Remedies Cards

Question 1

Compensatory Damages

Answer 1

Are meant to compensate the plaintiff for foreseeable losses and may be pecuniary or non-pecuniary. Must also be certain and unavoidable.

Question 2

Nominal Damages

Answer 2

Are those that are obtainable by a plaintiff when no harm was actually suffered.

Question 3

Punitive Damages

Answer 3

Are designed to punish a defendant for intentional conduct arising out of an intentional tort.

Question 4

Permanent Injunction

Answer 4

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.

Question 5

Permanent Injunction: Inadequate Remedy at Law

Answer 5

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.

Question 6

Permanent Injunction: Feasibility of Enforcement

Answer 6

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.

Question 7

Permanent Injunction: Balance of Hardships

Answer 7

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.

Question 8

Permanent Injunction: Defenses

Answer 8

Considers if the opposing party can raise any defenses that would refute the plaintiffs claim. Shown through unclean hands, laches, undue hardship, equitable estoppel.

Question 9

Permanent Injunction: Property Rights Exist

Answer 9

Traditionally, a protectible property right was needed. Modernly, property right is not necessary just as long as there is an interest.

Question 10

Incidental Damages

Answer 10

Are those that arise in dealing with the breach (inspection, appraisal, storage, shipping).

Question 11

Consequential Damages

Answer 11

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.

Question 12

Rescission

Answer 12

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.

Question 13

Reformation

Answer 13

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.

Question 14

Unilateral Mistake

Answer 14

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.

Question 14

Unilateral Mistake: Plaintiff was Mistaken

Answer 14

Plaintiff must show they were mistaken as to the material term of the K.

Question 14

Unilateral Mistake: Defendant Knew of Mistake

Answer 14

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.

Question 15

Fraud

Answer 15

A party commits fraud when, with scienter (intent), lies about a material term of a cotnract in order to induce reliance on that lie.

Question 15

Specific Performance

Answer 15

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.

Question 15

SP: Valid Contract

Answer 15

Plaintiff must show terms are more definite and certain that for a money damages case.

Question 15

SP: Inadequate Remedy

Answer 15

Money damages are low or speculative and would not adequately compensate plaintiff. Considers the uniqueness of the contract or item.

Question 15

SP: Conditions for Performance

Answer 15

Showing that plaintiff has performed, is ready & able to perform, or is excused from performance.

Question 15

SP: Defenses

Answer 15

Plaintiff must show that defendant has no valid defenses to prevent SP. Such defenses would be unclean hands, laches, or undue hardship.

Question 15

SP: Feasibility of Enforcement

Answer 15

Considers whether the order would require ongoing supervision and whether it is a subject matter that is complex to oversee.

Question 16

Temporary Restraining Order

Answer 16

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.

Question 17

TRO: Inadequate Remedy

Answer 17

Courts will consider if money damages are sufficient to compensate the P for their loss. Additionally, the court will consider if the measure of damages is uncertain or difficult to ascertain (uniqueness of item).

Question 18

TRO: Irreparable Harm

Answer 18

Court will consider if it is likely that the P will suffer irreparable harm if the remedy is not granted. Mere possibility of irreparable harm is insufficient.

Question 19

TRO: Balance of Hardship

Answer 19

The balance of hardships must favor granting the TRO, which means that the party seeking the TRO will be substantially harmed if the TRO is not granted during the period before a hearing can be had.

Question 20

TRO: Success on the Merits

Answer 20

P must show that there is a likelihood that they will succeed on the merits of the underlying claim. Courts will only review if there is evidence supporting P’s underlying claim.

Question 21

Preliminary Injunction

Answer 21

Follows the same scheme as a TRO to determine if court intervention should continue after a TRO is granted. A PI lasts anywhere from a few months to a few years. Is considered long term compared to a TRO. Also, requires notice to defendant and an opportunity to be heard, unlike a TRO.

Question 22

Restitution

Answer 22

Obligates the D to pay the P the reasonable value of a benefit unjustly obtained.

Question 23

Laches

Answer 23

The defense of laches applies when a plaintiff who seeks relief in equity has unreasonably delayed bringing their cause of action that would lead to prejudice to the defendant.

Question 24

Parol Evidence Rule

Answer 24

Bars introduction of evidence prior or contemporaneous oral or written statements that were not included in a fully integrated contract.

Question 25

Declaratory Relief

Answer 25

Is that relief provided by a court that does not change the rights of a party but merely delineates those rights. It is an appropriate way to handle the question of whether or not an ordinance is constitutional, and is especially appropriate in the context of a municipality because it does not run into any 11th amendment state sovereign immunity issues that might be implicated by a damages analysis.

Question 26

Unclean Hands

Answer 26

Is an equitable defense. Under this defense, a plaintiff who acted unfairly with respect to the current action will be barred from recovery because they too have “unclean hands.”

Question 27

Misrepresentation

Answer 27

Is a defense in which case the party seeks to either rescind the contract or argue that the contract never existed because there was no meeting of the minds. Applies where a party: 1) makes a misrep; 2) about a material fact; 3) with the intent to induce reliance; and 4) the other party actually and justifiably relied.

Question 28

Estoppel

Answer 28

Is an equitable defense where a defendant reasonably, foreseeably, and detrimentally relied on the plaintiffs statement that the plaintiff’s conduct is permissible, and where it is equitable to enforce that promise.

Question 29

Acquiescence

Answer 29

Is an equitable defense where the plaintiff has previously acquiesced to similar conduct on the part of the defendant for which the plaintiff is now seeking relief.

Question 30

Restitutionary Damages

Answer 30

Seek to prevent the defendant from being unjustly enriched.

Question 31

Constructive Trust/Equitable Lien

Answer 31

Is a court order that the defendant hold the property in trust for the benefit of the plaintiff and return the property to the plaintiff, along with any enhanced value. If the property is no longer available, the value of the property will be used instead.

Question 32

Ejectment

Answer 32

Allows a person in rightful possession of land to eject a trespasser who is present on his land. Only appropriate where the trespasser is still on the land.