Remedies Essay Questions Flashcards
Land Damages: Breach of K
Where a buyer sues a seller for breach of a land sale contract, damages are measured either by: (i) out of pocket loss; or (ii) the benefit of the bargain (K price vs. Market price).
Rescission
- Allows P to wipe out the K and restore the status quo prior to the K so long as the D does not have any legitimate defenses;
- Both fraudulent and innocent misrepresentation are grounds for rescission if the misrep happened at or before the time of entering into the K.
- If the D makes a fraudulent misrep, then P has the option of either rescinding the the K and seeking restitution of any unfair benefit the D received, or affirming it and seeking damages.
Quasi-Contract
A restitutionary remedy known as quasi-contract is imposed in situations where the Defendant has been unjustly enriched by the actions of the Plaintiff. Elements:
- P conferred a benefit on the D by rendering services;
- It conferred the benefit with reasonable expectation of being compensated for its value
- The D knew or had reason to know of the P’s expectation; and
- The D would be unjustly enriched if he were allowed to retain the benefit without compensating the P.
Quasi-Contract: Damages
Measure of Damages:
- P may recover the value of the goods or services;
- If tangible property has been transferred to the Defendant it may replevy the property, however transfer to a BFP cuts off this right;
- A BFP is one who takes value without knowledge of the wrong.
Equitable Lien
An equitable lien is imposed when the retention of property (or its proceeds) by a D would result in unjust enrichment.
Elements:
- D misappropriate P’s property under circumstances creating a debt or obligation to pay;
- Plaintiff’s property can be TRACED to property held by Defendant;
- The D’s retention of P’s property would result in unjust enrichment; and
- The legal remedy is inadequate.
- No defenses.
P can seek a deficiency judgment.
BFP of the SUBJECT PROPERTY but not proceeds (I guess?) defeats the lien as to the property.
Constructive Trust
A constructive trust is imposed when the retention of property (or its proceeds) by a D would result in unjust enrichment.
Elements:
- D misappropriate P’s property under circumstances creating a debt or obligation to pay;
- Plaintiff’s property can be TRACED to property held by Defendant;
- The D’s retention of P’s property would result in unjust enrichment; and
- The legal remedy is inadequate.
- No Defenses.
P CANNOT seek a deficiency judgment.
BFP of subject property defeats constructive trust.
Specific Performance
Specific performance is where the Court orders the Defendant to perform the service that she promised to perform under her contract with another.
This remedy is available only if:
- There is a K with definite and certain terms;
- Plaintiff has performed, or is ready willing and able to perform;
- The legal remedy is inadequate;
- The Court can feasibly enforce the performance; and
- The Defendant has no defenses.
Election of Remedies
- Under the defense of election of remedies, the general rule is that the remedy of (a) damages for fraud, and that of (b) rescission of the K based on fraud, are inconsistent, since any election to seek damages in effect affirms the existence of the K, whereas rescission seeks to have the K set aside.
- If the P FIRST seeks to rescind the K then seeks a suit for damages in the alternative, that is OK.
- If P even files SUIT for damages, it is an affirmance of the K and a bar to any later suit for rescission.
Purchase Money Resulting Trust
A court may impose a purchase money resulting trust where one person takes legal title and the other person supplies the consideration before or at the same time as the purchasing party takes title. Where this occurs:
- Trustee sole duty is to transmit property to the beneficiary.
- Where only part of purchase price is paid, the beneficiary only gets a pro-rata interest.
Exceptions:
- Where this is done to evade creditors;
- Where it is done for illegality of purpose, but will not bar relief where the illegality is slight compared to the magnitude of the trustee’s enrichment.
Conversion
Damages for conversion are the FMV of the property at the time it was converted, plus interest.
Restitution: Tort
- P is awarded a sum of money measured by the reasonable value of D’s ill-gotten gain;
- To recovery there must have been a tort that wrongfully benefited the Defendant.
Injunctive Relief
- Legal remedy must be inadequate (such as a continuing wrong);
- It must be feasible to enforce;
- Court must balance the hardships; and
- There must be no defenses.
Injunction: Feasibility of Enforcement
- Depends largely on whether it is a negative or positive injunction;
- Negative injunctions pose no feasibility problems because Court can hold D in contempt if it fails to refrain from certain activities;
- Mandatory injunctions pose feasibility problems because the court must supervise the order to make sure the affirmative act is done properly.
Injunction: Balancing Hardships
- Court may perform balancing test to make sure hardship to D or the PUBLIC does not outweigh the benefit to P;
- Under majority view if harm to D or public outweighs the harm to the P, the P may ONLY seek monetary damages.
Injunction: Coming to the Nuisance
The fact that a P comes to a nuisance is typically not a defense to an injunction.
