Remedy 1-37 Flashcards
What legal remedies are available for a breach of contract?
Expectation damages
Reliance damages
Consequential damages
Incidental damages
Restitution damages
*Punitive damages are generally NOT available.
Priority: HIGH
What are Expectation Damages?
When are they available?
Damages that arise directly from the breach, and are an attempt to put the non-breaching party in the same position it would have been in but for the breach.
To recover, damages must be:
Caused by the defendant;
Foreseeable;
Certain; AND
Unavoidable.
Priority: HIGH
What are Reliance Damages?
When are they available?
The expenditures made by a party in reliance of the contract and are an attempt to put the non-breaching party in the position it would have been if the contract never existed.
Available when:
Plaintiff acted in reliance on the defendant’s agreement to perform; AND
The plaintiff’s reliance was foreseeable.
Priority: HIGH
What are Consequential Damages?
When are they recoverable?
Damages that arise indirectly from the breach and are awarded because of the injured party’s special circumstances.
To recover, damages MUST be:
Reasonably foreseeable at the time of contract formation;
Arise from the plaintiff’s special circumstances that the defendant knew or had reason to know of; AND
Reasonably certain(not speculative).
Priority: HIGH
What are Incidental Damages?
The reasonable costs incurred as a result of a breach of contract (i.e. costs of returning non-conforming goods).
Priority: HIGH
When is Restitutionawarded?
It is awarded to prevent unjust enrichment, and is available when one party confers a benefit onto another party.
Damages = based on value of benefit conferred.
Priority: HIGH
When will Liquidated Damages be enforced?
If:
The amount of damages is difficult to estimate at the time the contract was formed; AND
The amount is reasonable to the actual damages suffered.
Priority: Low
What are the damages for breach of a land sale contract?
Any amount paid;
The difference between the fair market value at the time of the breach and the contract price;
Expenses incurred in investigating title and preparing necessary paperwork;
Expenses incurred in preparing to occupy the land;
Possible consequential damages; AND
Interest.
Priority: Medium
UCC Seller’s Remedies / Damages
Under the UCC, what remedies does a seller have if a buyer breaches a contract for the sale of goods?
Withhold delivery of the goods;
Cancel;
Recover cover damages;
Recover market damages;
Recover lost profits if the seller is a lost volume seller;
Stop delivery of the goods when he discovers buyer is insolvent;
Stop delivery of a truckload when buyer breaches; OR
Replevy identified goods.
Priority: Low
UCC Buyer’s Damages
Cover Damages
vs.
Market Damages
vs.
Loss-In-Value Damages
Cover: Difference between the contract price and the price of substitute goods (used if buyer covered in good faith).
Market: Difference between the market price and contract price (used if the buyer did not cover in good faith or at all).
Loss-In-Value: Difference between the value as promised and the value of the non-conforming goods (used if the buyer keeps the non-conforming goods).
Priority: Medium
When will a quasi-contractbe created?
If:
The plaintiff confers a benefit upon the defendant;
The plaintiff had a reasonable expectation he would be compensated for the benefit;
The defendant requested the benefit; AND
The defendant would be unjustly enriched (if not forced to compensate the plaintiff).
Priority: Medium
How does Reformationallow a contract to be changed, and when is it available?
It allows a contract to be changed to conform to the parties’ original intent.
It is available if a valid contract exists, BUT there was a misrepresentation OR mutual mistake of material fact.
*Will not be reformed if a valid equitable defense exists.
Priority: HIGH
When is a Rescission of a contract an available remedy?
It is available when there was a problem with the formation of a contract and treats the original contract as cancelled.
BUT, a contract will NOT be rescinded if:
A valid equitable defense applies; OR
The plaintiff sued for damages under the contract in a prioraction.
Priority: HIGH
When is Specific Performance available?
When:
A valid contract exists with clear and definite terms;
The plaintiff has performed under the contract or is ready, willing, and able to perform;
Legal remedies are inadequate;
Enforcement is feasible for the court; AND
No valid equitable or contractual defenses exist.
Priority: HIGH
What are the available legal remedies in
tort actions?
Compensatory damages
Nominal damages
Punitive damages
Restitution damages
Priority: Medium
What are Compensatory Damages?
Damages that are an attempt to put the injured party in the same position it would have been in but forthe injury.
To recover, damages must be:
Caused by the defendant;
Foreseeable;
Certain; AND
Unavoidable.
Priority: HIGH
When are Nominal Damages available in a tort action?
When the plaintiff has NOT suffered an actual injury, but still wants to establish his rights.
*They are not available where either damages or actual injury is an element to a cause of action.
Priority: Medium
When are Punitive Damages available in a tort action?
They are awarded to punish the defendant, and are available if:
The plaintiff was awarded actual damages;
The punitive damages are proportional to the actual damages; AND
The defendant’s conduct was willful, malicious, or egregious (more than negligent).
Priority: Medium
What are the damages awarded for Fraud?
Either:
The actual losses suffered (difference in what the plaintiff gave and received); OR
The benefit of the bargain (difference in what he received and what he was fraudulently led to believe he would receive).
Priority: Medium
What are the damages for conversion of property?
Either:
Possession of the property; OR
The fair market value of the property at the time of the conversion.
Priority: Medium
What are damages for trespass to land?
Either:
The diminution in value of the property; OR
The cost to repair the property.
Priority: Low
What is a Temporary Restraining Order (TRO)?
When is it available?
An emergency remedyused to maintain the status quo pending the outcome of a hearing or application.
It is ONLY available when the plaintiff will suffer immediate and irreparable harm.
Priority: HIGH
What must party show to receive a TRO on notice to the other parties?
The court will analyze the same factors as a preliminary injunction.
Priority: HIGH
For an ex parte TRO, what must the moving party do?
Provide specific facts in a sworn statement showing immediate and irreparable injury, injury, loss, or that damage will resultbefore an adverse party can be heard;
Certify in writing any efforts made to give notice to the adverse party and why notice should not be required; AND
Give security in an amount that the court deems proper.
*The United States, its officers, and its agencies are not required to give security.
Priority: HIGH
