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50 Cards in this Set
- Front
- Back
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Damages: rstitution (money, replevin, ejectment)
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legal remedies
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Restitution (constructive trust, equitable lien), injunction
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equitable remedy
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Tort Problems:
(injury to ∏ arising out of the tort) (identify the tort committed and whether ∏ is entitled to relief) |
damages
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tort remedies:
compensatory damages that seek to put ∏ back where he was before the tort (look to the past) (based on injury or harm to ∏) (“∏ is entitled to compensatory damages to put her in the position she would have been in had this wrong not occurred. On these facts . . .”) 1. 4 requirements: actual causation, foreseeability, certainty, mitigate 2. Form: one lump sum, discounted to present value, w/o inflation |
damages - actual damages
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Tort remedies:
a small, or nominal, amount of money available when no actual damages can be proved (serve to vindicate/establish the ∏’s rights) |
damages - nominal damages
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torts remedies:
punitive damages punish and deter; they do not compensate for actual injury suffered by the ∏ (there must be some proportionality between actual or nominal damages and punitive damages; wealthy ∆s pay more than poor ∆s) |
damages - punitive damages
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tort remedies:
(benefit unjustly retained by the ∆; does not need to be any injury to ∏) |
restiution
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tort remedies:
look for benefit to the ∆ (“waive the tort and sue in assumpsit”) (if both compensatory and restitutionary remedies are available, ∏ must elect the one that will give him the greatest recovery) (never available for encroachment or nuisance) |
restitution legal remedy: money
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tort remedy:
recovery of specific personal property (∏ has a right to possession and ∆ wrongfully withheld the property) (preliminary hearing – is there a colorable claim? Then posts bond (but can counter w/own redelivery bond) and sheriff recaptures) (almost always coupled with damages for lost use or the benefit to the ∆ during the time of wrongful detention) (right to replevin cut off by transfer to BFP) |
restiution legal remedy: replevin
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tort remedy:
recovery of specific real property (∏ has a right to possession, wrongful withholding by ∆, and ∆ has actual possession of the property) (almost always coupled with damages) |
restiution legal remedy: ejectment
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tort remedy:
obligation to convey specific property to the ∏ (∏ should select if the property goes up in value subsequent to the taking) (∆ has improperly acquired title to property at the expense of ∏, unjust enrichment, and no adequate remedy at law) |
restitution equitable remedy:
constructive trust |
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tort remedies:
security interest in specific property (∏ should select if the property value goes down subsequent to the taking) (∆ wrongfully acquired titled to property or has improved property he already owned using money or property wrongfully obtained from the ∏, ’s retention = unjust enrichment, has no adequate remedy at law) (property will be subject to an immediate court-ordered sale and the money recovered will go to ∏) (deficiency judgment will issue for the difference between the proceeds of the sale and the FMV of the property when it was taken) |
restiuttion equitable remedy:
equitable lien |
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tort remedies:
(i.e., if ∆ sells the property, court will trace the profits) a. When the ∆’s property cannot be traced back to only the ∏’s property (e.g., funds are commingled or ∆’s property was merely improved with ∏’s property), only an equitable lien is available b. Lowest intermediate balance rule: if withdrawals from a commingled bank account causes the balance to sink below the ∏’s claim, the lien is limited to the lowest account balance between the time of wrongdoing and the suit |
restitution equitable remedy:
tracing rules |
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tort remedies:
4. BFPs prevail over ∏ |
restiuttion equitable remedy
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tort remedies:
i. Order to the ∆ to refrain from doing something (negative injunction); or ii. Order to the ∆ to do something (mandatory or affirmative injunction) iii. TRO: 1. Irreparable harm; likelihood of success; hardships balance in ’s favor (hardship is serious), post bond just in case wrong. |
inunctions
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contract remedies:
(injury to ∏ arising out of a breach of contract by the ∆) (analyze the underlying cause of action and discuss whether ∏ is entitled to relief) (ask: which party to the K committed the breach and how did they do it?) |
damages
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contract remedies:
this is the benefit ∏ expected to get out of the K – make whole (look to the future) 1. 4 requirements: causation, foreseeability, certainty, mitigate |
damages: compensatory damages
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contract remedies:
these are damages to ∏ in addition to the lost expectation (they must be foreseeable at the time the K was entered into) |
damages: consequential damages
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contract remedies:
these are damages specified in the K; for a liquidated damages clause to be valid, actual damages must be difficult to calculate at time of K formation, and the amount specified in the clause must be a reasonable approximation/forecast 1. If the clause is invalid, it is called a penalty 2. If the parties’ intent is clearly expressed, liquidated damages may serve as a true alternative to performance |
damages: liquidated damages
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contract remedies:
prevent unjust enrichment: |
restitution
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contract remedies:
benefits unjustly retained by ∆ when there is a void or unenforceable contract, or where the ∏ chooses not to sue on the contract, permitting recovery in quasi-K or quantum meruit 1. non-breach: restitutionary damages for the services rendered based on value to (can be higher than K price) 2. breached: Traditional: cannot recover; modern – recover restitution, but not more than K price |
restitution: money restitution
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contract remedies:
ii. Replevin iii. Ejectment iv. Equitable Restitution: 1. Constructive Trust 2. Equitable Lien |
restitution
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contract remedies:
order to the defendant to specifically perform the contract |
specific performance
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contract remdies:
1. In rescission, the K is void or voidable, and the deal is called off |
rescission
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contract remedies:
i. Mutual: if there is mutual mistake of a material fact, rescission will be granted; if there is mutual mistake as to a collateral fact, rescission will be denied ii. Unilateral: rescission generally denied 1. Traditional exception: where the non-mistaken party knew of, or should have known of the mistake 2. Modern trend exception: rescission will be granted if the mistaken party would suffer undue hardship without rescission |
rescission: grounds for rescission = mistake
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contract remedies:
in order to rely on the grounds of a misrepresentation, the ∏ must show he properly relied on the misrepresentation i. Innocent: requires reasonable reliance by the ∏ ii. Fraudulent: requires only actual reliance by the ∏ |
rescission; gounds for rescission - misrepresentation
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contract remedies:
i. Unclean hands ii. Laches iii. Election of remedies: if ∏ sues for damages first, rescission is not allowed (regarded as an affirmance); if ∏ sues for rescission first, damages are also allowed; ∏ may sue for both, but must elect preferred remedy before judgment iv. Estoppel v. Negligence is never a good defense |
rescission defenses
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contract remedies:
d. Restitution is available if there has been some partial performance under the K and the K is going to be rescinded e. Legal rescission: if ∏ gives notice of rescission to ∆ and tenders back any consideration received, ∏ may then sue for restitution if ∆ refuses to return something given to him by ∏ under the K |
rescission
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contract remedies:
(changes a written agreement to conform with the parties’ original understanding |
reformation
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contract remdies:
1. In reformation, the contract is valid and enforceable, but the written form of the contract is wrong; the contract is rewritten correctly and is then enforced |
reformation
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contract remedies:
a. Mistake i. Mutual: reformation will be granted ii. Unilateral: reformation will be denied, unless the non-mistaken party actually knows about the mistake b. Misrepresentation: reformation will be granted, and is available for both innocent and intentional misrepresentations |
grounds for reformation
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contract remedies:
i. Laches ii. Unclean hands iii. Sale to BFP iv. Parol evidence rule, statute of frauds, and negligence are not good defenses |
defenses to reformation
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(has the ∆ committed a tort, or is he or she about to?) (∏ must first establish that it is entitled to relief)
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injunctive relief torts
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inadequate remedy at law
is a property right involved is an injunctive decree feasible Balance hardhips Defenses |
inunctive relief for torts
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i. Damages and money restitution: damages may be inadequate because they are too speculative or too small to compensate fully for the actual injury; the ∆ might be insolvent; there may be a multiplicity of suits, the injury may be irreparable, there may be injury to land.
ii. Replevin: replevin may be inadequate if the ∆ can keep the property by posting a redelivery bond; or the sheriff may be unable to find the property iii. Ejectment: ejectment (plus mesne damages) is an adequate remedy if the ∏ only wants a trespassing ∆ off his land; ejectment is inadequate if ∏ wants removal of an encroaching structure |
inunction relief for torts:
are the legal remedies inadequate |
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(the traditional rule is that ∏ must have been protecting an actual property right; the modern trend is to expand the traditional rule to include any protectable interest)
i. At common law, only actual property rights were protected ii. Most courts today protect both property interests & rights and personal rights by injunction |
injunctive relief in tort: is a property right involved
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(negative injunctions require less court supervision and no enforcement issues)
i. Must the court exercise too much supervision? ii. Is a negative (stop) or mandatory (make) injunction appropriate? |
injunctive relief in tort: is an injunctive decrea Feasible
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(court will balance the detriment caused to the ∆ against the benefit gained by the ∏) (if there is a gross disparity between the detriment and the benefit, the court will not issue the injunction; instead, the court will consider awarding money damages)
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injunctive relielf in tort: should the hardship be balanced
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i. Laches: the effect of passing of time (has the ∏’s inaction encouraged or allowed the ∆ to act to his detriment?)
ii. Unclean hands: ∏ must come into equity with “clean hands”; improper conduct must be related to the transaction in the suit iii. Freedom of speech: 1st amendment rule against prior restraint; see exceptions for national security, and for trade libel, particularly in conjunction with another business tort iv. Criminal act: “Equity will not enjoin a crime” |
injunctive relief in tort: defenses
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inadequate legal remedy: valid K with sufficiently definate terms: specific performance decree feasible; mutality of oblgiation; defenses
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specific performance relief in K requirements
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i. Damages and money restitution: damages may be too speculative or too small to compensate fully for the injury; insolvent?; there may be a multiplicity of suits; there may be an irreparable injury; ∏ may seek to recover a unique chattel; a K for the purchase or sale of land may be involved (uniqueness at litigation)
ii. Replevin: ∆ can post a redelivery bond; the sheriff may be unable to find the property iii. Ejectment: (typically not involved in an action on a K) |
specific performance K: are the legal remedies inadequate
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i. Remember that the terms of a K may be sufficiently certain to constitute a valid K, but an equity court may still be unwilling to grant SP of that K if it cannot tell exactly what the parties intended
ii. has satisfied conditions 1. seller – enforce K if defect is minor or if major & can cure b/f closing 2. buyer – enforce K even if major defect – abate contract price 3. time is of the essence – ct will avoid forfeiture if loss to seller is small, tardiness is de minimis, waiver by accepting pmt, buyer = undue hardship |
specific performance K: are the terms of hte Valid K sufficiently definite and certain
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i. Is there jurisdiction over the parties or the property? (watch for property outside the state)
ii. Is there too much supervision by the court? iii. Is a negative injunction appropriate? (watch for personal service Ks where the employee tries to breach and work for a competitor) |
specific performance K: is a specific performance decree feasible
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i. At common law, the test was whether the remedy of SP was mutually available at the time of contracting
ii. Modern test: the security of performance test (ask whether the performance of the ∏’s obligations can be secured to the satisfaction of the court) “can & will” |
specific performance K: is the mutuality of obgliation
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i. Laches
ii. Unclean hands iii. Freedom of speech iv. Hardship: in a suit to specifically enforce a K, a court of equity may refuse to enforce a K in which there is inadequate consideration (low price) and there are onerous terms |
specific performance K: defenses
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i. ROL on buyer (traditional); whoever has ROL gets insurance proceeds
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equitable conversion
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i. Negative covenants – 1) protects legit interest of ; 2) reasonable for duration & geographical scope
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employee K's
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issued pending a trial on the merits, requires:
irreperable injury, plaintiff has a likliehood of success on the merits, hardhship balance in tehp plaintiffs favor, plaintiff should be required to post a bond |
temporary injunction
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issued pending a hearing to determine whether a temporary injunction should issue and not to exceeed 10 days: same as a temporary injunction
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temporary restraining order
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if there has been a full hearing on the merits, requires: notice to opponent, inadequacy of legal remedies, a property right, feasibility of enforcement, balance hardships, defenses
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permenant injunction
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