Remedies - Essay Rules

Question 1

What are the Contracts Remedies?

(13)

CLIRN

RRERR

INJ

Answer 1

• Compensatory
  
  • Expectation
  • Consequential
• Incidental
• Reliance
• Liquidated
• Nominal
• Restitution (quasi-contract)
• Replevin (chattel)
• Ejectment (real property)
• Rescission
• Reformation
• TRO
• Preliminary Injunction
• Specific Performance
• Defenses
  
  • Unclean Hands
  • Laches

Question 2

Contracts Formation Defenses

List the defenses you would raise

Answer 2

Unconscionability

Mistake

Misrepresntation

Undue Influence

Impossibility

SoF

Question 3

SPECIFIC PERFORMANCE - To obtain SP…

• Valid K with more definite and certain terms
• Inadequate Legal Remedy
• Feasible Enforcement
• Performance Mutuality
• P’s Contract Conditions Satisfied or Excused
• No unfairness
  
  • Defenses
    
    • Unclean Hands
    • Laches
    • BFP
  • Unilateral Mistake
  • Hardship
  • Inadequate Consideration
  • Unconscionability
  • Misrepresentation

Answer 3

To obtain SP, mst be (1) VK w/, (2) ILR, (3) FE, (4) PM (5) PKCSorE, & (6) NU.

• VK w/: For eq relief, a VKWMDCT so th ct cn det wht it mst order each pty to do.
• IRL: (1) spec, (2) insolv D (3) need x suits, or (4) unique prop bargained for.
• FE: Cts deny injuncs whn nt feas to enforce, unlss rights are suff important. Perf. tht entails contin suprvsion, or invlvs suitability j/ment will gnrly nt be ordered.
• Perf Mutuality: Aggrieved pty mst shw bching pty cn secure perf.
• P’s K Conditions: To compel SP of a D, cond prec to th perf mst be sat or excused. _{**Insert DAMP WIFI MAM}
• No Unfairness: SP will nt be grantd if sch relief wld be unfair. Factrs in detrmnng unfairness incl [(1) defenses, (2) h/ship, (3) mistake, (4) misrep, (5) inad consid, (6) unconscion.]
  
  • Def: A D my assert defenses against SP, incl. (1) UH, (2) Laches, and (3) sale to BFP
    
    • ​UH: Pty seekng relief mst nt hve been guilty of wrngful condct w/ respect to trans sm.
    • Lach: Rght to eq relief is ct off whn thr hs been unreas delay in initiatng th claim, & delay pj D.
    • BFP: SP is ct off whn the K sm hs been sold to a BFP who (1) pays val consid (2) w/ no N of the K.
  • U Mistake: A UM by 1 pty is insuff to mke a K voidable, unlss non-mistaken pty (1) knew (ohrtk) of mistake, or (2) hd a dty to disclose fact abt whch other pty ws mistaken. A D’s actions tht do nt rise to th level of a K def for mistake can neverthelss be a factor tht results in the denial of SP. _H,T
  • M Mistake: MM occurs whn bth p’s to K are mistaken about a material element of the K. Neither party must have accepted the risk of the mistake. A K is voidable by pty adversley affected by the mistake.
  • Hardship: cn be a factor in nt grantng SP whn events tht occur after K form fall short of imprac, imposs, or frus o purp, but cause unread h/ship to the D n 3Ps.
  • Inad Consid: While IC is nt gnrly grounds for granting K relief, gross IC cn be a factor tht weighs in fav of K unfairness. _H,T
  • Unconscion: A K may be voidable ehr the proviss are 1-sided as to be uncon at the time the K is made. The defense is applied whr 1 pty hs unequal and sup bargainng pwr ovr th oth pty. Uncon my be a factor in denying SP though it my nt be a K form defense. _H,T
  • Misrep: If a pty (1) induces anther pty to enter into a K (2) asserting fraudlnt misrp (known untrue info), the K is (3) voidable by the pty who justifiably relies on the misrep. _H,T

Question 4

Equitable Defenses

Answer 4

Unclean Hands Pty seeking relief mst nt hve been guilty of wrngfl cndct w/ rspct to trans sm.

Laches Rght to eq relief is cut off whn thre hs been unreas delay in intiatng claim, and delay pj D.

BFP SP is cut off whn K sm hs been sold to a BFP who (1) pays VC, (2) w/ no not of K.

Hardship can be a factor in not granting SP whn evnts tht occur after K formtion fall short of imprac, impos, or FoP, bt cause unreas hardship to th D and 3Ps. _H,T,

Question 5

Tort Remedies Checklist

(11) CPN - MERCE - INJ

Answer 5

• Compensatory
• Punitive (add on)
• Nominal
• Money
• Replevin (chattel)
• Ejectment (real property)
• Constructive Trust
• Equitable Lien
• TRO
• Preliminary Injunction
• Permanent Injunction
• Defenses
  
  • Unclean Hands
  • Laches

Question 6

What are the Defenses to Torts Remedies?

Answer 6

Unclean Hands

Laches

Undue Hardship

Equitable Estoppel

Free Speech

Question 7

• Restitutionary rmdies prevent UE retained by a D; but are not available against BFPs. The restitutionary dgs equal the value of the benefit to the D that the D didn’t pay for; ie, the amount required to prevent UE.*
• When there is an inadqate legl rem,* recommend a CT when the value of the property increases.

Constructive Trust A CT is…

Answer 7

A CT is an eq rmdy to prevent (1) wrngfully obtained prop (2) traced to P (3) whch D hlds title & is (4) UE, whn thre is (5) ILR.[U/ maj, the SoF bars CT for breach of an oral propmise]

• Wrongfully Obtained Property
  
  • [Wrngful Cndct] insert rules for wrongful conduct (ie, misappropriation).
• Traced: D’s prop mst be traced solely to P’s prop.
  
  • BFP: A BFP (1) VC (2) w. no N of pty’s prop title claim.
• Title
• Unjustly Enriched
• ILR: if (1) S, (2) ID, (3) need x suits, or (4) U bargained for.
• [SoF] _{Ks Q only}. SoF req Ks invlvng [] to be in w & ~ by pty to be charged, unlss an exception applies.
  
  • Part Payment: For a goods sale, whn part of the purchase price hs been paid, K is enforced & o/side SoF to the extent of the purchase. _H,T
  • Part Perf: A ct may enforce a K whr thr hs been part perf (acts by either pty subseq to K form) ev’ing K existence. _H,T
  • Fraud Promise: _{K Qs only.} A CT will be imposed in the event of a fraudulent promise. _H,T
• Equitable Defenses
  
  • ​UH The pty seeking relief mst nt hve been guilty of wrngful condct w/ respect to the transaction sm.
  • Laches: Th rght to eq relief is ct off whn thr hs been unreas delay in intiatng th claim, n th delay pj the D.

Question 8

Equitable Lien

An equitable lien secures…

Answer 8

An EL secures priority payment of debt owed to P over other creditors by imposing a lien on (1) wrngfully obtained prop (2) traced to P, which D holds (3) title and is (4) UE, whn thr is (5) an ILR.

• Wrngfully Obtained Prop _{insert rules for wrongful conduct (ie, misappropriation). H,T}
• Traced: A P may trace prop to whatever form it hs transformed into. _H,T
  
  • _​Commingled - Lowest Intermediate Balance: U/ LIB rule, if commingled bank account withdrawals cause the balance to go below the P’s claim, an EL is limited to the lowest account balance b/w the time the wrngfully obtained prop ws added to the account and th lawsuit. _H,T
  • BFP: A BFP (1) pys val consid (2) w. no N of pty’s prop title claim. _H,T
• Title _H,T
• Unjustly Enriched _H,T
• ILR: if (1) specltive, (2) insolv d, (3) need multi suits, or (4) unique prop bargained for.H,T
• Equitable Defenses
  
  • ​UH The pty seeking relief mst nt hve been guilty of wrngful condct w/ respect to the transaction sm._H,T
  • Laches: Th rght to eq relief is ct off whn thr hs been unreas delay in intiatng th claim, n th delay pj the D.

Question 9

TRO

• Irreparable Harm
  
  • ​Inadequate Legal Remedy
  • Feasible Enforcement
  • Status Quo Preservation
• Likelihood of Success in a Prelim Injunction
  
  • [Claim]

Answer 9

TRO is an injnc to prsrve sttus quo untl a prelim injunc hearng. Th P est (1) irrep harm, and (2) liklihood of suc in a prelim injunc.

• Irrep Harm: To shw IH if an injunc is nt issued, th P est (1) ILR, (2) FE, and (3) sttus quo preserv as a primry cncrn.
  
  • ​ILR: if (1) spec, (2) insolv d, (3) need x-suits, or (4) unique prop brgaind for.
  • FE: Cts deny injuncs whn nt feas to enforce, unlss the rights are suff important.
  • Stts Quo Pres: For an injnc, status quo pres is a primary concern.
• Liklhood of Sucess _{<em>H, liklhood of Ps PI succ dpnds on whther it prevailed in a [neg] claim. </em>}
  
  • [Claim] _{<em>Analyze prima facie case. T, P [cld/cld not] est likelihood of success in a prelin injunction. </em>}

In conclusion, P was/was not entitled to a TRO.

Question 10

Preliminary Injunction

Answer 10

A Prelim injunc is issued pending a full trial on the merits to preserve the status quo. The P est (1) irrep harm, (2) likelihood of success on the merits of the underlying claim, and (3) hardship balancing of the equities in the Ps favor.

• IH: To show IH if an injunc is nt issued, P est (1) ILR, (2) FE, and (3) sttus quo pres as prim cncrn.
  
  • ​ILR: if (1) spec, (2) insol d, (3) need x-suits, or (4) uniq prop brgnd for.
  • FE: Cts deny injuncs whn nt feas to enforce, unlss rights are suff important._H,T
  • Sttus Quo Pres: For an injunc, sttus quo pres is a primary cncrn. _H,T

In concl, P could/could not est irreparable harm.

• L/hood of Sucess on Merits: H, the l/hood of Ps success on th merits depndd on whther it prevailed in a [neg] claim. _{<em>Analyze prima facie case. T, P [cld/cld not] est likelihood of success in an u/lying claim</em>.} ​
• Balancing the Hardships: The blance of th equities weigh in th p’s favor whn th p’s harships, if te injunc is not issued, will be signif > thn the hardships on the D and 3Ps if the injun is issued.
  
  • [P]_H , [D]_H , [3P]_H. _{T, the balance favored P/D/3P.}

In conclusion, P was/was not entitled to a prelim injunc.

Question 11

INJUNCTION

Real Property

Answer 11

An injunction is an eq remedy where a ct orders the D to do or refrain from doing a specific act when the P establishes

(1) property right, (2) ILR, (3) FE, (4) balancing h/ships in its favor, and (5) no defenses.

_{H, T (deal with all elements in one paragraph)}

Question 12

Permanent Injunction (5) To obtain a Perm Injunc…

Answer 12

P est (1) protct prop/intrst (2) ILR, (3) FE, (4) HB of equities in Ps favor, & (5) no def.

• ​ILR: if (1) spec, (2) insolv d, (3) need x-suits, or (4) unique prop brgaind for.
• Prop Right/Intrst: Trad, only a claim re tang prop wrrnts an injunc. Mdnly, any intrst is protctd.
• FE: Cts deny injuncs whn nt feas to enforce, unlss the rights are suff important.
• Balancing H/ships: Th blnce of th equities weigh in P’s favor whn p’s h/ships, if injunc is nt issued, will be signif > thn the h/ships on the D and 3Ps if injun is issued.
  
  • [P]_H , [D]_H , [3P]_{H. T, the balance favored P/D/3P.}
• No Def: A D may assert defenses agaisnt perm injunc, incl (1) UH and (2) Laches
  
  • ​UH: Pty seekng relief mst nt hve bn guilt of wrngful condct w/ rspct to trans sm.
  • Laches: Rght to eq relief is cut off whn thr hs bn unreas delay in initiatng claim, & delay pj D.

In concl, [P] was/not entitled to a permanent injunction.

Question 13

Tort Remedies

• Nominal Damages
• Compensatory Damages
  
  • Consequential Damages
• Mitigation
• Punitive
• Restitution
• Constructive Trust
• Equitable Lien
• Permanent Injunction

Answer 13

Nominal dgs are nt awarded for intentional misrep. _{T, nt entited to ND.}

Compensatory: compensate P for injury or loss. Gnrl dgs = nonecon losses directly attributable to tort tht all p’s wld hve b/c they flow as a naturaal result of the tort (pain & suff, etc). Special Dgs = econ losses directly attrib to tort tht some p’s may hve & are unique to each specific p (eg, medical bills, lst wages).

A P mst prve actual econ loss to recover for intentional misrep. U/ maj, measure of recovery is benefit of bargain, MP - KP. U/ min, dgs are ltd to P’s out-of-pocket expenses. _{H, u/ maj, A’s dgs were $5. Dgs were certain b/c; dgs were causal b/c; dgs were fores to X b/c. U/ min, A’s dgs were ltd to $5, $10 moving expenses, fees to M, csts for temporary housing if, deck repair, & bat removal. Thus, Angela was entitled to actual out of pocket expenses.}

• Consequential dgs, if certain, can be recovered.

Mitigation limits a Ps recvry due to failure to take reas steps to aviod dgs after a tort ws committed.

Punitive: A P may recvr PD if clear & convincing ev est D acted w&w, reck, or w/ malice.

Restitution dgs are imposed by law to obligate a D to pay a P th reas value of benefit unjustly obtained as a result of a tort. _{H, C benefited frm sale w/ $25. A ws entitled to rest for $25 tfr’d, offset by value of house. Thus, A ws entiteld to restitution}.

Constructive Trust is an eq remedy to prevent UE resulting frm wrongful conduct (fraud, UI, brch of fid dty). U/ maj, SoF bars raising a CT for brch of an oral promise. _{<em>H, ass SoF met, A cld raise a CT to prvnt C’s UE of $25 resulting frm her intnt misrep abt house condition. T, C hld $25 in CT for A. </em>}

Equitable Lien secures priority paymnt of debt owed to P over other creditors by imposing a lien on (1) wrngflly obtained prop traced to a P (2) whch th D hlds title and is UE. _{H, ct fnd C liable to A in tort & K. $25 C received frm sale traced to A. C hld title to $25 & ws UE by prop tht belongd to A. T, A cld obtain EL on $25.}

Permanent Injunction To obtain a PI, P mst est (1) protectable prop right/intrst (2) ILR, (3) FE, (4) HB, &(5) no defenses.

Question 14

Contract Remedies

• Compensatory Damages
  
  • ​Expectation
  • Consequential
• Mitigation
• Restitution
• Rescission

Answer 14

Compensatory Split into 2 cat: E & C. Mst be C,C,F.

• Expectation dgs are the MP - KP.
• Conseq awrdd if reas prsn fores at tme of K frmtion sch dgs will result frm brch.

Incidental $ a n-bing pty incurs as a result of a brching pty’s brch.

Mitigation: A pty to a K hs ob to avd dgs to extnt poss by tkng stps to prvnt loss whn sch stps do nt invlve UR, $, or incon. Failure to mit dgs will defeat only claim for cons dgs, nt deprive a n-b pty of expec dgs.

Rescission: A n-b pty to a K may rescind th K, whch req a retrn of bnfit cnfrrd on other pty. Fraud is a ground for rescission. Rescission reqs legal rem to be inad.

Restitution: If a n-b pty tfrs a bnfit to a brching pty, while attmptng to perf. a K, n-b pty is enttld to restitution for benefit tfr’d.