Restitution Remedies (TORT AND CONTRACT

Question 1

Two types of Restitution Remedies IN TORT CASES

Answer 1

legal remedies

equitable remedies

Question 2

Two types of restitution Legal Remedies IN TORT CASES

Answer 2

1. Ejectment

2. Replevin

Question 3

Two types of restitution equitable remedies

Answer 3

1. constructive trust

2. equitable lien

Question 4

when is Constructive Trust or Equitable lien available as remedies

Answer 4

when the D 1. wrongfully acquires TITLE to the property AND

2. would be unjustly enriched if allowed to keep the property

Question 5

How diff does court approach each equitable remedy?

Answer 5

For Constructive trust- court requires D to WITHHOLD the property as a trustee and then return it to the P
For Equitable Lien- the court WILL FORCES THE SALE of D’s property and give the proceeds to the P.

Question 6

Hows is constructive trust diff from Replevin

Answer 6

a constructive trust can still be imposed even if the form of property changes - new form-.. we can trace the new form and recover whatever property is available UNLESS its a BFP we cannot trace property that has been sold to a BFP

Question 7

What benefit is conferred in either case of Equitable lien or constructive trust?

Answer 7

In either case theP would become a SECURED CREDITOR and get priority- will recover before other creditors- as opposed to becoming a general creditor which would be the case if P only recovered damages.

Question 8

What is equitable lien

Answer 8

where the P is allowed to get a lien on the D’s property

Question 9

What is the Lowest intermediate Balance Rule

Answer 9

Under this rule, to determine the maximum amount that can be traced back to the stolen or wrongfully acquired property:

1. we look towards the point of the wrongful conduct of the D
2. look to the point of the current lawsuit- i.e., we look at the time btwn when the wrongful conduct occurred and when the lawsuit began
3. during that time period we then pic the lowest balance available
4. and that amnt is the max amnt that can be traced back to the P - i.e. must the lowest amnt that can be traced back to the stolen amnt

Question 10

When does the lowest intermediate balance rule apply

Answer 10

when the D’s OWN money or property is COMMINGLED with the property D has wrongfully acquired/stolen AND the commingled account fluctuates in value

Question 11

What is one way that restitution remedies can be awarded?

Answer 11

it can be awarded by a quasi-contract

Question 12

Quasi Contract

Answer 12

is imposed by the Court in order to order D to pay P the reasonable value of the benefit conferred

Question 13

What is one basis for awarding restitution remedies under a quasi-contract?

Answer 13

Where the benefit was conferred BY MISTAKE to the D- the key here in determining whether P should be compensated is to determine whether there was a reasonable expectation of payment?” bc w/o the expectation of payment there can be no recovery

Question 14

Hypothetical: If painter paints the WRONG house does he have the right to get paid under the based on quasi-k (as a restitution remedy) ?

Answer 14

We must first ask: Whether the painter reasonably expected to get paid?

1. the painter CANNOT sue the first owner’s house’s who he had originally contacted with bc he never ended up painting his house.
2. And he CANNOT recover from 2nd owner either- bc he mistakenly conferred benefit (painted wrong house) & ø have a reas. expectation of getting paid by the 2nd owner whose house he mistakenly painted.

Question 15

WHAT IS THE EXCEPTION to the rule re benefit being mistakenly conferred to the wrong person

Answer 15

IF the benefit conferred mistakenly is with regards to something that is REMOVABLE so you can take it back - e.g., plants- then the party who mistakenly planted the plants at the wrong house can just remove those plants from the wrong house and plant them the right house. So he can get restitution.

Question 16

What are the diff ways that quasi contracts can arise?

Answer 16

1. it’ll arise if a benefit is conferred onto the D and D would be unjustly enriched as a result

Question 17

What is the 2nd area where a quasi-k can be imposed

Answer 17

2. Another area that quasi-k can be imposed is with re: to UNENFORCEABLE CONTRACTS-
   where two parties enter into a K that would otherwise be unenforceable for whatever reason - courts will impose a quasi-k

Question 18

What is the Final area where a quasi-k can be imposed

Answer 18

3. last way that quasi- K can be imposed is when P and D enter into a K and the D Breaches of K.
   Here, P can sue for K damages OR
   P can treat that breach as RESCINDING THE K and seek restitution.

Question 19

Under a quasi-k when can the P treat D’s breach as a rescission of the K and seek restitution?>

Answer 19

so long as the P has NOT FULLY PERFORMED his own end of the deal, then the P can do so.

Question 20

What if the P HAS fully performed?

Answer 20

if P the has already fully performed her own K obligation than this obligation is NO longer available and the only thing that the P can sue for then is for Expectation Award.