Remedies Essay Flashcards
Injunction
An injunction is a court order directing a person to act or refrain from acting. It can be used as a prejudgment or postjudgment remedy.
Available for torts and contracts actions
Temporary Restraining Order (TRO)
- TRO: Injunction issued for a short period (federal 14 day max, CA 15 day max) of time that does not required notice to the defendant or an opportunity to be heard.
- issued to maintain the status quo until a preliminary injunction hearing is held
Available for torts and contracts actions
Preliminary Injunction
Preliminary Injunction: issued before or duing a trial and is effective until the final judgment of the court. D must be given notice and an opportunity to be heard.
* P will suffer irreparable harm if injunction not issued (monetary damages would be inadequate, real property and unique items of personal property)
* plaintiff’s **hardship outweights ** the hardship to defendants and third parties
* likelihood of success on the merits (aka discuss underlying causes of action)
* enforceability: must be feasible for the court to enforce the injunction (prefer not to enforce if require extensive involvement or continued supervision)
Available for torts and contracts actions
Permanent Injunction
After the plaintiff has won the case, a permanent injunction is granted to prevent the violation of plaintiff’s rights or restore to the plaintiff rights that have been violated. P must show:
* irreparable harm if the injunction is not granted and
* the hardships if the injunction is not issued will be significantly greater than the hardships to the defendant and third parties if the injunction is issued
Available for torts and contracts actions
Specific Performance
Specific performance (contracts only): the non-breaching party asks a court to order the breaking party to perform the contract. There must be:
* a valid contract
* terms of K must be certain/clear enough to allow a court to make an order
* non-breaching party has satisfied any conditions precedent
* money damages are inadequate (land, unique real property, etc.)
* feasible for the court to enforce and supervise the breaching party’s performance (no supervision for long period of time or if otherwise difficult to enforce, courts will not require people to perform service contracts bc it would be indentured servitude under the 13th Amendment)
* no defenses exist (contract-based defenses to formation and enforcement OR equitable defenses)
What are the contract-based defenses to formation and enforcement?
Defenses to Formation
* Mistake (unilateral, mutual)
* Misrepresentation (fraud and non-fraudulent)
* Undue Influence
* Duress
* Capacity
Defenses to Enforcement
* Unconscionability
* Illegality
* Statute of Frauds
Equitable Defenses
A court will not grant specific performance if the defendant can assert:
Laches: P waited an unreasonabley long time to seek specific performance and delay resulted in prejudice to the D
Unclean hands: P engaged in unethical or immoral acts relating to the contract
Rescission
Rescission: the avoidance or unmaking of a contract by a court.
Step 1: P must show grounds for rescission, such as
* fraud or misrepresentation by D
* mutual mistake of fact by both parties, or
* unilateral mistake of fact by one party if the non-mistaken party knew or should have known of the mistake of fact
Defenses to rescission:
* laches: if P waited an unreasonably long tiem to seek rescission and the delay prejudiced the defendant, the court may deny rescission.
* unclean hands: if P himself engage in unethical or immoral acts relating to the contract, the court may deny rescission
After rescission, P must return any benefits received from D
Step 3: P can then bring actions agains D for:
* Restitution: monetary compensation for the value transferred to D
* Replevin: recovery of specific property that was transferred to D
* Constructive trust or equitable lien placed on the property that was improperly obtained by D
Reformation
Reformation: judicial rewriting of contract or deed to reflect the parties’ true intent. Appropriate for:
* mutual mistake: if both parites were mistaken as tot he content or effect of a writing, the court may rewrite the contract
* unilateral mistake: if one party is mistaken as to the content or effect of a writing, reformation will be allowed if the other party knew of the mistake and either fraudulently induced the mistake or does nothing to correct the mistake
Constructive Trust
Constructive Trust: a judicially created remedy that imposes a duty to convey specific property to P if D would be unjustly enriched by retaining the property (equitable remedy, restitution theory). P must show:
* D holds title to the property that is to be subject to the contstructive trust
* D’s retention of the property would unjustly enrich D and
* the legal remedy is inadequate (aka money damages are inadequate)
* Tracing: trace from embezzeled money etc. to current property
* property in full satisfaction: if P gratned constructive trust, he acquires D’s property as full satisfaction of his claim
* increase in value: P gets any increase in value of the property
* decrease in value: D not liable to P if th eproperty decreased in value while he owned it
Defenses:
* Laches
* Unclean Hands
Equitable Lien
Equitable lein: results in the forced sale of D’s property and P receives the money derived from the sale. P must show:
* D holds title to the property that is to be subject to the contstructive trust
* D’s retention of the property would unjustly enrich D and
* the legal remedy is inadequate (aka money damages are inadequate)
* Tracing: trace from embezzeled money etc. to current property
Difference from constructive trust:
* no increase in value: P cannot retain any increase in value of the property
* additional satisfaction permitted: If proceeds of the forced sale do not cover the value owed to P, P is able to seek teh additional money from D to satisfy claim
Defenses:
* Laches
* Unclean Hands
Purchase Money Resulting Trust
Purchase Money Resulting Trust: occurs when one party purchases property and obtains title, but another party supplied all or part of the consideration to buy the property. The court imposes a resulting trust on the purchasing party, construing D as a trustee holding the percentage of the property for which the purchasing party paid consideration in trust for the party who supplied consideration. (e.g. if P paid 50% of price of house, then would be entitled to 50% of money from sale of the house)
Replevin
- Replevin: when D takes P’s personal property, P may pursue a replevin action to order D to return the property. P regains possession of the property and can recover damages for the loss of use of his property.
- Tort actions: can be used to recover money from D that has been misappropriate (tort of conversion) or obtained by fraud
- Contract actions: can be used to recover property such as goods from D that P legally entitled to under contract
Ejectment
- Ejectment: to regain possession of land held by another, P may bring a common law ejectment action (generally by establishing title to the land and the right to immediate possession of it).
- The judgment is directed at the sheriff who is ordere dto take possession of the property and return it to P
Compensatory Damages (tort vs contract definition)
- Tort: compensatory damages compensate P for harm or injury. These damages include pain and suffering, medical expenses, and lost wages.
- Contracts: compensatory damages most often take the form of expectation damages. They are intended to put th injured party in the same position as if the contract was performed. Generally, the amount of damages wil be based on the contract price for performance and the FMV of performance.
