Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

REMEDIES - Combined Study > REMEDIES GENERAL KNOWLEDGE > Flashcards

REMEDIES GENERAL KNOWLEDGE Flashcards

1
Q

Can a legal vs. equitable Restitutionary remedy be difficult to ascertain?

A

Yes. Whether a Restitutionary claim is Legal or Equitable can be difficult to ascertain from the ‘form’ of the remedy alone.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Restitution can be what of 3 things?

A
  1. Legal
    a. Money
    b. Return of property
  2. Equitable
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are Legal Damages?

A

Are a Legal Remedy awarded to make a plaintiff whole (Bk739)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the 2 Types of COMPENSATORY Damages?

A
  1. General
  2. Special
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What are the Issues that can limit Compensatory Damages?
(Hint: C-F-C-U)

A
  1. Causation
  2. Foreseeability
  3. Certainty
  4. Unavoidable
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Unavoidable = Avoidable Consequences Doctrine (as one of the limits of Compensatory Damages)

A

A plaintiff has a duty to take reasonable steps to mitigate his losses. (Bk741)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What are General Damages? (Remedy at Law)

A

Are noneconomic losses directly attributable to the tort that all plaintiffs would have because they Flow as a Natural result of the tort
(Ex. pain and suffering, disfigurement, etc.) (Bk741)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What are Special Damgages

A

Damages that are specific to the plaintiff.
(Ex. medical bills, lost wages, etc.) (Bk742)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

When calculating General and Special damages, one must account for what?

A

Both past and future damages. (Bk742)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Examples of how to Measure Damages in Tort

A
  1. Fair market value of a lost item (conversion);
  2. Compensation for loss of use of an item for the time period of deprivation (trespass to chattel);
  3. Pain and suffering;
  4. Lost wages;
  5. Other similar damages measures for torts such as Negligence. (Bk742)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Pure Economic Loss

A

The tort of Intentional Interference with Business Relations is the only tort that will allow for Pure Economic Loss Recovery. (Bk742)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Nominal Damages

A

The plaintiff sustained no loss, but their rights have been violated. (Bk742)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Punitive Damages

A

Awarded where the defendant has displayed Willful, Wanton, or Malicious tortious conduct. (Bk742)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Legal Remedy Damages =

A

Compensatory / Nominal Damages / Punitive Damages /

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

General Damages

A

Damages that naturally flow from the result of the tort. (Bk741)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

There is Legal Damages and Legal Restitution

A

*Make sure you understand that Legal Damages in Tort has this breakdown on the Legal Damages side of things.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

The Legal Restitution of Money Restitution is measured by…

A

The defendant’s gain. (Bk743)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Election of Remedies

A

A plaintiff can elect to recover either one of the two Legal Remedies (Compensatory or Money Restitution), But Not Both! (Bk743)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What points do you want to make about General Damages?

A

-Attributable to All plaintiffs;
- Do not need to be specifically pleaded
-Those damages that Naturally Flow from the tort.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Special Damages are…

A

Unique to the plaintiff
-Need to be specifically pleaded

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What can a person get from an Ejectment Action (2 things)

A
  1. Restoration of the property to the plaintiff
  2. Can receive damages for the time he was deprived of his real property. (Bk743)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is the goal of an EQUITABLE RESTITUTION?

A

To prevent unjust enrichment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Equitable Restitution is only available when?

A

Available only when the Remedy at Law is Inadequate.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is a Constructive Trust?

A

A Legal fiction created by the court to Compel the defendant to Convey Title to unjustly retained specific property to the plaintiff and restores the property to the plaintiff that has been wrongfully acquired by the defendant. (Bk743)

25
Q

What is the sole obligation of the Constructive Trustee Defendant?

A

Is to transfer the property back to the plaintiff.

26
Q

What does a Constructive Trust require

A
  1. A Wrongful Act;
  2. Defendant has legal title to convey;
  3. Inadequate Legal Remedy
27
Q

EXAM TIP for Inadequate Legal Remedy

A

Inadequate Legal Remedy is an element in may remedies issues. In an essay, always discuss All of the reasons the legal remedy of money damages is inadequate under the fact pattern given. (Bk744)

28
Q

Unjust Enrichment + Policy judgment

A

Court is making a policy judgment on what is fair

It is the Defendant’s Gain v. Plaintiff’s Loss

-How much gain defendant should be required to Disgorge.

29
Q

What are Exemplary Damages?

A

Punitive Damages

30
Q

TRO/Injunction Fact Pattern Triggers

A

-P seeks to protect a car from being shipped out of the country
-P seeks to prevent a person from selling an item (car, rate tomatoes, lakefront property)
-P seeks to prevent a company from selling a product to someone else
-P seeks to prevent construction of buildings or structures (water dam)
-P seeks to prevent an alleged nuisance
-P seeks to prevent a competitor business from operating
-P seeks to prevent a rehab center from opening in their neighborhood
-P seeks to prevent the sale of land to another.

31
Q

Elements for a Permanent Injunction
“I
Pray
For
Bigger
Desserts”

A

-Inadequate Legal Remedy
- Property Interest
- Feasibility of Enforcement
- Balancing of Hardships
-Defenses = No

32
Q

Laches

A

Provides a defense where Plaintiff has unreasonably delayed resulting in prejudice to Defendant. (Bk748)

33
Q

EXAM TIP
Inadequate Legal Remedy is an many Remedies issues. …

A

In an essay, always discuss all of the reasons the Legal Remedy of ‘money damages’ is inadequate under the fact pattern given. (Bk744)

34
Q

A TRO requires…

A
  • Irreparable Harm (during the waiting period)
  • Likelihood of Success on the Merits
  • Inadequate Legal Remedy
    (Money damages too speculative, money damages may be inadequate, insolvent defendant, replevin or ejectment is unavailable, multiplicity of suits)
35
Q

What does a TRO preserve?

A

Preserves the status quo

36
Q

What does a Preliminary Injunction preserve?

A

Preserves the status quo pending a full trial on the merits. (BK)

37
Q

What does a Temporary Injunction preserve?

A

Preserves the status quo for a short time pending further litigation. (Bk)

38
Q

Can a Preliminary Injunction be ‘ex parte’?

A

A preliminary injunction can Never be ex parte.

**A Temporary Injunction Can be ex parte.

39
Q

Elements for a TRO/Preliminary Injunction
Irish-Lads-Inhale-Beer-in-Dublin

A

-Irreparable Harm

  • Likelihood of Success on the Merits
  • Inadequate Legal Remedy (7 reasons why)

-Balancing of the Hardships must favor the Plaintiff

-Defense = No

40
Q

What are General Damages?

A
  • Those damages that naturally flow from…
    -Defendant is put on notice that they will be claimed
  • Need not be specifically pleaded.
41
Q

Equity Acts in Personam

A

This means an equity court must have personal jurisdicton over the subject matter and person (Flem3)

42
Q

Lively Cats Find Mice Darn Nice
Equitable remedies are only available if the law remedies are Inadequate

A

L - Land
C - Chattel
F - Fiduciary Relationship
M - Multiplicity of Suits
D - Damages are too speculative
N - Legal Remedy NOT available (Flem4)

43
Q

Pre-Judgment Interest

A

Is the market, or in the case of legal rate, the legislative evaluation of the “Use Value of Money’ (Rendleman 153)

44
Q

What does a judge use to enforce an injunction?

A

A judge uses Contempt, to enforce an injunction. (Rendleman 290)

45
Q

Detinue

A

Developed from ‘writ of debt’ as a distinct form of action for the wrongful detention of a specific bailee. (Rendleman 6)

46
Q

Marketable Title

A

Marketable Title is title free form reasonable doubt about the seller’s ability to convey what he purports to convey.

There is an implied promise in every land sale contract that the seller covenants to transfer Marketable Title at the time of closing.

(Bk661)

47
Q

Ouster

A

Occurs when a co-tenant claims an exclusive right to possession and refused occupancy of his co-tenant. (Bk 659)

48
Q

Land Sale Contract

A

The contract for a conveyance of an interest in real estate typically governs the agreement until the time of closing, at which time the deed becomes the Marketable Title is title free form reasonable doubt about the seller’s ability to convey what he purports to convey. operative document. (Bk 659)

49
Q

PAST PERFORMANCE EXCEPTION to Statute of Frauds (SOF)

A

“PIP”
P - Possession of the land by the purchaser
I - Substantial Improvements are made
P - Payment for either part or all of the purchase price. (Bk 661)

50
Q

Specific Performance

A

Specific performance is a remedy. When the court grants specific performance, it orders the breaching party to do what the breaching party promised to do in the contract.

(Cali)

51
Q

What is the Black Letter Law on Specific Performance?

A

The black letter law is that specific performance will not be awarded when money damages would be adequate. (Cali)

52
Q
A
53
Q

A party seeking specific performance has to allege what?

A

that the remedy at law is not adequate. (Cali)

54
Q

Multiplicity of Suits, aka

A

Continuing tort.
(Flem 6)

55
Q

Reliance Damages

A

Seek to put the plaintiff in the same position he would have been in had the contract never been made. (Bk)

56
Q

Incidental Damages

A

Include those cost reasonably incurred when the other party is in breach.
(Ex, storage, transportation costs)
(Bk )

57
Q

Consequential Damages

A

Are those damages that seek to compensate for damages that are a direct and foreseeable consequence of the contract not being performed and are found in additional to expectation damages. (Bk 752)

58
Q

Expectation / Compensatory
Damages

A

In contract compensates plaintiff for the value of the benefit plaintiff expected to receive from the contract.
(Bk 752)

REMEDIES - Combined Study (2 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions