remedy

Question 1

remedies

There are several possible remedies Mary can obtain for the tort of conversion.

The D’s best argument wil probably be unclean hands

Who will likely to prevail

Under these facts, unless the court deems that Mary’s conduct of trying to avoid creditors will bar her under the doctrine of unclean hands, she is likely to prevail. She will most likely seek a constructive trust or restitution for the additional money gained from the sale.

Question 2

General formurla for expectation damages

if the benefits for a p to contract are ( ) and ( )

Answer 2

General formula for expectation damages is the difference contract price and maeket price plus any incidental damages ,plus any foreseeable consequential damages less any amount saved by non breaching party.

if the benefits for a p to contract are unclear or too speculative,

reliance damages will be awarded

(one way to over come this kind of damagesa is to include a liqudated damages clause that must be reasonable and not punitive)

Her damages are certain because we can place an exact dollar figure on her damages.

Question 3

Restitution damages

Answer 3

Restitution is a equitable remedy to prevent a party from being unjustly enriched at the expense of another.

Question 4

The plaintiff may also recover punitive damages

if a defendant …

Answer 4

The plaintiff may also recover punitive damages

if a defendant acts wantonly, willfully or maliciously

1 The punitives must be proprotional to the actual damages,

2 the conduct must be more than negligent

Generally punitive damages are not awarded for breach of contract action

Here, there is nothing to suggest that D dumped the trees willfully and with intent to harm P,

Question 5

RESCISSION!

Answer 5

Rescission of a contract is an equitable remedy.

If the contract here is rescinded

A would receive purchase price while C would be put back in possesion of the house.

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

Question 6

compensatory damages

Answer 6

compensatory damages (reliance damages actual damages) compensatory damages are payed for the victim’s damages that are reasonably certain and foreseeable.

Question 7

nominal damages

Answer 7

Are awarded where plaintiff has no actual injury. Cf trespass to land

Question 8

expactation damages short

Answer 8

The G constitutes the breach of the contract. Therefore the C is entitled to be placed in the position he would have been in but for D’s breach. expectation damages must be certain, foreseeable, and mitigated

. It is usually measured by the difference between the contract price and the market price (it is usually measured by the difference between the value of the good as accepted and the value of the good if it had been as warrantied.) Consequential damages are those damages specific to the P that were foreseeable at the time the contract was entered.

Question 9

incidental damages

Answer 9

Incidental Damages are incidental to the breach of the contract Cf cost to return goods Those related to avoiding the loss from the breach

Question 10

iyakukin

Answer 10

Liquidated damages Liquidated damages is valid a long a the amount appears to e reasonable in light of the seller’s anticipated and actual damages/ Many courts will uphold the retention of deposit of 10 p of the sale price or less wihout inquiry to its reasonableness. The facts indicate that the sale price was … therefore the P did not have actual damages because she can sell if for $10000 more, Thus she will not be able to enforce a liquidated damages clause in any higher amount

Question 11

replevin

Answer 11

Replevin is legal restitutionary remedy That allow the recovery of specific personal property before the trial In order to prevent D’s unjust enrichment

To claim Replevin the P must show

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

The sheriff could seize it for replevin but it may be difficult to find so specific performance is a superior remedy.

Question 12

Ejectment is

Answer 12

Ejectment is legal restitutionary remedy (not equitable!!)

that allow the recovery of specific real property wrongfully taken

in order to prevent D’s unjust enrichment

To claim Ejectment The P must show

1) The P has a right to possession
2) there is a wrongful withholding by D

Question 13

what is the condition to seek equitable remedy?

Answer 13

EQUITABLE —Don’t forget refer to the legal remedy is inadequate

Question 14

to claim specific performance the plaintiff must show

tips mutuality はいずれ不要とするので入れていないケースも＊時間の点からはこちらを選択

Answer 14

To claim specific performance, the plaintiff must show

(1) there is a valid contract , with clear and definite terms
(2) conditions on plaintiff must be satisfied
(3) the legal remedies are inadequate,
* the property is unique and damages is speculative*
(4) feasible to enforce,
* Ordering behavior may be more difficult if the D is in another jurisdition.here that doesn;t seek to be the case.*
* The court can order S to perform his contract obligation and if fails to do so the court can hold him in contempt*
(5) no defense. (Cha Cha Is Favorite Dance)
* It is not clear whether the parcel is in the same state as the court but, in any event, t*he court has personal jurisdiction over Steve and can require him to convey the property to Belle. Thus, enforcement is feasible.

Question 15

In what kind of case enforcement is feasible? A court enforce

Answer 15

A court enforce orders of specific performance through its contempt power so the court must have jurisdiction over either the property or the person

Question 16

bwhat is the different between equitable lien and constractive trust

Answer 16

Equitable lien is generally most useful when the property of another has been used to improve some other property or

where the property has decreased in value and the owner of the property is seeking a deficeincy judgement

Consructive trust will allow a person to recover any increase in value of the property

Question 17

Constructive trust tips

if the property wrongfully acquired is money

seeking damages is not reasonable option >>>

Don’t forget restitution

(at conversion, the amount of damages is the market value of the item that was converted )

Question 18

Constructive trust

Answer 18

A court can impose a constructive trust on D

constructive trust is equitable restitutionary remedy

to prevent unjust enrichment

when

1) legal remedy is inadequate ,
2) the defendant wrongfully acquired the property of another.

( or property solely traceble from the property).

D is required to act as Trustee for the P as beneficiary.

Although it will not defeat a bona fide purchaser

The plaintiff can trace the property to another form, as long as the trust res can be identified. Additionally, the plaintiff is entitled to any increase in value in the property to avoid unjust enrichment to the defendant. Where the property has been commingled with other funds and withdrawals have reduced the account’s balance below the plaintiff’s claim, the plaintiff is entitled to the next lowest intermediate balance.

• 1) legal remedy is inadequate the ring is sold ,so replevin is unavailable 2) property must be solely traceable to current form 3) when the wrong doer commingles wrongfully obtained funds with his own fund in single account lowest intermediate balance rule applies. Presume D spent his own money first so the $600 was from the ring,(but the other 2400 was added later and cannnot be traced to the ring”*
  https: //cw-cpa.com/how-does-the-lowest-intermediate-balance-rule-for-tracing-work/

Question 19

The court may impose…

Answer 19

the court may impose an equitable lien(security interest ) in hte property which must be sold and the proceeds returned to the P. if the sale results in less mony than is owed, the P may get a defidiency judgment and a lien on the D’s other property to secure that judgment

However the P may not recover any enhanced value in the property.

Equitable lien is equitable restitutionary remedy to prevent unjust enrichmment

Tracing may used to ensure return of the property.

If the proceeds of the sale are less than is owed

the P may get a deficiency judgment will issue and a lien on the D’s other property to secure that judgment.

However the P may not recover rany enhanced value in the property.

Question 20

A court can put purchase money resulting trust when

Answer 20

A court can put purchase money resulting trust when one party purchases property

Trust. A purchase money resulting trust occurs when one party purchases property, but another party supplies the consideration. The other party must have supplied consideration before the purchasing party obtains title.

In such a situation, the court imposes a resulting trust on the purchasing party, construing her as a trustee holding the property in trust for the beneficiary, which is the party who supplied consideration(出資した人が受益者として守られる）

Question 21

injunction

contract specific performance

tort injunction

Answer 21

injunction is an equitable remedy

that orders defendant to do or refrain from doing something.

It requires that

1) legal remedy is inadequate,
2) that there is protectable interest
3) feasibility of enforcing of the injunction
4) the hardship to defendant does not outweigh the benefit of granting of the injunction .

( I Put Five Bucks)

negative injunction is easier to enforce the courts has power to order contempt for noncompliance jurisdiction

Question 22

Preliminary injunction

Answer 22

is an order imposed by the court requiring or forbidding non moving party to take an action an injunction to maintain status quo until a trial can be held

To obtain the order P must prove

she wil likely succeed on the merits of her case,

imminent irreparable harm

the hardship to defendant does not outweigh the benefit of granting of the injunction .(bucks)

Question 23

bA temporary restraining order is

Tips :

write TRO first !

then you can right in the clause of preliminary injunction

For the same reasons described above, the court would grant Belle a PI pending trial.

NODEFENSE Don’t write about defense. because it would be exparte process.

The court does not analyze the parties defenses when granting a TRO.

Answer 23

A temporary restraining order (“TRO”)

is an order from the court requiring, or forbidding, the nonmoving party to take an action,

while the nonmoving party seeks a preliminary injunction.

The court may require themoving party to post a bond

To obtain a TRO, a plaintiff must show ( almost the same as preliminary injunction)

For the same reasons described above, the court would grant Belle a PI pending trial.

A TRO will only expire after 14 days, unless it is extended for another 14 days

A plaintiff may seek a TRO ex parte - that is, without notice to the nonmoving party - if, in addition to showing a likelihood of irreparable harm, the plaintiff shows a strong showing for why notice could not be practically provided

Question 24

reformation is

Answer 24

reformation is an equitable remedy to change the contract into the actual agreement of the parties. This is often applies to a clarical error.

Question 25

unclean hand

Answer 25

unclean hand is equitable defense

that prevents the court from granting remedies when the party who seeking remedieds had exercised misconduct in the transaction.

Question 26

Laches

Answer 26

Laches is a defense to the equitable remedy when the plaintiff causes undue delay in bringing action

be careful what he noticed at time of the wrong doing

Question 27

tips

Answer 27

数字がたくさん出てきて損害がきかれているときは契約の構成よりもそちらを先に書き始める＊バランス 損害を紙に書きだす

contract tortの両構成に気を取られていたらequitable trust の論点を見逃す　remedyのときは構成よりもremedy に集中

Question 29

tips for rescission

there are some question that rescission has priority for P

rescission

reliance damages

明らかに解除一本なら中での検討が綺麗

一方でもし解除しない前提での損害賠償が論点になっている場合中で書くと不法行為等がいえなくなってしまう

misrepesentation

rescission

expectation damages(if not recscind)

reliable damages

punitive damages

however you will miss

* if defenses would all fail

最後にまとめて検討しているケースあり　これは時間管理の点からも賢い

Steve’s defenses