Remedies Fast Deck Flashcards
Step One: Evaluate Adequacy of Legal Remedies
- Legal Remedies
a. Damages: Money
b. Restitution: Money, Replevin (recovery of specific personal property), Ejectment.
Step Two: Consider Equitable Remedies
- Equitable Remedies:
a. Restitution: (i) Constructive Trust; (ii) Equitable Lien.
b. Injunction: (i) negative order; (ii) mandatory order (in a K claim specific performance)
Step One for Tort Problems: Damages
- Actual damages: Compensatory that seek to put P back where he was before the tort. Actual damages in tort look to the past:
(a) General Damages: compensate for foreseeable losses (pain and suffering, etc.)
(b) Special Damages: compensate for losses not necessarily foreseeable (lost wages) and must be specially pleaded.
- Nominal Damages.
- Punitive damages: To punish and deter. Must be some proportionality. Wealthy D’s DO pay more than poor Ds.
Step Two for Tort Problems: Restitution
Benefit unjustly retained by D; there does not need to be any injury to P.
- Legal Remedies: Money, Replevin, Ejectment.
- Equitable remedies: Constructive Trust or Equitable Lien.
Constructive Trust
Obligation to convey specific property to P.
Elements: (i) D has title to property; (ii) acquisition of title was due to D’s wrongdoing; (iii) retention of property by D would result in unjust enrichment; and (iv) there is an inadequate legal remedy (insolvency ins enough).
Make sure you also say: (i) Property is held in trust by D; (ii) D’s sole obligation is to convey the property to P; (iii) P can use tracing to impose a constructive trust on the cash or property PROCEEDS of the wrongfully acquired property even IF the proceeds are MORE VALUABLE than the property that was wrongfully acquired.
Tips:
- P gets the benefit of any enhanced value of the property.
- Use when property acquired is worth as much or more than P’s claim.
- Cannot be used when D has improved other property with P’s property.
- P can use tracing
Equitable Lien
Security interest in specific property.
Elements: (i) D has title; (ii) Wrongful acquisition of the property can be traced to D (e.g., D used P’s property to get it); (iii) D’s retention would result in unjust enrichment; and (iv) inadequate legal remedy (insolvency is enough).
Also say: (i) imposed where D would be unjustly enriched; (ii) doctrine of tracing applies; (iii) P is NOT entitled to any increase in value; (iv) advantage over damages if the D is insolvent because it puts the lien holders ahead of unsecured creditors; (v) P can seek a deficiency
Tips:
- Can be enforced only up to the amount of P’s claim.
- Used when property acquired at P’s expense is worth as much as or less than P’s claim.
- Can be imposed on property that was merely improved with P’s property or the proceeds thereof.
- If P’s property is not used to acquire title, only an equitable lien is available and not a constructive trust.
- THIS REMEDY IS CUT OFF BY A BFP.
Step Three for Tort Problems: Injunction
Purpose of a TRO is to maintain the status quo in an emergency, pending issuance of a PI. Elements:
(i) Irreparable injury, weighed against any hardship to D to make sure D’s hardship does not greatly outweigh P’s potential benefit from the relief sought; and (ii) likelihood of success on the underlying claim. NOTICE ALSO REQUIRED UNLESS GOOD CAUSE IS SHOWN WHY IT SHOULD NOT BE NEEDED.
Purpose of PI is is to maintain the status quo pending the outcome of judicial proceedings. Elements:
(i) Irreparable injury, weighed against any hardship to D to make sure D’s hardship does not greatly outweigh P’s potential benefit from the relief sought; (ii) likelihood of success on the underlying claim; and (iii) notice/adversarial hearing.
Checklist for Granting Injunctive Relief in Tort, Step One: Damages
Are the legal remedies inadequate?
- Damages and money restitution may be inadequate because they are (a) too speculative; (b) too small to compensate the actual injury; (c) would require multiplicity of suits; (d) the injury is/would be irreparable; or (e) injury to land. UNIQUE PROPERTY. ALL LAND IS UNIQUE.
- Replevin may be inadequate if D can keep the property by posting bond, or if Sherriff may be unable to find the property.
- Ejectment: Ejectment (plus mesne damages) is an adequate remedy if P only wants a trespassing D off of her land, but inadequate remedy if P wants removal of an encroaching structure.
Checklist for Granting Injunctive Relief in Tort, Step Two: Feasible
Is an injunctive decree feasible?
- Must the court exercise too much supervision?
- Is their PJ over the Defendant?
- Is a negative or mandatory injunction appropriate?
Checklist for Granting Injunctive Relief in Tort, Step Three: Hardships
Should hardships be balanced? May be required in two situations:
- Encroachment: If the encroachment is intentional, there will be no balancing. P will always win on this issue. If the encroachment is innocent (including negligent), the Court will balance, but will lean strongly in favor of P seeking removal.
- Nuisance: Always balance hardships in a private nuisance case.
Checklist for Granting Injunctive Relief in Tort, Step Four: Defenses
- Laches
- Unclean Hands
- Freedom of Speech
- Criminal act.
Step One for Contract Problems: Damages
Injury to P arising out of Breach of K by D:
- Expectation Damages: This is the benefit P expected to get out of the K. Expectation damages look to the future.
- Consequential Damages: These are damages to P in addition to the lost expectation, they must be foreseeable at the time the K was entered into.
- Liquidated Damages: To be valid actual damages must have been difficult to ascertain at the time the K was entered into.
Step Two for Contracts Problems: Restitution
Money restitution: Benefits unjustly retained by D when there is a void or unenforceable K, or where P chooses not to sue on the K, permitting recovery in quasi-contract or quantum meruit. Remember that a breaching party may sometimes recover in restitution even though he has breached.
Step Three for Contracts Problems
Specific Performance: Order D to specifically perform the K. Requires: (i) a definite and certain K; (ii) P has performed, or is willing to perform; (iii) legal remedies inadequate; (iv) feasible to enforce; and (v) there are no defenses.
Rescission
K is void or voidable, and the deal is called off.
Elements:
- Mistake: (a) mutual; or (b) unilateral.
- Misrepresentation: (a) innocent; or (b) fraudulent.
Defenses: (a) Unclean hands; (b) laches; (c) election of remedies; (d) estoppel.
