Remedies Attack Cards Flashcards
TLR: Compensatory Damages
The goal of compensatory damages is to compensate the plaintiff for harm done.
Conversion: if the defendant commits conversion, the plaintiff will recover the fair market value of the property at the time and place of conversion.
Damages must not be speculative. The plaintiff must take reasonable steps to mitigate damages.
TLR: Nominal Damages
Nominal damages are awarded when the plaintiff did not suffer an actual injury (usually in an intentional tort case)
TLR: Punitive Damages
The goal of punitive damages is to punish the defendant. Punitive damages are not awarded in negligence cases.
TLR: Restitutionary Damages
The goal of restitutionary damages is to avoid unjust enrichment of the defendant. This means the plaintiff recovers the value of the benefit conferred on the defendant.
Replevin
This is when the plaintiff seeks to recover the specific personal property of the defendant. It is a fancy way to say give it back.
Constructive Trust
The court will order the defendant to serve as trustee and return the property to the plaintiff if the defendant improperly acquired title to the property (using the plaintiff’s funds) and retention would result in unjust enrichment.
P will want this if the property has increased in value.
Equitable Lien
If a defendant improperly has title to the property, the court may order a sale with proceeds going to the plaintiff. This is the appropriate remedy (rather than a constructive trust) if the plaintiff cannot trace his property to the defendant’s property.
P will want this if there is a deficiency because he can get the entire amount due but no increase.
Temporary Restraining Order (TRO)
A TRO is issued before a preliminary injunction. This is an emergency order imposed to maintain the status quo until a hearing for a preliminary injunction can be held. The moving party must show he will suffer irreparable injury before a preliminary injunction can be obtained and a likelihood that he will prevail on the merits of his underlying claim. A TRO lasts a limited amount of time (14 days in fed ct).
Preliminary Injunction
A preliminary injunction is granted before a full trial on the merits takes place. There are four factors to consider (HELP).
H: harm the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued.
E: evaluate risk if injunction is not granted: the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by granting injunctive relief.
L: likelihood of prevailing: the likelihood that the party seeking the injunction will prevail on the merits.
P: public interest: the harm to the public interest if the injunction were issued.
A plaintiff may also seek a permanent injunction after a full trial. The court will examine whether enforcement is feasible and balance equities.
CLR: Compensatory Damages
A party will recover expectation damages that arise from the breach. This is the loss of value of the breaching party’s performance + incidental damages + consequential costs - any expenses saved as a result of the breach.
Incidental damages: damages that are related to avoiding loss from the breach (trying to find a replacement service)
Consequential damages: damages that a reasonable party would have foreseen at the time of entry into the contract.
Must be caused by breach, damages must be foreseeable, not speculative, and P has duty to mitigate.
Restitution
Restitution means the plaintiff recovers the value of the benefit conferred on the defendant and awarded on an unjust enrichment theory.
Cannot recover restitution and expectation/compensatory damages, a party must choose one.
Specific Performance
Specific performance is generally granted for land or unique goods. Instead of getting money damages, the buyer will get what he contracted for.
Plaintiff must first show (1) valid contract, (2) all conditions have been met and plaintiff has performed or is ready to perform under the contract, (3) legal remedy is inadequate, (4) it is feasible for a court to enter a decree for specific performance, and (5) the defendant does not have any defenses (laches/unclean hands).
Personal property is generally not unique (so damages are usually granted when personal property is at stake) however, specific performance is appropriate if the goods are one of a kind, rare, have sentimental value, or the circumstances otherwise make specific performance appropriate.
Real property is always considered unique so specific performance is generally an appropriate remedy for breach of contract involving the sale of land (but plaintiff may also recover damages - the difference between the market value of the land and the contract price).
Personal service contracts specific performance is generally not granted unless a court is enforcing a covenant not to compete.
Defenses: special defenses raised in contract claims are unconscionability at the time the contract was made, SOF, and mistake, misrepresentation, or impossibility. Equitable defenses are available as well laches and unclean hands.
Rescission
Rescission is the unmaking of a contract. Recission is granted in mutual mistake cases, unilateral mistake cases, or misrepresentation cases.
Reformation
Reformation is revising a contract to reflect the true agreement. This occurs when two or more parties entered into an agreement that is reduced to writing, and the written contract does not match what the parties understood to be the agreement. This can occur because of a scrivener’s error or misrepresentation or mistake.
PER does not apply to reformation.
Equitable Defenses
Laches is the plaintiff unreasonably delays in pursuing a claim, and prejudice to the defendant results.
Unclean Hands is the plaintiff is acting in bad faith with respect to the same transaction and the defendant has been injured by the plaintiff’s wrongful conduct.
Waiver is the plaintiff voluntarily relinquished a right.
Equitable estoppel is the plaintiff said or did something to make the defendant believe a fact existed and the defendant relied and was prejudiced by it.
