Remedies

Question 1

Types of money damages

Answer 1

(1) Compensatory, (2) Reliance, (3) restitution, (4) Nominal, (5) Punitive, Liquidated Damages, (6) Incidental

Question 2

What are compensatory damages in Tort?

Answer 2

Physical and Emotional consequences. The goal is to place the party in the position they were before the tort. Pain and suffering, medical expenses, lost wages etc.

Question 3

What are compensatory damages in Contract

Answer 3

Expectation Damages. The goal of expectation damages is to give the not breaching party the benefit of the bargain.

Question 4

What are reliance damages?

Answer 4

As an alternative to compensatory damages, a party may be awarded the monetary damages they suffered by relying on the contract.

Question 5

What are Restitution Damages

Answer 5

In contract, a plaintiff may choose to take restitution damages, which require the defendant to pay for the benefit they received.

Question 6

What are nominal Damages

Answer 6

Some minimal recovery that shows a party was right. In some cases might trigger fees.

Question 7

What are punitive damages

Answer 7

Punitive damages are intended to punish the defendant.

Question 8

What are the factors in Punitive damages?

Answer 8

(1) reprehensibility of the conduct, (2) disparity between the harm suffered and the punitive damage award, (3) difference between the remedy awarded and typical civil penalties.

Question 9

What are liquidated damages?

Answer 9

Liquidated damages are a cost agreed on by parties at the time of the contract.

Question 10

What are limitations on liquidated damages

Answer 10

(1) must be reasonable in amount and foreseeability at the time of the contract. (2) may be prohibited n some areas by public policy.

Question 11

What are incidental damages?

Answer 11

Incidental damages are additional costs incurred as a result of the breach of contract, such as fees.

Question 12

What is the formula for contracts damages

Answer 12

Compensatory damages (or reliance or restitution) + incidental damages - mitigation - collateral sources

Question 13

Limitations on damages

Answer 13

(1) Causation-must be a cause, (2) Foreseeability, (3) Certainty

Question 14

When can you get damages for emotional distress?

Answer 14

Only Tort

Question 15

When can you get litigation expenses?

Answer 15

Generally, only where authorized by statute. Traditionally each side pays its own way.

Question 16

What is a T.R.O.

Answer 16

The primary purpose is to preserve the status quo. Bars a party from taking some action. Maybe ex parte, maybe without notice. Under federal law cannot exceed 14 days, 15 at Cal. law.

Question 17

What is a preliminary injunction?

Answer 17

Basically, a TRO that lasts during litigation. Notice and ex parte requirements apply.

Question 18

What is required for a preliminary injunction?

Answer 18

(1) Plaintiff will suffer irreparable harm, (2) Harm will be greater than that suffered by the defendant and involved a third party, (3) there is a likelihood that the plaintiff will prevail on the merits.

Question 19

What is required for a preliminary injunction?

Answer 19

(1) Plaintiff will suffer irreparable harm, (2) Harm will be greater than that suffered by the defendant and any involved a third party, (3) there is a likelihood that the plaintiff will prevail on the merits.

Question 20

Requirements for specific performance

Answer 20

(1) the Existence of a contract, (2) Definite and Certain Terms, (3) Conditions for performance are met, (4) Inadequacy of legal remedy, (5) Equitable relief not unfair, (6) enforcement possible

Question 21

What is rescission?

Answer 21

Unmaking a contract?

Question 22

What are the grounds for rescission?

Answer 22

Fraud, mutual mistake, unilateral mistake + reason for knowledge of the mistake.

Question 23

What are the effects of rescission?

Answer 23

It is as if the contract never existed. Plaintiff must return any benefit and may file for suit for anything given, such as restitution.

Question 24

What is Reformation?

Answer 24

The rewriting of a contract

Question 25

When can you get reformation?

Answer 25

Mutual Mistake, Unilateral mistake (with failure to correct)

Question 26

What are the defenses to Equitable damages

Answer 26

(1) Laches, (2) Unclean hands

Question 27

What is Latches

Answer 27

Too much time has passed and the delay will prejudice defendant

Question 28

What is Unclearn hands

Answer 28

The plainitff engaged in serious misconduct related to the claim

Question 29

What is an equitable lien

Answer 29

A party may obtain a lien on the property bought with their money either through conversion or where a contract is recended. They cannot get more than the loss, but extra loss will carry forward.

Question 30

What is a Constructive trust

Answer 30

Where a party obtains a judgment specific to property, the defendant may be said to have held it in trust. They get the property instead of the money. If there was bad faith they can get the increased value, but a decrease will not carry forward.