Ps property
Ds retention of Ps property would result in unjust enrichment
legal remedy is inadequate

think equitable lein if Ps property is used to improve Ds property (but not buy it)

if comingled bank account drops bellow the ammount of Ps claim, P can only claim the lowest intermediate amount unless she can show that the D intended subsequent funds to be restitution (but P could just get this money as damages anyway so idk why one would do this)

you can get a deficeny judgement on an equitable lien