Restitutionary Damages (Torts)

Question 1

RESTITUTIONARY DAMAGES
“LEGAL” RESTITUTIONARY REMEDY
BASIC CONCEPT

Answer 1

These are based on the benefit to the defendant.

And the amount is calculated based on the value of the benefit.

Contrast this with compensatory damages which focus on the injury to the plaintiff.

Question 2

EQUITABLE RESTITUTIONARY REMEDIES

Answer 2

1. CONSTRUCTIVE TRUSTS/
2. EQUITABLE LIENS

Question 3

LEGAL RESTITUTIONARY REMEDIES

Answer 3

1. RESTITUTIONARY DAMAGES
2. REPLEVIN
3. EJECTMENT

Question 4

THE RESTITUTIONARY REMEDIES
BASIC CONCEPT

Answer 4

These remedies are based on the theory that the defendant should not be unjustly enriched

Question 5

Replevin requires a 2 part test.
Establish that:

Answer 5

(1) The plaintiff has a right to possession.
(2) There is a wrongful withholding by defendant.

Question 6

“Timing” of Recovery for replevin

Answer 6

can recover chattel before trial

Question 7

If P goes to recover chattel through replevin before trial, include:

Answer 7

(i) Plaintiff will have to post a bond.
(ii) Defendant can defeat an immediate recovery by posting a redelivery bond. (The defendant can then keep the chattel until after the trial.)

Note: The sheriff repossesses the property for plaintiff.

Question 8

EJECTMENT
“LEGAL” RESTITUTIONARY REMEDY
Definition:

Answer 8

Plaintiff recovers possession of specific real property.

Question 9

Ejectment requires a 2 part test.
Establish that:

Answer 9

(1) The plaintiff has a right to possession.
(2) There is a wrongful witholding by defendant.

Question 10

Ejectment is available only against….

Answer 10

D who has possession of the property

Question 11

Who ejects:

Answer 11

The sheriff ejects defendant from property.

Question 12

Constructive Trust:

Answer 12

Imposed on improperly acquired property to which defendant has title.
Defendant serves as “trustee” and must return the property to the plaintiff.

Question 13

Equitable Lien:

Answer 13

Imposed on improperly acquired property to which defendant has title.

Property will be subject to an immediate court-directed sale. The monies received go to the plaintiff. If the proceeds of the sale are less than the fair market value of the property when it was taken, a deficiency judgment will issue for the difference and can be used against defendant’s other assets.

Question 14

constructive trusts and equitable liens can be used only when the fact pattern indicates that…

Answer 14

the defendant has title to the property

Question 15

If the property value subsequent to taking goes up, go with…

Answer 15

Constructive Trust

Question 16

If the property value subsequent to taking goes down, go with…

Answer 16

with an equitable lien

Question 17

When defendant’s property cannot be traced solely to plaintiff’s property, only…

Answer 17

an equitable lien is available.