Remedies Final Flashcards
Death claims
Survival action and wrongful death
Survival Action
- P must be decedent’s estate
- Subject to claims from decedent’s
creditors - Damages up until time of death like
Pain and suffering
Medical expenses
Lost wages
Wrongful Death
- P must be decedent’s spouse or
next of kin - Not subject to decedent’s creditors
- Damages past, present, and future
like:
Medical expenses
Funeral and burial costs
Loss of support (future income)
Loss of consortium
(companionship)
Negligence
- Duty
- Breach
- Causation
- Damages
Types of harm to personal property
Trespass to chattel and conversion
Trespass to chattel
- Intentional
Intent to do the act
Mistake of ownership not a
defense
Transferred intent permitted - Interference with P’s use or
possession of chattel
P can’t use or /possess chattel
OR chattel is actually harmed
Conversion
- Intentional
Intent to do the act
Mistake of ownership not a
defense
Transferred not permitted - Substantial interference with P’s
use or possession of chattel
Severity, duration, and/or extent of
harm warrants D paying for the
full value of the chattel
Types of harm to real property
- Physical injury to land, structure on
land, attachment to land (trees,
crops) - Possessory invasion (using,
entering, occupying, or taking w/o
authorization) - Interference w/ use and enjoyment
Physical injury to real property
- Trespass to land (encroachment for
structure invading)- Intentional
Desire and purpose to invade
land
Mistake as to land ownership
not a defense
Physical invasion
No harm required, just
interference w/ exclusive
possession, including entry w/o
permission, remaining on land
w/o right to be there, or
placing/projecting object on
land w/o permission
Of another’s land
- Intentional
- Trespass to chattels/conversion
(including severance)
Damages for physical injury to real property
- Lesser of diminution in FMV OR
reasonable repair costs + loss of
use
UNLESS P has personal reason to
repair
AND repair costs are reasonable in
light of property’s value before the
injury and the actual damages
sustained
Possessory invasion
- Trespass to land (including
encroachment) - Trespass to chattels/conversion
(including severance)
Damages for possessory invasion of real property
- Trespass
Single – Nominal
More significant – rental value of
land - Encroachment
Temporary – cost to remove +
restore + loss of use
Permanent – diminution of FMV - PLUS
Consequential damages (like loss
of profits)
Punitive if denied permission but
trespassed anyways
Interference w/ use and enjoyment
Nuisance (private and public)
Private Nuisance
- Substantial
Offensive, inconvenient, or
annoying to the average person in
the community - Unreasonable interference
Harm to P outweighs utility of D’s
conduct
OR harm to P is greater than P
should be required to bear w/o
consideration
Factors include
Neighborhood, value, and
alts for D - With a private individual’s use or enjoyment of their land
Public Nuisance
- Substantial
- Unreasonable interference
- W/ health, morals, welfare, safety,
and property rights of the
community
Factors include
Location, frequency, duration,
degree of damage, and social
value of activity - Private party can recover if suffered
damage different in kind (not just
degree) from what public suffered
Defenses to nuisance
- Legislative authority (like zoning) –
persuasive, not an absolute defense - “Coming to the nuisance” – a factor,
not an absolute defense
Damages for interference w/ use and enjoyment of real property
- Temporary
Cost of repair/remediation
OR diminished rental value + loss
of use + damages for discomfort
or annoyance - Permanent – if cost of
restoring/repairing exceeds
diminution or no way to
control/remedy the problem
Diminution + any consequential
damages
Defenses for torts
- Causation – actual cause = “but-for”
- Foreseeability – Proximate cause =
type of harm was reasonably
foreseeable
NOT extent of harm – Eggshell
(take as you find) - Certainty – Proven and calculated
w/ reasonable certainty - Unavoidability/Duty to mitigate – P
takes reasonable and timely steps
to mitigate
Reasonable cost of repair
Less than FMV before damage
Or less than diminution
All Real property damages
Considered unique so legal damages usually considered inadequate (see equitable remedies)
What is a general limitation on recovery?
No double damages
Valuation formula for property destroyed or converted
FMV
* Value at time of harm
+ Ensuing loss like loss of profits or
loss of use
- Scrap/Salvage value
Fluctuating Market
* Highest MV b/w injury and time of trial + interest
ALT
* Actual value to owner, NOT sentimental value
Valuation formula for damaged property
Diminution in value OR reasonable cost of repair
+ Ensuing loss like loss of profits or
loss of use
- Damages reasonably avoided
Lost income
- Lost wages (usually for temporary
injuries) - Lost/diminished earning capacity
(usually for permanent injuries)
Future losses
- Recoverable if preponderance of
evidence and reasonable certainty
$ must be discounted from
present value and account for
inflation
Includes:
Loss of use
Lost profits
Loss of use
- P must prove
Needed the property
Prevented from using the D’s
actions
Lost profits
- P must prove
Property was used to create
income
Consider factors like:
Likelihood of success of
business/transaction (business
conditions, similar transactions,
expert testimony, etc)
Look out for foreseeability
and certainty limitations
Pure economic loss w/o physical harm
- No pure economic loss w/o physical
harm
UNLESS
Intentional tort
Professional malpractice
Nominal
- When no actual damages
BUT not if damages are required
for claim
Punitive
- Compensatory/nominal required
first - Willful conduct (malice, oppression,
or fraud) - Key factors
Character of D’s act (req
deterrence or punishment)
Nature and extent of harm to P
Wealth of D - Proportionality factors and 9 to 1
ratio
Restitution/Unjust Enrichment
- Alternative to damages when
inadequate or when other types of
relief are unavailable - Restitution is available regardless of
why D was unjustly enriched - The more conscious wrongdoing, the more likely D will have to disgorge all gains/profits
When enrichment is NOT unjust and when entitled to restitution anyways
- Not unjust when
P voluntarily confers benefit
(officious benefit or good
Samaritan)
BUT P is entitled to restitution
when
D exercised a meaningful
choice to accept the benefit
from P
OR D is in an emergency
situation and
Benefit conferred from P was
necessary to prevent D from
serious bodily harm or pain
P intended to charge
P did not have a reason to
know D would not consent
D’s consent was impossible
(unconscious, a minor, etc)
Legal restitution options
- Money
- Replevin – property + loss of profits
- Ejectment – returning real property
+ damages for harm + damages for
lost rental value/loss of use +
damages for mesne profits
If seeking mesne profits, a good-
faith D is entitled to credit for
value of any improvements D
made to the property
Equitable restitution options
- Constructive trust
- Equitable lien
- Purchase-money resulting trust
- Subrogation
Constructive trust
- D did not agree to hold assets on
behalf of P, but unjustly enriched,
so ct construes D as holding in trust
of P and order conveyance of title
to P - P entitled to the ENTIRE res
- If property value bigger than D’s
unjust enrichment, P gets to keep
any increase - If property value less than D’s
unjust enrichment, P gets only the
property at whatever its worth - Preferred when property value has
INCREASED
Equitable Lien
- Only when P is entitled to a
PORTION of the res - If property value bigger than D’s
unjust enrichment, P can get a
deficiency ($) judgment for amount
left owed - Preferred when property value has
DECREASED
Constructive trust/Equitable lien requirements
- D holds title to res
(property/money) - But it rightfully belongs to P bc
traced to D’s wrongdoing
Tracing when commingled into a
bank account
P gets maximum benefit
Assumption D spends own $
first
Unless $ used to purchase
new res and makes
profits, then assumed P’s
$ used
LIMITATION – lowest
intermediate balance rule
When $ in account falls
below amount traceable to P,
$ gone and cannot be
replenished
LIMITATION – if res transferred to
a bona fide purchaser
For value
AND w/o actual or constructive
notice of P’s interest, P may not
enforce - D keeping it – unjust enrichment
Purchase-money resulting trust
- P pays $ to purchase property
- Title to property not put in P’s
name, but D’s - P did not intend for D to become
sole owner (so ct will imply D
holding for P)
Subrogation
- P (subrogee) can stand in place of
D’s creditor /lienholder and recover
from D when
P paid D’s debt to
creditor/lienholder
P was not primarily liable for the
debt
P did not voluntarily pay the debt
and payment protects P’s interests
P paid the entire debt
Allowing P to recover by
subrogation would not cause any
injustice to the rights of others
General Equitable/Coercive Remedies
- Backed by contempt of ct (fines, jail,
both) - No right to jury trial; ct has
discretion - Mandatory or negative
Cts gen disfavor mandatory bc
harder to enforce
Examples of irreparable harm/inadequate legal remedy
- $ damages not available
- $ damages inadequate (like health
or safety concern) - Property is unique (ex. Real
property always unique, sometimes
personal items) - D is insolvent
- Replevin or ejectment is impractical
(ex. Item can’t be located or too
difficult for sheriff to eject) - Potential for multiplicity suits
- Abrogation of con rights
- Loss of chance or advantage
- Prospective tort (like imminent
pollution)
Propensity/Ripeness
- To prohibit future conduct, P must
show there is a realistic threat from
D that future harm or future injury
from past harm is likely to occur
Cannot be mere possibility or
subjective, but sufficiently
concrete
Temporary Restraining Order (TRO)/Preliminary Injunction (provisional relief, interlocutory order) Requirements
- Likelihood of success on the merits
Only requires strong or substantial
probability of success, not
certainty - Irreparable harm focused on
appropriate timing - Balance of equities or undue
hardships (including public interest
considerations like economy,
environment, health,
safety/security, etc)
P if denied
D if granted
Public int
Which hardships/burdens
outweigh which benefits
Willful conduct from D always
weighs heavily
TRO
- Preserve the status quo until a
hearing can be heard for a
preliminary injunction - Lasts 14 days, can be renewed 14
more for good cause shown or
consent - Can be obtained ex parte if
Moving party can clearly show it
will suffer immediate, irreparable
injury before non-moving can be
notified and hearing held
Attorney certifies in writing efforts
to notify and explanation for no
notice - Gen not appealable
Preliminary Injunction
- Preserve the status quo during the
case - Notice always required
- Appealable
Permanent Injunction (complaint seeking injunction)
- Available after case over
- Requirements
Irreparable harm
Feasibility of enforcement –
considers administrative burden
on the ct
Negative – easier to enforce
Mandatory – harder to enforce
Balancing of equities or hardships
(public interest)
No defenses
Defenses to permanent injunction
- Unclean hands
P engaged in wrongful conduct
Directly related to the claim - Laches
P unreasonably delayed
D suffered material prejudice - Acquiesce
P knowingly fails to object to an
infringement of P’s rights
By D who acted unknowingly and
w/o malice
Declaratory
- Statutory remedy available under
state/fed law - Ct declares party’s rights
- Requires actual justiciable
controversy (ripeness)
Actual live concrete dispute
What law governs in contracts?
UCC - Goods (movable, tangible property)
Common law - all else
Unclear - Predominance Test: what is the predominant purpose of the contract as a whole?
What does a contract require?
Offer, acceptance, and consideration
Promissory estoppel
Even if consideration is lacking, cts can still enforce a promise to prevent injustice by relying on promissory estoppel as a sub
* Promisor makes a promise
* Promisor foreseeably induces promisee’s reliance
* Promisee actually relied on the promise
Remedies are limited to reliance damages (as if promise was never made)
Offer under UCC
Inviting acceptance in any manner and by any reasonable medium under the circumstances
UCC - mandatory offer terms
Parties, subject matter, quantity
UCC - What is a firm offer
Made by merchant
Signed writing
Assurance it will be held open for a specified time
Does not require consideration
Irrevocable during the specified time, or if no time specified, then for a reasonable time (3 months max)
Offer under common law
Manifestation of willingness to enter into a bargain
Common law - Offer requirements
Intent
Definite and certain terms
ID of parties
Subject matter
* If land sale, price mandatory
* Otherwise, ct can reasonably supply
missing terms
Communication to the offeree
Common law - when does an offer terminate?
Termination if
o Offeree rejects
o Offeree counteroffers
o Offeror revokes, dies, or becomes incapacitated before acceptance
Cannot revoke if
* Option K: consideration given for
holding offer open for specified
period of time
* Detrimental reliance/partial
performance: Offeree already
began to perform (unilateral k) or
offeree began to preparing to
perform if justice requires (bilateral k)
o After reasonable time
Acceptance by silence?
Yes, if
* Based on prior dealings or trade practices
* OR recipient of services knows or should have known that services were being rendered w/ expectation of compensation and, by a word, could have prevented services from being rendered
UCC - acceptance
TBD - large text box
Common law - acceptance
Manifestation of assent to the terms of the offer
o Can be words or conduct
o Methods of acceptance
Bilateral k (more typical): both parties make
promises to perform
Unilateral k: offeror makes promise, and
offeree accepts by actually performing
Common law - acceptance mailbox rule
Mailbox rules
Acceptance is effective when sent
If rejection and acceptance sent, acceptance is effective if received first
Consideration
Bargained for exchange of legal detriment
- Inadequate consideration
o Gifts, sham/nominal consideration, most
benefits received in the past, and preexisting
duty (unless owed to a third party)
Contract defenses
SoF
Misrepresentation/fraud in inducement
Unconscionability
Mistake
Misunderstanding
Illegality
Lack of capacity
SoF
Requires 5 types of k to be in writing
o Marriage (to do or not if married)
o Real property interests
Except conveyance already made or 2/3 of
payment, improvement, or possession
o Debt of another/promise to pay
o One yr (incapable of being performed within)
Except if full performance already occurred
If partial performance, restitution may still be
available
o Goods of $500 or more (sale)
Except (1) goods accepted or paid for, (2)
admission in ct, (3) specially manufactured
goods not suitable for others
Exceptions to SoF
Merchant’s confirming memo: enforceable against writer and recipient if
B/w two merchants
Non-signer receives signed confirmation and has
reason to know contents
Non-signer does not object within 10 days of
receipt
Admission in ct
Promissory estoppel
But recovery limited to necessary to prevent
justice
SoF writing req
Writing requirement (one or more writings can be combined)
o Essential terms
o Signed by the party to be charged
Misrep/Fraud in Inducement
Can be innocent, negligent, or fraudulent (intentional)
o False statement or omission of material fact
o Justifiable and actual reliance
o Misrep Damages (actual pecuniary loss)
o Fraud Damages
Uncon
k is so unfavorable to one party that no reasonable person would have agreed to it
Assessed at the time of k formation
o Procedural
Unfairness in the bargaining process
o Substantive
Unfairness in the terms (not including unfair
price)
Mistake
Belief not in accord w/ the facts
o Mutual
About a basic assumption existing at time of k
formation
Material effect on deal
Adversely affected party did not assume the
risk of the mistake
o Unilateral
About a basic assumption existing at time of k
formation
Material effect on deal
Adversely affected party did not assume the
risk of the mistake
Other party knew or should have known of
the mistake
Misunderstanding
Over ambiguous terms – depends on awareness
o If both or neither aware of ambiguity, no k unless both parties intended the same meaning
o If one party aware, binding contract based on ignorant party’s reasonable meaning
Lack of capacity
o Legal incapacity (i.e. minor, mental illness, intoxicated)
o Duress
o Undue influence
Conditions
Conditions – event that must occur before party’s performance is due (i.e. provided that, if)
o If condition does not occur, party’s performance is not due or is excused
o Does not include promises – unconditional commitment to do or refrain from doing something and failure to perform is breach
Ambiguity usually resolved in favor of
promise
Types of conditions
Express (through language) – requires strict compliance
Constructive (supplied by cts for fairness) – substantial performance sufficient
Waiving a condition
Can be waived by receiving and keeping benefit or failure to insist on condition
Waiver can be retracted unless other party has detrimentally relied
Parol Evidence Rule
o Limits admission of evidence of discussions or writings
Made before or contemporaneous to
A written contract
PER - When writings not allowed
Contradictions
PER - When writings might be allowed
Supplements – depends on integration
* If k is totally integrated (final expression
intended to include all details) – not allowed
* If k is only partially integrated (final expression
not intended to include all details) – allowed
PER - Also allows writings when
Ambiguous k terms need interpretation
o UCC considers
Course of performance
Course of dealing
Trade usage
Condition precedent
Contract failure defenses
Modification
Oral modifications typically allowed
Common law – no oral modifications clause not
enforced
General exception – if k as modified falls under
SOF, then must be in writing
* If no writing – original k enforceable, but not
modification (but may still operate as a
waiver)
Anticipatory Repudiation
o An unequivocal expression
o By a party
o Occurring before the time for performance is due
o That the party will not perform under the contract
UCC: Right to adequate assurance of performance (repudiation)
When reasonable grounds for insecurity arise regarding performance, other party may in writing demand adequate assurance
For merchants, reasonableness of insecurity and
assurance determined by commercial standards
Acceptance of improper delivery or payment
does NOT prejudice right to demand adequate
assurance of future performance
Until assurance received, if commercially reasonable, may suspend performance (if not received agreed return)
After receipt of justified demand, failure to
provide within a reasonable time not exceeding
30 days allows repudiation
UCC Breach - Single delivery
Single delivery
o Perfect tender rule: If goods fail to perform in any
respect, buyer has the following options:
Reject the whole within a reasonable time
Accept the whole
Accept any commercial unit (whole part) and
reject the rest
UCC Breach - Installment Ks
o Substantial conformity rule: Buyer can reject only when
Nonperfect tender affects the whole contract
Seller cannot cure
UCC Breach - Seller Curing
o Seller must give notice to buyer
o New tender must be made within time for performance or after time of performance if seller has reasonable belief late tender would be acceptable to buyer
Common law breach - Material/Minor
Material breach
o No substantial performance under the contract
o Effect: non-breaching party is excused from performance
Minor breach
o Yes substantial performance under the contract
o Effect: non-breaching party must still perform but may recover damages
Common law breach - Factor to determine Substantial
o Extent of benefit of bargain received
o Extent of performance
o Willingness of breach
Defenses excusing performance
Impossibility
o Event that neither party assumed the risk of
o And performance literally impossible
Impracticability
o Parties did not believe event would occur and did
not allocate the risk of the event to the party
seeking to use the defense
o Event concerns basic assumption of the contract
o Performance is extremely and unreasonably
difficult
Frustration of purpose
o Both parties know the purpose of the contract
o And event not reasonably foreseeable totally
destroys the purpose for which the party seeking
to use the defense entered the contract
Contract Damages
Primary
- Liquidated
- Expectation
- Reliance
- Nominal
Secondary
- Consequential
- Incidental
- Punitive
Liquidated
Cts will enforce if reasonable in light of anticipated loss or actual loss
o When difficult to estimate or prove the loss AND
o Amount or formula is a reasonable forecast of
the loss
Cts will NOT enforce if damages are a penalty (unreasonably large or disproportionate to the breach)
o When unenforceable, non-breaching can still get
remaining primary damages depending on what
actual damages can be proven
Expectation
Damages that approximate the value of the bargained-for-benefit that the non-breaching party expected to receive (DEFAULT)
* Limitations – causation, foreseeability (during
formation), certainty, and unavoidability/duty to
mitigate
* Typically highest $, but when difficult to prove,
look to next
Expectation - Land Sale K
Seller breaches
* Buyer’s expectation: land’s FMV on due date of
performance – k price
* Minority rule – buyer only gets reliance UNLESS
seller committed bad-faith breach
Buyer breaches
* Seller’s expectation: k price – land’s FMV on date
of breach
Reliance
When cannot prove damages w/ reasonable certainty
Only choice if claims based on promissory estoppel (no consideration so no breach bc no valid k)
Losing ks
o Some cts cap reliance so no higher than
expectation
Consequential
- Lost profits
- Available ONLY in addition to EXPECTATION
- NOT available for nonpayment breaches (only
general damages: unpaid $ + interest at the prevailing rate)
o Assumption you can just borrow $
o Exceptions
Insured sues insurer for bad faith refusal to
pay policy benefits
When k is a loan agreement
Limitations apply
Incidental
Must be reasonable both in terms of (1) whether expense should have been incurred and (2) how much the expense cost
Punitive
- NEVER for basic breach
o Society should not deter efficient breach - May be awarded for bad-faith or tortious breach (malice, oppression, fraud)
o Breaching fiduciary duty, fraudulent misrep,
intentional tort, etc
o Key factors
Character of D’s act (req deterrence or
punishment)
Nature and extent of harm to P
Wealth of D
o Proportionality: 9 to 1 ratio - Compensatory/nominal required first
Quasi Contract
Not attempt to k, attempted but failed k) [if no consideration – promissory estoppel – reliance damages]
o P performed services that benefitted D
o P did not intend for services to be free and
reasonably expected compensation for value of
services
o D would be unjustly enriched if D does not pay
for P’s services
Quantum Meruit
k exists but breached
o P performed services for D
o Rendered at D’s request
o Services conferred a benefit to D
Reformation
Meeting of minds, but written k has a mistake
Parties bound by k but terms reformed to what parties intended
o Elements
Existence of an agreement
Proper grounds for reformation
(mistake/scrivener’s error or
misrepresentation – unilateral mistake)
No defenses (equitable defenses and if
reformation would adversely affect bona fide
purchaser’s rights)
* NOT parol evidence, SoF, and negligence
Cts reluctant to change a written k so clear
and convincing evidence required
Recission
No meeting of the minds so parties released from k (back to before k)
o Elements
No meeting of the minds
Proper grounds for recission like any k
formation defense (mutual mistake, unilateral
mistake, misrep)
No defenses (equitable defenses and if
reformation would adversely affect bona fide
purchaser’s rights)
* NOT parol evidence, SoF, and negligence
Contract Specific Performance
Not available for personal service contracts (13th amendment prohibition of slavery)
* Instead cts issue a negative injunction to prevent from working for another
Contract Specific Performance - Sale
- Inadequate legal remedy
- Valid contract w/ definite and certain material terms
- Conditions are satisfied, and both parties are ready and able to perform
- Feasibility to enforce
- No defenses including both basic equitable defenses and underlying contracts-based defenses
o 3 equitable defenses (unclean hands, laches,
and acquiescence)
