Remedies Cards Flashcards
Compensatory Damages
Are meant to compensate the plaintiff for foreseeable losses and may be pecuniary or non-pecuniary. Must also be certain and unavoidable.
Nominal Damages
Are those that are obtainable by a plaintiff when no harm was actually suffered.
Punitive Damages
Are designed to punish a defendant for intentional conduct arising out of an intentional tort.
Permanent Injunction
An injunction is an equitable remedy. A permanent injunction will last for the amount of time imposed by the court. The elements are: 1) inadequate remedy at law, 2) the injunction is feasible,3) property rights exist, 4) the balancing of hardships weighs in favor of granting the injunction, and 5) no defenses apply.
Permanent Injunction: Inadequate Remedy at Law
Considers if money damages are inadequate to rectify the situation or would be too speculative. If money damages are not sufficient, there is an inadequate remedy.
Permanent Injunction: Feasibility of Enforcement
Turns on whether the injunction will be mandatory or negative. A mandatory injunction orders the defendant to perform an affirmative act. A Negative injunction enjoins the defendant from engaging in a specified activity.
Permanent Injunction: Balance of Hardships
In effectuating the balance test, the court will balance the interests of the plaintiff in obtaining the injunction against the interests of the defendant and the public. If the burden to the defendant and the public outweighs the benefit to the plaintiff, then damages will be deemed an adequate remedy and no need for an injunction.
Permanent Injunction: Defenses
Considers if the opposing party can raise any defenses that would refute the plaintiffs claim. Shown through unclean hands, laches, undue hardship, equitable estoppel.
Permanent Injunction: Property Rights Exist
Traditionally, a protectible property right was needed. Modernly, property right is not necessary just as long as there is an interest.
Incidental Damages
Are those that arise in dealing with the breach (inspection, appraisal, storage, shipping).
Consequential Damages
Will be awarded if both parties were aware of the lost profits that would be incurred as a result of a breach and that those losses were foreseeable.
Rescission
Restores parties to a point before formation by voiding the K. Must show there was mistake, misrepresentation, undue influence, or duress. Must also show that there are no valid defenses such as laches or unclean hands.
Reformation
Is an equitable remedy as to a unilateral mistake. When a party successfully seeks reformation, the court will re-write a contract in order to conform to the parties’ original intent.
Unilateral Mistake
To persuade the court to reform a contract based on a unilateral mistake, the plaintiff must show: 1) that the plaintiff was mistaken about the terms of the contract; 2) that the mistake went to a material term that was a basic assumption of the contract; 3) that the defendant-party knew of the plaintiff’s mistake; and 4) the defendant failed to correct the mistake or even took advantage of the mistake.
Unilateral Mistake: Plaintiff was Mistaken
Plaintiff must show they were mistaken as to the material term of the K.
Unilateral Mistake: Defendant Knew of Mistake
There must be some indication that the defendant knew there was a material mistake to a term of the K and took advantage of such mistake.
Fraud
A party commits fraud when, with scienter (intent), lies about a material term of a cotnract in order to induce reliance on that lie.
Specific Performance
To demonstrate entitlement to specific performance, plaintiff must show: 1) that there was a valid contract, 2) that legal damages would not suffice to remedy any breach of the contract, 3) that the conditions triggering the defendant’s performance have been met, 4) that there are no defenses to formation, and 5) that the court can reasonably enforce the order of specific performance.
SP: Valid Contract
Plaintiff must show terms are more definite and certain that for a money damages case.
SP: Inadequate Remedy
Money damages are low or speculative and would not adequately compensate plaintiff. Considers the uniqueness of the contract or item.
SP: Conditions for Performance
Showing that plaintiff has performed, is ready & able to perform, or is excused from performance.
SP: Defenses
Plaintiff must show that defendant has no valid defenses to prevent SP. Such defenses would be unclean hands, laches, or undue hardship.
SP: Feasibility of Enforcement
Considers whether the order would require ongoing supervision and whether it is a subject matter that is complex to oversee.
Temporary Restraining Order
Is an order granted that preserves the status quo until a preliminary hearing on the matter can be heard. It is designed to deal with emergency situations and usually lasts between 10-14 days depending on the jurisdiction. Is used when money damages are not adequate to repair injury suffered by P. Must show: 1) inadequate remedy at law, 2) irreparable harm, 3) balance of hardships favoring TRO, and 4) Party seeking TRO likely to prevail.
