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Remedies > REMEDIES OUTLINE BARBRI > Flashcards

REMEDIES OUTLINE BARBRI Flashcards

1
Q

In which types of questions do damages issues primarily appear?

A

Torts questions

Damages issues may also appear in Contracts questions.

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2
Q

What is a necessary element of a torts claim?

A

Damages

The defendant’s conduct must proximately cause the plaintiff’s damages.

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3
Q

What is the purpose of compensatory damages?

A

Restitution

Compensatory damages are intended to restore the plaintiff to their original position.

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4
Q

What are the two types of compensatory damages?

A

General and special damages

General damages refer to non-specific losses, while special damages refer to quantifiable losses.

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5
Q

What do general damages compensate for?

A

Pain and suffering

General damages include compensation for nonpecuniary loss, inconvenience, hardship, and mental and physical pain.

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6
Q

What types of pain and suffering are included in general damages?

A
  • Physical pain and suffering
  • Mental pain and suffering

Physical pain compensates for discomfort due to personal injury, while mental pain is recoverable only for intentional torts and torts causing emotional distress.

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7
Q

What type of damages is recoverable only for intentional torts and certain torts causing emotional distress?

A

Mental pain and suffering

This type of damage relates to the emotional impact of the injury on the plaintiff.

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8
Q

What must the defendant’s conduct do in relation to the plaintiff’s damages?

A

Proximately cause

This means that the defendant’s actions must be directly linked to the damages suffered by the plaintiff.

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9
Q

How do damages issues primarily appear?

A

Primarily in Torts questions

Damages issues can also appear in Contracts questions.

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10
Q

What must a defendant’s conduct do in a tort claim?

A

Proximately cause plaintiff’s damages

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11
Q

What are the two main types of damages in torts?

A

Compensatory Damages and Punitive Damages

Punitive damages are typically not covered in the provided text.

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12
Q

What is the purpose of compensatory damages?

A

Restitution

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13
Q

What are the two types of compensatory damages?

A

General and Special

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14
Q

What do general damages compensate for?

A

Pain and suffering

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15
Q

What does physical pain and suffering include?

A

Compensate nonpecuniary loss, inconvenience, hardship, mental and physical pain, discomfort, and anxiety experienced as a result of personal injury

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16
Q

What does mental pain and suffering accompany?

A

Personal injury

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17
Q

For which types of torts is mental pain and suffering recoverable?

A

Intentional torts and discriminatory torts

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18
Q

What is the primary focus of the Remedies Outline?

A

Non-monetary relief to which a successful party in a legal action is entitled.

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19
Q

What are examples of non-monetary remedies?

A
  • Injunction
  • Specific performance
  • Rescission
  • Reformation
  • Constructive trust
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20
Q

What is the original equitable jurisdiction vested in?

A

Superior courts.

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21
Q

What is the basic requirement for an equitable remedy?

A

Inadequate Remedy at Law.

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22
Q

When is an equitable remedy available?

A

Only when a remedy at law is unavailable, inadequate, or incomplete.

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23
Q

What does superior equity refer to in the context of equitable remedies?

A

Equitable remedy is available only to the party whose equities are superior.

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24
Q

What is the discretionary nature of equitable remedies?

A

The granting of an equitable remedy rests within the sound discretion of the court.

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25
Q

How are equitable remedies generally enforced?

A

By attachment of the person for contempt.

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26
Q

What is an injunction?

A

A court order directing a person to act or to refrain from acting.

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27
Q

What are the two types of injunctions mentioned?

A
  • Final injunction
  • Interlocutory injunction
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28
Q

What are the three factors needed to obtain an injunction?

A
  • Substantial threat of irreparable harm
  • Plaintiff’s hardship outweighs defendant’s hardship
  • Public interest will not be disserved
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29
Q

What is a Temporary Restraining Order (TRO)?

A

An injunction for a short period of time to preserve the status quo.

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30
Q

What is the maximum duration of a TRO issued without prior notice?

A

No more than 30 days.

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31
Q

What must a plaintiff show to obtain a TRO without notice?

A
  • Immediate and irreparable injury
  • Certification of efforts to notify the adverse party
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32
Q

What is the key difference between a Temporary Restraining Order and an Interlocutory Injunction?

A

A TRO can be issued without notice, while an Interlocutory Injunction requires notice and a hearing.

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33
Q

What must the plaintiff establish to obtain a prejudgment injunction?

A
  • Substantial threat of irreparable harm
  • Hardship balancing in plaintiff’s favor
  • Likelihood of success on the merits
  • Public interest not disserved
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34
Q

What is a final injunction?

A

A permanent injunction issued to prevent violation of the plaintiff’s rights.

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35
Q

What is a key requirement for obtaining a final injunction?

A

The plaintiff must show irreparable harm if the injunction is not issued.

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36
Q

What defenses can be raised against an injunction?

A
  • Laches
  • Unclean hands
  • Constitutional restrictions
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37
Q

What types of harms can an injunction address?

A
  • Harms to property interests
  • Harms to land
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38
Q

Can a plaintiff seek an injunction to prevent future trespass?

A

Generally, no, unless certain conditions are met.

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39
Q

What is required for a plaintiff to obtain an injunction against future acts?

A

A real and immediate threat that such acts will occur.

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40
Q

What is the role of a court in issuing injunctions?

A

The court must consider whether it is feasible to enforce the injunction.

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41
Q

What is the purpose of an interlocutory injunction?

A

To maintain the status quo until a final judgment is made.

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42
Q

What is the binding effect of a TRO or interlocutory injunction?

A

Binding only upon the parties to the action and those in active concert with them.

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43
Q

Under what conditions may a plaintiff not maintain a trespass action?

A

A plaintiff may not maintain a trespass action with respect to out-of-state real property.

Laslie v. Gragg Lumber Co., 193 S.E. 763 (Ga. 1937)

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44
Q

What can a plaintiff be entitled to in cases of intentional encroachment?

A

A plaintiff may be entitled to a mandatory injunction ordering the defendant to remove the encroachment.

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45
Q

What is the ‘disproportionate burden’ test?

A

The disproportionate burden test weighs the hardship on the defendant to remove the structure against the injury to the plaintiff from the denial of the injunction.

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46
Q

What is the legal remedy available when a defendant is wrongfully in possession of personal property?

A

The owner may seek to regain possession through an injunction.

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47
Q

What type of waste allows a property interest owner to seek an injunction?

A

A property interest owner is entitled to an injunction to prevent affirmative waste.

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48
Q

What must a plaintiff establish to seek an injunction for defamation related to business activities?

A

The plaintiff may seek an injunction when the defamation relates to the plaintiff’s business activities.

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49
Q

In a private nuisance action, can a plaintiff be denied an injunction if damages are considered an adequate remedy?

A

Generally, a plaintiff cannot be denied an injunction on the grounds that damages are an adequate remedy.

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50
Q

What is required for a court to grant specific performance?

A

The following requirements must be met:
* There must be a contract
* The contract terms must be sufficiently certain
* Conditions required for performance must be satisfied
* Damages must be inadequate
* Relief must be equitable
* Enforcement must be feasible.

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51
Q

What is the significance of a ‘time is of the essence’ condition?

A

A ‘time is of the essence’ clause is a condition precedent that requires obligations to be performed within a predetermined period.

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52
Q

What constitutes a unique property for the purposes of specific performance?

A

Unique property includes land or items with special value to the transferee, such as heirlooms.

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53
Q

What are some factors that can lead to the denial of specific performance?

A

Factors include:
* Sharp practices
* Mistake
* Hardship
* Inadequate consideration

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54
Q

What is the legal definition of waste in property law?

A

Waste is the transformation of property by a person rightfully in possession that detrimentally affects another’s interest in the same property.

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55
Q

What is the remedy for a plaintiff when a court denies an injunction for encroachment?

A

The plaintiff is usually entitled to damages.

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56
Q

True or False: An injunction can be granted for public nuisance when criminal punishment is inadequate.

A

True.

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57
Q

What must be established for an injunction regarding interference with a contract or prospective economic advantage?

A

The plaintiff must show that damages will usually be inadequate due to lack of certainty or uniqueness of opportunities.

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58
Q

What is required for an injunction against trade secret misappropriation?

A

The possessor of a trade secret is entitled to an injunction against misappropriation, in addition to damages.

59
Q

Fill in the blank: A plaintiff may seek an injunction when the defendant interferes with the plaintiff’s _______.

A

[easement rights]

60
Q

What is required for specific performance if the contract involves both goods and land?

A

The transfer of goods can be ordered even if damages would have been an adequate remedy for the goods.

61
Q

What legal remedy is available for harms to personal property?

A

The owner may seek an injunction to regain possession of the property.

62
Q

What is the general rule regarding damages and private nuisance actions?

A

A plaintiff generally cannot be denied an injunction on the grounds that damages are an adequate remedy.

63
Q

What are the three equitable defenses in contract law?

A

Estoppel, laches, and unclean hands.

64
Q

Under what conditions will a court not specifically enforce a promise?

A

If enforcement imposes disproportionate burdens on the court compared to the advantages gained and harm suffered.

65
Q

What type of contracts generally do not qualify for specific performance due to the need for continuous supervision?

A

Performance that entails long continuous supervision, such as a construction contract.

66
Q

Who is entitled to specific performance of a land sales contract?

A

Both the seller and buyer of real property.

67
Q

What happens when a seller cannot fully perform under a land sales contract?

A

Either party can seek specific performance with an abatement of the purchase price.

68
Q

What is equitable conversion?

A

A doctrine where the seller holds legal title and the buyer holds equitable title after a sales contract is entered.

69
Q

What lien does a seller have against the property in a land sale?

A

An equitable lien (vendor’s lien) to secure payment of the purchase price.

70
Q

Who bears the risk of loss in a land sale contract?

A

The buyer.

71
Q

What must a buyer do if the seller dies after the contract is executed?

A

The seller’s heirs must sell the property to the buyer.

72
Q

What is the effect of the buyer’s death on the contract?

A

The personal representative must pay the purchase price from the estate’s personal assets.

73
Q

Does equitable conversion occur in an option contract before it is exercised?

A

No, it does not occur until the option is exercised.

74
Q

What does the Statute of Frauds require for a contract for the transfer of land?

A

The contract must be in writing and signed by the obligor.

75
Q

Under what circumstances can a buyer seek specific performance for an oral contract under the Statute of Frauds?

A

If the defendant admits the contract exists or if the buyer has accepted full payment of the purchase price.

76
Q

What is the general rule regarding specific performance in personal property contracts?

A

Specific performance is generally not available unless the property is unique or of personal significance.

77
Q

What are the seller’s remedies under the UCC when the buyer has accepted the goods?

A
  • Action for price
  • Reclaim the goods under limited circumstances.
78
Q

What must a contract involving the disposition of property upon death include?

A

It must be express, in writing, and signed by the obligor.

79
Q

Can an employee force an employer to employ them?

A

No, specific performance is unavailable as damages are an adequate remedy.

80
Q

What is required for a covenant not to compete to be specifically enforced?

A

The restrictions must be reasonable in time, geographic area, and scope.

81
Q

What are the parties between whom a covenant not to compete may be enforced?

A
  • Employer and employee
  • Distributor and manufacturer
  • Lessor and lessee
  • Partnership and partner
  • Franchisor and franchisee
  • Seller and buyer of a business
  • Two or more employers.
82
Q

What is presumed reasonable for a durational restriction on competition for a former employee?

A

If it spans no more than two years after termination.

83
Q

What is the presumed reasonable duration for a restriction on competition for an owner or seller of a business?

A

No more than the longer of five years or the time period during which payments are made.

84
Q

What is required for a geographic restriction in a covenant not to compete to be reasonable?

A

It must include areas where the employer does business during the relationship.

85
Q

What is the standard for measuring a restriction on the scope of activities in a covenant not to compete?

A

It is measured by the business of the employer or the person in whose favor the covenant is given.

86
Q

What is a scope-of-activities restriction?

A

A restriction on the scope of competition measured by the business of the employer or other person in whose favor the covenant is given.

Ga. Code Ann. § 13-8-56(3)

87
Q

What is a customer nonsolicitation provision?

A

An agreement for an employee to refrain from soliciting the employer’s customers for a stated period after termination.

Ga. Code Ann. § 13-8-53(b)

88
Q

Is a nonsolicitation provision enforceable without a geographic area specification?

A

Yes, it is enforceable even without specifying a geographic area or types of products or services considered competitive.

Ga. Code Ann. § 13-8-53(b)

89
Q

What does a nondisclosure of confidential information provision entail?

A

An agreement to maintain information as confidential or as a trade secret need not be restricted by time or geographic area.

Ga. Code Ann. § 13-8-53(e)

90
Q

What can a Georgia court do if a covenant is too broad?

A

The court may strike the offending language and preserve the remainder of the parties’ agreement.

Ga. Code Ann. § 13-8-54(b)

91
Q

What is rescission?

A

The avoidance or unmaking of a contract, which may also apply to other property transfers.

Restatement (Third) of Restitution and Unjust Enrichment § 54

92
Q

What is a remedy that seeks a judicial declaration that an agreement is not enforceable?

A

Rescission.

Rescission may be due to absence of necessary contract elements.

93
Q

What distinguishes a void contract from a voidable contract?

A

A void contract is unenforceable from the beginning, while a voidable contract may be canceled at the option of one party.

Common challenges include fraud or mistake.

94
Q

What must be pled with particularity in fraud cases?

A

Fraud must be pled with particularity.

Ga. Code Ann. § 9-11-9(b)

95
Q

What is a condition precedent to bringing an action for rescission based on fraud?

A

The defrauded party must restore or offer to restore what was received from the contract.

Ga. Code Ann. 13-4-60

96
Q

When is restoration not required in fraud cases?

A

If restoration is impossible or unreasonable, or if the benefit was disposed of before discovering rescission grounds.

Crews v. Cisco Bros. Ford-Mercury, Inc.

97
Q

What rights does a seller have when a contract is rescinded for fraud?

A

The seller has the right to recover the goods.

Ga. Code Ann. § 13-4-61

98
Q

What types of mistakes can form the basis for rescission?

A

Both unilateral and mutual mistakes can form the basis for rescission.

Ga. Code Ann. § 23-2-31

99
Q

Can a mistake of law serve as grounds for rescission?

A

Yes, a mistake of law can serve as grounds for rescission.

Ga. Code Ann. § 23-2-21(b)

100
Q

What happens if a mistake results from negligence?

A

The mistaken party is generally not entitled to equitable relief.

Ga. Code Ann. § 23-2-29

101
Q

What may a party do if there is material nonperformance of a contract?

A

The party may rescind the contract.

Ga. Code Ann. § 13-4-62

102
Q

What can a seller do if the buyer wrongfully rejects goods?

A

The seller may cancel the contract.

Ga. Code Ann. § 11-2-703(f)

103
Q

What effect does affirmation of a contract have after learning of grounds for rescission?

A

Affirmation bars rescission.

Aliabadi v. McCar Dev. Corp.

104
Q

What is restitution?

A

A remedy for unjust enrichment at the plaintiff’s expense.

Restatement (Third) of Restitution and Unjust Enrichment § 1

105
Q

What must a plaintiff do to recover in restitution?

A

The plaintiff must have conferred a measurable benefit on the defendant.

Restatement (Third) of Restitution § 1 cmt. d

106
Q

What makes a defendant’s retention of a benefit unjust?

A

The benefit was wrongfully acquired or retained through theft, fraud, or undue influence.

Stoker v. Bellemeade, LLC

107
Q

What is specific restitution?

A

A remedy to compel the return of a benefit conferred by mistake.

Restatement (Third) of Restitution § 9

108
Q

What is a constructive trust?

A

A judicially created equitable remedy to recover specific property from the holder who has been unjustly enriched.

Restatement (Third) of Restitution § 55

109
Q

What are the requirements to secure a constructive trust?

A

Defendant holds title, retention violates equity, and legal remedy is inadequate.

Ga. Code Ann. § 53-12-132

110
Q

Can a constructive trust be imposed on property acquired by a defendant for wrongfully acquired property?

A

Yes, it can be imposed on property acquired in exchange for the wrongfully acquired property.

Restatement (Third) of Restitution § 58(1)

111
Q

What happens if a defendant is insolvent regarding a constructive trust?

A

The plaintiff may lack an adequate legal remedy if the defendant is insolvent.

Adams v. Smith

112
Q

What is a constructive trust?

A

A constructive trust is an equitable remedy imposed by a court to prevent unjust enrichment when a party wrongfully holds property that should belong to another.

It is often used when the original owner of the property cannot recover it through legal means.

113
Q

Under what condition will a court impose a constructive trust?

A

A court will impose a constructive trust if the plaintiff does not have an adequate legal remedy.

This is often due to the defendant’s insolvency.

114
Q

What contractual violation can lead to the imposition of a constructive trust?

A

A constructive trust may be imposed on property transferred in violation of a contract regarding its disposition upon death.

Examples include contracts to make or not revoke a will.

115
Q

What is the effect of a constructive trust?

A

The plaintiff gains ownership of the property itself without being accountable for changes in its value during the defendant’s ownership.

This means the plaintiff is not liable for any increase or decrease in value.

116
Q

What are defenses against a constructive trust claim in Georgia?

A

Defenses include waiver by ratification or long acquiescence.

These defenses are specified in Ga. Code Ann. § 53-12-132(b).

117
Q

Define an equitable lien.

A

An equitable lien is a judicially created remedy that imposes a lien on the defendant’s property as security for the plaintiff’s restitution claim.

It recognizes the plaintiff’s claim against unjust enrichment.

118
Q

What are the requirements for an equitable lien?

A

The requirements for an equitable lien are similar to those for a constructive trust, focusing on unjust enrichment related to the property.

A plaintiff may claim an equitable lien for services that improve the defendant’s property.

119
Q

What is the effect of an equitable lien?

A

The plaintiff has a lien on specific property, giving priority over the defendant’s unsecured creditors.

This allows the plaintiff to secure their claim against the property.

120
Q

In what situation might a plaintiff choose between an equitable lien and a constructive trust?

A

A plaintiff may choose based on whether the property value has risen or fallen.

An equitable lien is preferable if property value has declined, while a constructive trust is better if it has increased.

121
Q

What is subrogation?

A

Subrogation is a remedy that allows a plaintiff to assume the rights of a creditor or lienholder when their property discharges an obligation on the defendant’s property.

It is also known as an ‘equitable assignment.’

122
Q

What are common situations where subrogation arises?

A
  • Payment by a surety of another’s debt
  • Fraudulent acquisition of money by the defendant to satisfy their debt

These situations demonstrate unjust enrichment through discharge of obligations.

123
Q

What is reformation?

A

Reformation is an equitable remedy that involves judicial rewriting of an agreement to reflect the true intent of the parties.

It can be applied to contracts or trust instruments.

124
Q

What is required for a contract to be reformed?

A

The parties must have previously entered into an agreement.

Reformation cannot create an agreement where one does not exist.

125
Q

What type of mistake can lead to reformation?

A

Reformation can occur due to mutual mistakes regarding content or effect of the writing.

Common mistakes include scrivener’s errors or misunderstandings of legal effects.

126
Q

Who may seek reformation of a contract?

A

Any party to the contract, intended beneficiaries, or successors-in-interest may seek reformation.

This broadens access to correcting agreements.

127
Q

What defenses exist against reformation?

A
  • Good-faith purchaser’s rights
  • Negligence of the party seeking reformation
  • Statute of limitations

These defenses can limit or prevent reformation of a contract.

128
Q

What does a writ of ne exeat do?

A

A writ of ne exeat restrains a person from leaving the jurisdiction of the state.

It is used in specific situations involving obligations or interests in property.

129
Q

What is a quia timet action?

A

A quia timet action seeks to protect an interest in land by canceling an instrument that affects the complainant’s title.

It can address present annoyances or future liabilities.

130
Q

What is the purpose of a quiet-title action brought under the statutory ‘conventional quia timet’ provision?

A

To cancel an instrument that casts a cloud over the complainant’s title or subjects them to future liability or present annoyance.

The instrument may be invalid on its face or due to other facts beyond the instrument itself.

131
Q

What does ‘quia timet against all the world’ allow a claimant to do?

A

Establish title to land and remove any cloud upon title to land that makes it unmarketable.

Any person claiming a freehold estate in land or an estate for years with at least five years remaining may bring this in rem proceeding.

132
Q

Define a bill of peace.

A

An equitable remedy available to confirm a right previously established by more than one legal trial or to avoid a multiplicity of actions.

It is recognized by statute in Georgia but has been largely supplanted by other procedural devices.

133
Q

What is the distinction of equitable interpleader in Georgia?

A

It applies when a person possesses property or funds to which more than one person lays claim, making it doubtful or dangerous for the holder to act.

Unlike federal statutory interpleader, the stakeholder cannot advance a claim to the subject matter of the action.

134
Q

What typically determines the rights and remedies of a creditor?

A

Whether the creditor has a security interest in the debtor’s property.

Unsecured creditors generally cannot seek equitable relief unless they have reduced their claim to judgment.

135
Q

What is required for a party to obtain a declaratory judgment?

A

There must be an actual controversy regarding a legal right or status that can be resolved by the judgment.

This may involve the construction of a will or membership in a class for estate administration.

136
Q

What is a trover action in Georgia?

A

A legal action to obtain the return of personal property or damages for its wrongful taking or retention.

It encompasses replevin and detinue actions.

137
Q

What is the general measure of damages in an ejectment action?

A

The value of the use of the land, also known as its rental value.

This includes mesne profits, which are profits derived from the defendant’s use of the land.

138
Q

What is a writ of mandamus?

A

A legal order to compel a public officer to perform a ministerial act they have a clear duty to carry out.

It cannot be used to undo an action that has already been taken.

139
Q

What does a writ of prohibition do?

A

It restrains subordinate courts from exceeding their jurisdiction when no other legal remedy is available.

It is not generally available for acts by public officials unless they act as a judicial tribunal.

140
Q

What is the ‘election of remedies’ rule?

A

A plaintiff cannot pursue a remedy inconsistent with one already chosen.

For example, affirming a contract procured by fraud precludes subsequent rescission.

141
Q

What is the doctrine of ‘unclean hands’?

A

A plaintiff is denied equitable relief when they have engaged in serious misconduct closely related to their claim.

This misconduct must be unethical or immoral but does not necessarily need to have caused injury to the defendant.

142
Q

What is laches?

A

The denial of equitable relief due to unreasonable delay by the plaintiff in pursuing a remedy, causing prejudice to the defendant.

It is applied similarly to the statute of limitations for legal actions.

143
Q

What are the elements required to establish equitable estoppel?

A
  1. Intentional or grossly negligent deception
  2. Misleading of another party
  3. Resulting injury to the other party

This prevents a party from denying representations they made and that another party reasonably acted upon.

Remedies (5 decks)

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