Tort Restitutionary Remedies

Question 1

Restitutionary Damages

Answer 1

based on the theory that D should not be UNJUSTLY ENRICHED

Alternative to compensatory damages when D has obtained a benefit.

Question 2

Restitutionary Damages and punitive damages

Answer 2

Punitive damages may be attached to restitutionary damages, so long as the cause of action is in TORT

Question 3

Replevin

Answer 3

Permits P to recover, BEFORE trial, possession of a specific chattel wrongfully taken or detained

requires: (1) P has a right to possession; and (2) there is wrongful withholding by D

NOTE: Judicial hearing generally required to make seizure valid

NOTE: almost always coupled with damages (compensatory or restitutionary) for lost use or benefit to D during time of detention

Question 4

Process for replevin

Answer 4

P must post a BOND

D can defeat immediate recovery by posting a REDELIVERY BOND

Question 5

Ejectment

Answer 5

Restore possession of real property from which P was wrongfully ousted

Test: (1) P has a right to possession; and (2) there is a wrongful withholding by D

Look for wrongful possession by D (not just crossing over land)

Almost always coupled with compensatory or restitutionary damages for lost use or benefit

Question 6

Constructive Trust (Equitable restitutionary Measure)

Answer 6

imposed when (1) D misappropriated P’s property; (2) P’s property can be traced to property held by D, and (3) D’s retention of the property would result in unjust enrichment; and (4) P has no adequate remedy at law

Imposed on improperly acquired property to which D has TITLE

D serves as constructive trustee and must return property to P. P gets value of enhanced benefit in property

Different from replevin b/c D has title, not possession

Question 7

Equitable Lien (Equitable Restitutionary measure)

Answer 7

imposed when (1) D misappropriated P’s property; (2) P’s property can be traced to property held by D, and (3) D’s retention of the property would result in unjust enrichment; and (4) P has no adequate remedy at law

Imposed on improperly acquired property to which D has TITLE

Property subject to immediate court-directed sale. Monies from sale go to P. If proceeds from sale are less than FMV of property when taken, a DEFICIENCY JUDGMENT will issue for difference

Different from replevin b/c D has title, not possession

Question 8

Constructive Trust or equitable lien?

Answer 8

If property value subsequent to taking goes UP, go with CT (want the increased value in the land)

If property value subsequent to taking goes DOWN, go with equitable lien

If D’s property CANNOT be traced solely to P’s property, ONLY EQUITABLE LIEN IS AVAILABLE (when D improved other property with P’s property)

Both lose to BFPs, both have priority over unsecured creditors