Remedies2

Question 1

CONSTRUCTIVE TRUST 
[Equit. Restitution R to prevent UE]
P must SHOW ...:
[GR: if Pr value goes UP => Yes CT.  
If DOWN, Or a CT is unavail. 
(b/c excessive /Pr not traceable to P's Pr) 
=>No CT but: Equitable LIEN (see)]

Answer 1

1) D IMproperly acquired title to P's Pr
[CA: D improves his own Pr w/ P's Pr]
2) INadequate LEGAL Remedy 
[D is insolvent /CT: Pr=Unique].
3)*=>To prevent UE, Ct. will impose CT 
& require D (=“Trustee”) to transfer title to P.
4) Tracing allowed. CA: If not possible =>Only Equit Lien allowed.
5) If D transfers legal title to a BFP: 
cuts off P's Equitable Rights.
6) P prevails over unsecured C'ors

Question 2

EQUITABLE LIEN: If so, …+CA:

[Equitable Restitution to prevent UE]

Answer 2

Same as CT, except: 
3)*Ct imposes a SI in D's Pr 
=>allowing a FORCED Sale 
\+ PROCEEDS goto P 
\+any DEFICIENCY judgment.

Question 3

RESCISSION … +CA:

[“Good Dog”]

Answer 3

1) GROUNDS for Rescission
[K. formation problems (MMM)]:
a) MUTUAL MAT. M. that AFFECTS the BASIS of the Bargain.
(CA: Minor =Collateral mistake]
b) UNILAT. Mistake iff: non-mistaken party (had reason to) knew of the other’s Mist.
c) MISrepres. =Fraud: if P RELIED.
2) +No EQUITABLE DFNs [see]

Question 4

If P 1st sues for DMG, and then for RESCISSION:

Answer 4

NO RESCISSION available b/c P is DEEMED having AFFIRMED the K.

Solution: Proceed with BOTH Theories, until P MUST ELECT a REMEDY before the judgment.

Question 5

REFORMATION is … + Rule +CA:

[“Very Good Dog”]

Answer 5

an Equitable Remedy: Ct. REWRITES a K to conform to parties’ ORIG. INTENT if there's a:
1) VALID orig. K.
[CA: Voidable].  
2) GROUNDS for Reformation
3) +NO EQUITABLE DFNs [see]

Question 6

**PRELIMINARY Injunction
is issued after a notice & hearing.
PURPOSE: PRESERVE the Status Quo pending a full TRIAL on the merits.

P must show …:

Answer 6

1) IRReparable INJURY will result
(+inadequate legal remedy [see])
2) LIKELIHOOD of success on the MERITS [>50%]
3) *INJURY GREATLY OUTweighs harm to D Or Public [P’s hardship/benefit v. D’s inconv. /Econ. Survival
CA: Willful => No balancing]
[+4) Post a BOND (to reimburse D if inj. is wrongfully granted +causes harm to D)].

Question 7

TRO
[PURPOSE of Relief: to PRESERVE the Status Quo pending the Prelim. INJ. Hearing].
P must show all elements of a Prelim. inj. except:

Answer 7

1) No BALancing of the Hardships is required
[D is not there]
2) Ex PARTE proceeding is OK =>NO NOTICE, just GF Attempt.
3) canNOT exceed 10d.
[Fed.14d =>move for Prelim.INJ]

Question 8

**PERMANENT Injunction is
1) a Mandatory or Negative DECREE
to (refrain from) doing s.th.
2) issued POST-Trial on the merits
3) & usually coupled w/ money DMG
for injuries prior to obtaining judgment.
P MUST SHOW [“I BEN”] …:
[“Ct. will conclude as above”]

Answer 8

1) IRRep. injury/inadeq. legal remedy
[DMG Specul. /D Broke /Multiplicity
/D runs away w/ chattel =No Replevin 
/Sheriff won’t act =No Ejectment]
2) **Bal. of Hardships incl. Public’s interest 
3) FEASIBILITY of Enforcement:  
[Ct orders simult. perf.=supervises K.
CA: Mandatory inj.=problem if difficult to supervise /enforce [ooS D]]
4) CA: Equitable/Constit. DFN [see]

Question 9

Equitable / Constitutional DFNs to

PERMANENT Injunction:

Answer 9

1) UNclean hands:
P is guilty of misconduct concerning the transaction
2) LACHES: unreas. +prejudicial
(=>consider awarding DMG instead)
3)**Free speech:
Ct will NOT enjoin conduct /speech protected by 1st AM [“equity will not enjoin a pers. defamation”]
4) Impossibility: for D to carry out the terms.

Question 10

SPECIFIC PERFORMANCE
[Cha Chs Is My Favorite Dance]
is: a Mandatory DECREE that orders D to perform under the terms of the K. P must show …:

[“D will raise the same equit. DFN as above”]

Answer 10

1) K. is Valid (defin.&certain terms)
2) CONDITIONS been perf. by P
[(see) or /P is read &able /Excused]
3) INadeq. legal rem. [see +Unique Pr. No UE=No restitution)
4) MUTUALITY of Performance:
Ct must ensure P will counterperf.
5) FEASIBIL. of Enf. [CA: pers.serv.K]
6) No equitable DFN (see prelim. inj.)
[CCA:*Part Perf. satisf.SOF=yes SP]

Question 11

Personal Services K:

Answer 11

SP is UNavailable in pers. service Ks b/c it would be tantamount to INVOLuntary servitude.

Question 12

DFN to SP - LACHES:

Answer 12

P’s INACTION /”sitting on his hands” BARs P’s Recovery

[/request for SP].

Question 13

DFN to SP - UNCLEAN HANDS:

Answer 13

P’s MISCONDUCT concerning the transaction BARs

P’s Request for SP.

Question 14

DFN to SP - MISTAKE:

Answer 14

Mistake [Mutual /Unilateral iff…]

Question 15

DFN to SP - UNconscionability

Answer 15

Unconscionability @ formation

Question 16

DFN to SP - MISrepresentation:

Answer 16

A person canNOT be compelled to perform if his AGT was obtained by:

1) Misrepresentation
2) Concealment, or
3) UNfair practices.

Question 17

DFN to SP - Equitable Conversion:

Answer 17

Transfer of title to a BFP cuts off P’s right to SP and limits P’s CoA and DMG to breach of K.

Question 18

DFN to SP - ELECTION of Remedies:

Answer 18

When P recovers full payment from 1 of 2+ JOINT tortfeasors
(whether by Settlement or Payment of a judgment)
there is a SATISFACTION; and P may not recover further against any OTHER joint tortfeasor.

Question 19

SP: CONDITIONS have been perf. by P:

1) Deficiency in the Qty of land: …
2) “Time is of the essence” …

Answer 19

1a) Seller: can enforce K w/ minor deficiency. CA: Major.
1b) Buyer: can enforce a K w/ a major defect. CA: Very Major
Note: If you grant SP: Abate the purchase $
2a) Equity abhors forfeitures.
2b) Award SP
2c) Modern trend: Grant P Restitutionary relief if no SP.