Specific Tort and Contract COA Remedies

Question 1

Conversion

Answer 1

Damages
* Compensatory Damages - FMV at time of conversion
* Restitutionary Damages (If defendant benefits)
* Punitive damages are available if dispossession was malicious

Replevin

Could also be a purchase money resulting trust

equitable remedies
* Constructive Trusts/Equitable Liens
* Injunction/ PI/ TRO

limited self help

Question 2

tresspass

Answer 2

no injury
* nominal damages
* Restitutionary Damages - if D benefited
* Injunction (if damages are inadequate- multiplicity of suit)

causing injury
* Compensatory damages- measured by diminution in the value of the land + loss of use + FUCC
* Restitutionary damages - if D benefited
* Injunction (if damages are inadequate- multiplicity of suit)

causing severance
* Compensatory damages - diminution in the value of the land or P can elect for a conversion measure (value of the crops, minerals, trees taken)
* Restitutionary damages (value of severed property, unless the defendant acted willfully, in which event value of property as improved),
* Replevin
* injunction (because land is “unique”).

Trespass Effecting Ouster
* Ejectment
* mesne damages

Question 3

encrochment

Answer 3

Compensatory damages
* If temporary → continuing trespass→ measured by the rental value of the occupied land
* if a permanent trespass, the measure is the market value of the occupied land.

Injunction
* Legal remedies are inadequate b/c Land is unique and damages cannot compensate for loss thereof, and ejectment is impracticable.
* Emphasize Balancing of Hardships–Most courts refuse to balance hardships where the defendant acted willfully.
If the encroachment was inadvertent, a majority of courts will weigh relative hardships but deny injunction only if the defendant’s hardship greatly outweighs the plaintiff’s.

NO restitutionary remedies are available

Question 4

nusiance

Answer 4

compensatory damages- loss of use and enjoyment, costs of abatement, emotional distress,etc.
* Most courts deny future damages, Some use the “permanent nuisance” doctrine (split of authority)

injunction
* Balance of hardships
* Damages Inadequate b/c of the injury to land and the possibility of multiplicity of suits (continuing nuisance)
Some courts do not balance the hardships in nuisance cases because nuisance is usually intentional.
Courts that do balance generally weigh such factors as (1) relative uses of the land; (2) whether the decree would require the defendant to shut down a costly enterprise; (3) and injury to the public (loss of jobs, loss of a useful product,etc.)

Question 5

defamation remedies

Answer 5

compensatory damages
* libel- no need to plead special damages
* slander- must plead special damages unless slander per se

Nominal
Punitive - have to show actual malice

Restitution will be denied (usually because there is no benefit to the defendant).

Injunctions are rarely granted, on the rationale that the decree would amount to an unconstitutional prior restraint on speech.

Question 6

Fraud (intentional misrepresentation) tort remedies

Answer 6

• compensatory damages - either “benefit-of-bargain” measure of damages (difference between contract value and actual value received) or loss expended
• Punitive damages if malice is shown

equitable remedies
* plaintiff may elect to rescind the contract and seek restitution
* constructive trust or equitable lien imposed on the property obtained by fraud.

Question 7

quasi contract/ restitution

Answer 7

1) P conferred a benefit on D with the reasonable expectation of compensation
2) D knew or should have known that compensation was expected and
3) justice requires damages because D would be unjustly enriched if allowed to retain benefit without compensating P

Question 8

breach of a land sale contract remedies

Answer 8

contractual remedies
1) compensatory damages **
* * seller breaches –> Buyer gets either benifit of the bargin or out-of-pocket loss
* * buyer breaches –> seller gets contract price - market price + consequential damages
2) recission
* if Innocent misrepresentation in the contract –> recission
* if fradulent misrepresentation** in LSK –> recission or restitution
Restitution

Specific Performance
* deficencies fact pattern
* Time is of the essence fact pattern
* if seller is P then seller needs to deliever marketable title
Recission
Reformation

defenses
* Statute of Frauds
* unclean hands
* misrepresentation (discuss seperate from unclean hands

Question 9

deficencies fact pattern

Answer 9

if P is the seller…
* minor deficency –> S can get SP
* major deficency –> NO SP, unless seller can cure defect before closing

P is Buyer
* Buyer can get SP even if the defect is major.
* NO SP if defect is very major

If SP is ordered, the court will abate the purchase price to account for the defect in consideration.

Question 10

construction contract

Answer 10

compensatory damages
breach by owner
* before completion –> Builder will be entitled to profits that would have resulted from the contract plus any costs expended.
* after completion –> full contract price + interest
breach by the builder (doctrine of substantial preformance)

breach by the builder
* material breach–> the owner is entitled to the cost of completion plus reasonable compensation for the delay.
* minor breach–> owner recovers the cost of restoration unless this would produce economic waste—in which case recovery is limited to diminution in value.

Restitution
* If the owner breaches, the builder can rescind and recover the value of the work already completed
* If Builder breached, the builder (breaching P) may still be able to get restitution for work already performed (limited to contract rate)

SP is NOT available