Torts (Restitutionary Damages)

Question 1

Restitutionary damages

Answer 1

Apply where the defendant has obtained a benefit, the retention of which amounts to “unjust enrichment.” The objective is to restore the defendant;s unjust gain to the plaintiff

Question 2

Example where both restitutionary and compensatory damages are available:

Answer 2

Defendant steals your machine to use in her business. What is the remedy? You need to be made whole, but the defendant also benefited, so both compensatory and testitutionary damages are available.

Question 3

Replevin

Answer 3

Legal remedy that permits the plaintiff to recover, before trial, possession of specific chattel wrongfully taken or detained.

A judicial hearing is generally required and the items are taken back by the sherif.

P must establish:
1. plaintiff has right to possession*
2. there is wrongful witholding by the defendant

*uniqueness of subject matter of litigation makes replevin an adequate remedy

Question 4

Ejectment

Answer 4

Legal remedy to restore possession of real property from which plaintiff was wrongfully ousted

P must establish:
1. plaintiff has right to possession
2. there is wrongful witholding by the defendant

Question 5

Constructive trust

Answer 5

An equitable restitutionary remedy that is imposed on improperly acquired property to which the defendant has title.

Equity creates a trust, and the defendant serves as trustee and must return the property to the plaintiff

Question 6

Requirements for constructive trust

Answer 6

1. defendant has title to the property and the defendant’s acquisition of title can be traced to the property that defendant wrongfully acquired
2. defendant’s retention of property will result in unjust enrichment
3. plaintiff has no adequate remedy at law

Question 7

Equitable lien

Answer 7

Imposed on defendant’s property to secure payment of a debt owed to the plaintiff. Property is subject to an immediate court-directed sale and the monies received go to the plaintiff.

If proceeds are less than FMV when property was unfairly taken, a deficiancy judgment will issue for the difference

Question 8

Injunction

Answer 8

Available when legal remedy is inadequate, Results in an equitable restitutionary remedy when the court orders the defendant to make specific restitution.

Question 9

Replevin under Art. 2 of UCC

Answer 9

A buyer who has made at least partial payment may replevy the goods from the seller if the goods were purchased for personal, family, or household purposes.

Can also replevy undelivered, identified goods if, after reasonable effort, buyer is not able to find substitute goods.