Remedies Rule Statements

Question 1

Tort - Compensatory Damages

Answer 1

Money paid to P for loss or injury designed to put P in the place should would have been in had the injury not occurred. To recover damages in tort, the plaintiff must demonstrate:

i) actual causation,
ii) proximate causation, that is, that the injury was foreseeable,
iii) certainty, that is, that damages are not too speculative (for economic losses), and
iv) unavoidability, that the plaintiff took reasonable steps to mitigate the damages

Question 2

Tort - General vs. Specific Damages

Answer 2

General damages compensate for foreseeable losses, such as pain and suffering, whereas special damages compensate for losses that are not necessarily foreseeable (such as lost wages) as long as they are specifically pleaded.

Question 3

Torts - Compensatory Damages Form of Judgement

Answer 3

WRITE THIS:

“The judgement must be a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern rule.)”

Question 4

Torts - Punitive Damages

Answer 4

Punitive damages are awarded to punish a defendant for wanton, wilful, or malicious conduct. Generally, punitive damage are only available for intentional torts, although occasionally they may be available following recklessness.

To recover punitive damages, a plaintiff must show

1. that the plaintiff has been awarded compensatory or nominal damages
2. defendant’s fault is greater than negligence, and
3. the punitive damages are proportional in amount to the actual damages

Question 5

Tort - Restitutionary Remedies

Answer 5

Restitutionary remedies are available where the defendant has obtained a benefit, and allowing the defendant to retain that benefit would be an “unjust enrichment.”

The goal is to restore the defendant’s unjust gain to the plaintiff

Question 6

Torts - Replevin

Answer 6

Replevin is a legal remedy that permits a plaintiff to recover, before trial, possession of a specific chattel. The P must establish:

i) plaintiff has a right to possession, and
ii) wrongful withholding by D

Plaintiff will have to post a bond when their chattel is returned. D can defeat immediate recovery by posting a redelivery bond, which allows D to keep chattel until after trial.

Question 7

Torts - Ejectment

Answer 7

Legal remedy to restore possession of real property from which P was wrongfully ousted. P must show:

1) P has right to possession
2) wrongful withholding by D

Question 8

Torts - Constructive Trust

Answer 8

Equitable restitutionary remedy that imposes a trust on property a defendant improperly acquired to which the D has title. This equity creates a trust and D, as trustee, must return property to P. P must show:

1. D has title to property and acquisition of title can be traced to property D wrongfully acquired
2. D’s retention of property would result in unjust enrichment, AND
3. P has no adequate remedy at law (think: D’s insolvency, unique property)

Question 9

Provisional Remedy - Preliminary Injunction

Answer 9

Preserve the status quo between parties until full trial on the merits can be held.
P must show:
1. irreparable injury before trial can be held
2. likely to prevail on the merits

“prelim Inj. imposed after notice and a regular, adversary-type court hearing”

Question 10

Provisional Remedy - TRO

Answer 10

Where irreparable harm will occur before a hearing on a preliminary injunction, a TRO may be sought.

“A TRO is an emergency order imposed to maintain the status quo until a regular, adversary-type hearing may be held on a motion for preliminary injunction”

“A TRO can be granted without notice to the nonmoving party if the moving party can make a strong showing as to why notice and an adversarial hearing should not be required”

“Moving party must prove that 1) he will suffer irreparable injury before a prelim. inj. can be obtained and 2) a likelihood that he will succeed on the merits of his underlying claim”

Question 11

Torts - Permanent Injunction

Answer 11

To obtain a permanent injunction, P must show:

1. Inadequacy of legal remedy
2. feasibility of enforcing the decree (mandatory vs. negative)
3. balancing of hardships
4. overcome any defenses (unclean hands, laches, impossibility, freedom of speech)

Question 12

Contracts - Compensatory Damages

Answer 12

Compensatory damages are monetary awards to protect P’s expectation interest and place P in the position P would have been in had the contract been performed.

“The purpose of compensatory damages is to give compensation for the breach, I.e., to put the nonbreaching party in the position he would have been in had the promise been performed.”

Benefit of the bargain: also known as expectation damages, awards the different between market price and contract price

“Expectation damages are a type of compensatory damages measured by the benefit of the bargain”

Question 13

Contracts - Punitive Damages

Answer 13

Punitive Damages are not available in contracts cases

Question 14

Contracts - Restitutionary Remedies

Answer 14

An obligation to pay for unjust gain received. Where the contract is materially breached, the nonbreaching party can recover the value of their performance

Question 15

Contracts - Specific Performance

Answer 15

Specific performance is a mandatory decree or injunction that orders a contracting party to perform what they would have been promised to perform under their contract. For a P to obtain specific performance, they must show:

1. Contract was valid w/ definite and certain terms
2. P has performed or is ready and able to perform all of their conditions under the contract
3. Legal remedy is inadequate (speculative damages, D insolvent, unique)
4. Enforcement is feasible (court has jdx over D or property, not for services)
5. No defenses apply (laches, SOF, hardship, unclean hands, unconscionability, mistake and misrepresentation that results in hardship or is basis for rescission)

Note on SOF: if one renders 1) valuable part performance 2) in reliance on contract, case is out of SOF and specific performance can be granted

Question 16

Contracts - Rescission

Answer 16

Rescission cancels the contract where it results from mistake, misrepresentation, fraud, duress, or where the contract is materially breached.

usually accompanied by restitution of benefits conferred

“Rescission allows a plaintiff to wipe out the contract and restore the status quo prior to the contract so long as the D does not have any legitimate defenses. Both fraudulent misrepresentation and innocent misrepresentation are grounds for rescission if the misrepresentation occurred at or before the time the contract was entered into”

Question 17

Contracts - Rescission based on Mistake

Answer 17

Rescission is available for mutual mistakes affecting the basis of the bargain (e.g., nature of subject matter)

Rescission is unavailable for unilateral mistakes unless the other party knew or should have known of the mistake going to basis of bargain

Question 18

Contracts - Rescission Defenses

Answer 18

Laches, unclean hands, Election of remedies (damages and rescission inconsistent - P must first seek rescission), estoppel theory where P through words or conduct affirms contract

Question 19

Contracts - Reformation

Answer 19

Reformation is an equitable remedy for modifying a written instrument to reflect the parties’ original understanding. There must be:

1. Valid original contract
2. Grounds for reformation (mutual mistake, unilateral mistake with actual knowledge), fraud, misrepresentation)

Defenses: laches, unclean hands, sale of subject matter to BFP

Question 20

Contracts - Anticipatory Repudiation

Answer 20

“Anticipatory repudiation occurs when a promisor, prior to the time set for performance of his promise, indicates that he will not perform when the time comes. If there is an executory (unperformed on both sides) bilateral contract between the parties and the promisor’s anticipatory repudiation is unequivocal, the nonrepudiating party can treat the anticipatory repudiation as a breach and sue immediately”

“if the nonrepudiating party has already fully performed, he must wait until the time originally set for performance because the repudiating party may withdraw her repudiation and perform in accordance with the contract.

“An executory bilateral contract is one with unperformed duties on both sides:

Question 21

Hardship Defense

Answer 21

“To prevail on a defense to hardship, the defendant must show that there was inadequacy in consideration, marked inequality between the parties, and unfair advantage exercised by the plaintiff.”

Question 22

Replevy - Art 2 UCC Sale of Goods

Answer 22

Under Art 2 of the UCC, a buyer who has made at least partial payment may replevy goods from seller if the goods were purchased for personal, family, or household goods.

Question 23

Contracts - Consequential Damages

Answer 23

In addition to expectation damages, consequential damages may be available.

Consequential damages are a special type of expectation damage that are losses above and beyond expectation damages resulting from a breach that a reasonable person would have foreseen at the time of entry into the contract (e.g., lost profits)

“consequential damages cannot be speculative”

Question 24

Unclean hands Defense

Answer 24

Unclean hands is a defense where the P is guilty of some inequitable or wrongful conduct regarding the same transaction as to which she is presently suing the D

Question 25

Election of Remedies Defense

Answer 25

Under the defense of election of remedies, the general rule is that the remedy of damages for fraud and that of rescission of the contract based on fraud are inconsistent, since an election to seek damages affirms the existence of the contract, if P first seeks to rescind contract, action is not a bar for subsequent suit for damages, but if P files suit for damages, its an affirmance of contract and bar to later suit for rescission

Question 26

Misrepresentation Defense

Answer 26

“A person cannot be compelled to perform if his assent to the contract was obtained by other party’s misrepresentation, concealment, circumvention, or unfair practices”