Rules

Question 1

Temporary restraining order

Answer 1

A temporary restraining order is an EMERGENCY ORDER imposed to maintain the status quo until regular, adversarial hearing may be held on motion for injunction. It can be issued after notice and a hearing or ex parte if sufficient showing of urgency

The moving party must
- give the nonmoving party notice of the TRO, unless it can make a STRONG showing why notice should not be required;
- prove they will suffer irreparable injury where a PI can be obtained, and
- show the likelihood of succeeding on the merits.

Question 2

Preliminary injunction

Answer 2

A preliminary injunction is an order that maintains the status quo until a trial on the merits can be held and is imposed after notice and a regular, adversarial court hearing.

The moving party must show that
- they are likely to prevail on the merits, and
- they will suffer irreparable injury before the trial can be held unless PI is granted. Irreparable injury is weighed against any hardship to the defendant if the PI is granted.

Question 3

Specific performance

Answer 3

Specific performance is a mandatory decree or injunction that orders a contracting party to perform that which she has promised to perform under the contract.

To obtain specific performance:
- there must be a contract with definite and certain terms
- the plaintiff must have already performed or be ready and able to perform all of their conditions under the contract
- the legal remedy must be inadequate
- it must be feasible for the court to enforce
- the defendant must not have any defenses (unclean hands, laches, unconscionability, mistake or misrepresentation, SOF)

Question 4

Replevin

Answer 4

Replevin is used to recover specific chattels WRONGLY TAKEN and DETAINED by a defendant BEFORE TRIAL.

Plaintiff must show that
- Plaintiff has a right to possession
- Wrongful withholding by defendant

Replevin may be inadequate to recover unique chattels because of difficulty in recovering and because defendant can retain by posting bond.

Question 5

Compensatory damages

Answer 5

Compensatory damages aim to put the nonbreaching party in the position they would have been in had the promise been performed. in most cases, plaintiff will receive expectation damages sufficient to purchase substitute performance (the benefit of the bargain).

Question 6

Are equitable remedies available?

Answer 6

Consider:
- is the legal remedy inadequate?
- is it feasible to enforce the equitable decree?
- is the hardship to the defendant considerably greater than the benefit to the plaintiff

Question 7

Incidental damages

Answer 7

Incidental damages are expenses reasonably incurred in inspection, receipt, transportation, care, custody of goods, and other expenses reasonably incident to breach.

Question 8

Consequential damages

Question 9

Damages for breach of land sale contract

Answer 9

In a breach of a land sale contract, damages are measured by either the out-of-pocket loss, or the benefit of the bargain (the difference between the contract price and the fair market value of the land).

Question 10

Rescission

Answer 10

Rescission allows a plaintiff to wipe out the contract and restore the status quo prior to the contract so long as the defendant does not have any legitimate defenses.

Question 11

Grounds for rescission

Answer 11

• mutual mistake of material fact
• unilateral mistake if other party knew or should have known
• unilateral mistake if hardship by mistaken party is so extreme it outweighs other party’s expectation
• misrepresentation of fact or law by either party as to a material factor that was relied upon
• other grounds, like duress, undue influence, illegality, lack of capacity, and failure or consideration

Question 12

Unclean hands

Answer 12

Unclean hands is a defense where the plaintiff is guilty of some INEQUITABLE or WRONGFUL conduct regarding the same transaction as to which they are suing the defendant.

Question 13

Laches

Answer 13

Laches is a defense where the plaintiff took an UNREASONABLE delay in initiating an equitable claim that results in PREJUDICE to the defendant.

The period for laches may be shorter (but never longer) than the comparable statute of limitations. Laches begins to run from the time plaintiff has knowledge that one of his rights has been infringed.

If laches applies, award money damages instead.

Question 14

Impossibility

Answer 14

Impossibility is a defense where the injunction is impossible to carry out

Question 15

Inadequacy of legal remedy

Answer 15

The legal remedy is usually considered inadequate with land sales/use, or when the goods are rare or unique, i.e. the plaintiff would not be able to buy replacement goods with a monetary recovery.

Question 16

Constructive trust

Answer 16

A constructive trust compels a person holding title to wrongfully obtained property to convey the property to its rightful owner. Apply when property acquired at plaintiff’s expense is worth as much or more than claim.

Plaintiff must show
- Defendant has TITLE and defendant’s acquisition of title can be TRACED to property that defendant wrongfully acquired
- Defendant’s retention would result in unjust enrichment
- Plaintiff has no adequate remedy at law (damages inadequate)

Question 17

Equitable lien

Answer 17

An equitable lien can be placed on defendant’s property to secure payment of debt owed to plaintiff; property placed in a court-directed sale and proceeds go to plaintiff. If less than the fair market value, deficiency judgment issued for the difference.

Plaintiff must show that
- defendant MISAPPROPRIATED plaintiff’s property, creating a debt or obligation to pay
- defendant holds title to which the wrongfully obtained property can be traced
- defendant’s retention of the plaintiff’s property would result in unjust enrichment
- legal remedy is inadequate

Apply when property acquired at plaintiff’s expense is worth as much or LESS than the claim

Question 18

Ejectment

Answer 18

Ejectment restores possession of real property from which plaintiff was wrongfully ousted; only applies if defendant has possession

Requirements:
- Plaintiff has a right to possession
- Wrongful withholding by defendant

Question 19

Punitive damages

Answer 19

to punish a defendant for “willful, wanton, or malicious conduct”; generally limited to intentional torts, or cases of reckless misconduct.

Requirements
- Plaintiff must first have been awarded compensatory or nominal damages. (Punitive damages cannot stand alone.)
- Can also be attached to restitutionary damages
- Plaintiff’s fault must be greater than negligence
- Should be relatively proportionate to actual damages (not exceeding 10x compensatory damages)

Question 20

Due process limitation on punitive damages

Answer 20

Punitive damages that are “grossly excessive” are invalid under the DPC of the Fifth and Fourteenth Amendments.

Key issue: Did the defendant have FAIR NOTICE of the possible magnitude of punitive damages, considering
- Reprehensibility of their conduct
- Disparity between actual/potential harm suffered by plaintiff and the punitive award
- the difference between punitive damages award and the criminal or civil penalties authorized for comparable misconduct

Question 21

Restitutionary damages (contract)

Answer 21

Where contract was materially breached:
- nonbreaching party can recover the value of their performance, even in excess of contract rate.
- breaching party can recover (not to exceed contract rate and reduced by any damages suffered because of the breach

Where the contract is unenforceable, recovery depends on nature of benefit conferred:
- Specific restitution available for recovery of tangible property
- Where benefit was goods or services, plaintiff was entitled to the value thereof
- In cases of impossibility contract rate is maximum

Question 22

unconscionability (defense)

Answer 22

determined at time of formation, considering:
- inadequacy of consideration that is either grossly inadequate or coupled with an unconscionable contract or “sharp practices”
- enforcement will cause disproportionate hardship to defendant or public that outweighs the harm the plaintiff will suffer > award damges instead

Question 23

Statute of Frauds (defense)

Answer 23

Can be a defense if applies (MY LEGS).

But for land sales, if one has rendered valuable part performance (two out of payment, possession or improvements) in reliance on contract, specific performance will be granted

Question 24

Reformation

Answer 24

modifying written instrument to reflect parties’ original understanding

Question 25

Requirements for compensatory damages

Answer 25

• Actual (“but for”) causation
• Foreseeability (proximate causation)
• Certainty (see other card)
• Unavoidability: plaintiff must take reasonable steps to mitigate

Question 26

Certainty (compensatory damages)

Answer 26

Past losses have to be established with more certainty than future loses; historical record helps provide certainty.

For future damages, plaintiff must show that they are more likely to happen than not (“all or nothing” rule)

Economic losses must be proven with sufficient certainty but not non-economic losses; jury may award any amount within judge’s instructions

Question 27

Injunction (definition)

Answer 27

An injunction orders the defendant to refrain from engaging in certain conduct or activities (negative injunction) or to perform a particular act (mandatory injunction).

Question 28

Injunction (requirements)

Answer 28

• legal remedy must be inadequate
• injunction must be feasible to enforce
• court must balance the hardships
• there must not be any defenses

Question 29

Is an injunction feasible to enforce?

Answer 29

Whether it is feasible to enforce an injunction depends largely on whether it is negative or mandatory or nature.

Negative injunctions pose no feasibility problems because court can simply hold defendant in contempt if it fails to refrain from engaging in certain activities.

Mandatory injunctions post feasibility problems because the court must supervise the order to make sure the affirmative act is properly done.

Question 30

Injunction (hardships)

Answer 30

The court may perform a balancing test to ensure that the hardship to defendant or the public does not outweigh the benefit the plaintiff may receive from the relief sought.

Under the majority view, if the harm to the defendant or public outweighs the harm to the plaintiff, the plaintiff may only seek money damages.

Question 31

Restitution (quasi contract)

Answer 31

Where the defendant has been unjustly enriched by the actions of the plaintiff, the plaintiff may recover under a restitutionary remedy known as a quasi-contract.

Question 32

To recover under quasi contract, a plaintiff must prove:

Answer 32

• it conferred a benefit on the defendant by rendering services
• it conferred the benefit with the reasonable expectation of being compensated for its value
• the defendant knew or had reason to know of the plaintiff’s expectation, and
• the defendant would be unjust enriched if he were allowed retain the benefit without compensating the plaintiff