Remedies Essay

Question 1

Preliminary injunction elements

Answer 1

Irreparable harm
Balancing the hardships
Likelihood of success on merits
Enforceability (feasible)

Ick block leo eating

Question 2

Specific Performance elements

Answer 2

Valid contract
Terms clear
Performance due
Money inadequate
enforceability (feasible)
No defenses (K or equitable Ds)

Question 3

Constructive Trust req-

Answer 3

D holds title to the property

D’s retention of the property would unjustly enrich the D

and

Legal remedy is inadequate

(same requirements for equitable lien)

Question 4

Constructive Trust

Answer 4

A judicially created remedy that imposes a duty to convey specific property to the plaintiff if the defendant would be unjustly enriched by retaining the property

Question 5

TEMPORARY RESTRAINING ORDER

Answer 5

A TRO is a short-term injunction that is typically sought at the first stage of the plaintiff’s request for injunctive relief. Its purpose is to maintain the status quo pending a hearing for a preliminary injunction, and it may be issued ex parte upon a sufficient showing of urgency (immediate+irreparable). In California, a TRO issued without notice to the defendant generally may not last longer than 15 days.

To obtain a TRO, the plaintiff must establish that: (i) the plaintiff will suffer irreparable harm if the injunction is not issued, (ii) the plaintiff’s hardships if the injunction is not issued will be significantly greater than the hardships on the defendant and third parties if the injunction is issued (i.e., a balancing of the equities in the plaintiff’s favor, and (iii) there is a likelihood that the plaintiff will succeed on the merits of their claim.

Question 6

Irreparable Harm (TRO, prelim injunction)

Answer 6

To show that a plaintiff will suffer irreparable harm if the injunction is not issued, the plaintiff is usually required to establish the lack of an adequate remedy at law.

Question 7

Breach: Anticipatory Repudiation

Answer 7

In cases where the other party’s words, actions, or circumstances make it clear that he is unwilling or unable to perform, the aggrieved party may: (i) sue immediately, (ii) suspend his own performance and wait and see until the due date, (iii) treat the repudiation as an offer to rescind and treat the contract as discharged, or (iv) ignore the repudiation and demand performance.

Question 7

Balancing of the Hardships (TRO)

Answer 7

Finally, the plaintiff also must show that the balancing of the hardships weighs in his favor. The injury to the plaintiff if the TRO is not granted is weighed against any hardship to the defendant and third parties if the TRO is granted to ensure that the hardship to the defendant does not greatly outweigh the benefit that the plaintiff may get from the protection of the TRO.

Question 8

Preliminary injunction

Answer 8

A preliminary injunction is a provisional remedy designed to maintain the status quo pending a trial. It is issued after notice is given to the defendant and after the defendant is given an opportunity to be heard. The standard is the same as the standard for a TRO, but instead of expiring after 15 days, a preliminary injunction will preserve the status quo until trial.

Question 9

Likelihood of Success (usually prelim injunction stage)

Answer 9

Because Sam’s defenses were not available for consideration by the court at the TRO stage, Sam will be entitled to an adversarial hearing at the preliminary injunction stage and will be able to present his arguments against Rick’s likelihood of success on the merits, including his defenses.

Question 10

SPECIFIC PERFORMANCE

Answer 10

Specific performance is a remedy by which a party to a contract is compelled by court order to render their promised performance or a substitute. For a court to grant a plaintiff’s request for specific performance, the plaintiff must establish: (i) the existence of a contract; (ii) that the contract terms are sufficiently certain to provide the basis for a court order; (iii) that the conditions for the defendant’s performance must be satisfied; (iv) that there is an inadequate relief at law; (v) that the relief must be equitable; and (vi) that enforceability of the specific performance is feasible.

OR

Specific performance requires a valid contract; the terms must be sufficiently certain to provide a basis for the court order; the conditions required for the defendant’s performance must be satisfied; damages must be inadequate to protect the plaintiff’s expectation interest; relief must be equitable, and no defenses may exist; and enforcement must be feasible.

Question 11

Sufficiently Certain Terms

Answer 11

Specific performance may only be granted when the terms of the contract are sufficiently certain to provide the basis for a court order.

Question 12

Conditions for Defendant’s Performance Satisfied

Answer 12

To compel specific performance by a defendant, any conditions precedent to that performance must have been satisfied or excused.

Question 13

Inadequate Legal Remedy

Answer 13

The legal remedy may be inadequate when the plaintiff seeks to recover a rare or unique chattel, when damages are too speculative, or when the contract is for the purchase of land.

Question 14

Feasibility of Enforcement

Answer 14

A court will not specifically enforce a promise if such enforcement would impose burdens on the court that are disproportionate to the advantages to be gained from its enforcement and the harm to be suffered from its denial.

Question 15

Equity defenses

Answer 15

Specific performance will not be granted when such relief would be unfair, such as when there are defenses against specific performance.

Question 16

Unclean Hands

Answer 16

The equitable defense of unclean hands is available when the party who seeks equitable relief has engaged in serious misconduct in close relation to the claim.