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NWCU Current Year > 2L Remedies > Flashcards

2L Remedies Flashcards

(145 cards)

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1
Q

Damages

A

Damages is money given for an injury.

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2
Q

Compensatory Damages

A

Compensatory damages is money for the actual loss suffered and nothing more. In a torts situation, compensatory damages puts the injured person in the same position he was in before the tort occurred. In a contracts situation, the purpose of compensatory damages is to compensate the plaintiff for an actual loss or injury which was a result of the defendant’s acts.

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3
Q

General Damages

A

General damages are those damages that flow from the substantive wrong complained of, for all plaintiffs, regardless of the special facts or circumstances.

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4
Q

Value Measure

A

Value measure is one method to determine how much compensation is to be given. It is an objective measure giving market value.

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5
Q

Cost Measure

A

Cost measure is an alternative method for determining how much compensation should be. In a tort situation, this would be the cost of repair or replacement. In a contract situation, this would be the cost of substitute performance.

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6
Q

Special Damages

A

Special damages are losses which are peculiar to a particular plaintiff. The plaintiff must prove his loss and damages must be foreseeable. In a tort situation, foreseeability is that which is proximately caused. In a contract situation, it is that which is within the contemplation of the parties.

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7
Q

Certainty Requirement

A

The certainty requirement says to get special damages, you must prove to the court evidence of losses with sufficient certainty and fact of damage.

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8
Q

Avoidable Consequences Rule

A

The Avoidable Consequences Rule will deny recovery for any item of special damages which could have been avoided by reasonable acts. The rule can be stated in the negative (cannot collect for losses which could have reasonably been avoided) or the affirmative (can collect for any amount reasonably spent to try and avoid the consequences of the defendant’s conduct).

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9
Q

Collateral Source Rule

A

The Collateral Source Rule says if the plaintiff receives a benefit from someone other than the defendant, i.e., a third party, the defendant is not allowed to introduce into evidence money or benefits received by the plaintiff from a collateral source.

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10
Q

Pre-Judgment Interest

A

Pre-judgment interest is a form of damages. Interest may be awarded on the claim from the time it was originally due until judgment is awarded. The amount owed must be certain or capable of being made certain.

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11
Q

Attorney’s Fees

A

Attorney’s fees are not damages, but operate as reparation for costs incurred by litigation. As a general rule, the prevailing party in litigation is not entitled to recover attorney fees unless a statute or contract provides for them.

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12
Q

Punitive Damages

A

Punitive damages are sums awarded apart from compensatory damages, to punish or deter, due to the defendant’s aggravated misconduct. It must be proven that the defendant had a bad state of mind, and some jurisdictions may require harm other than actual damage.

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13
Q

Equitable Order

A

Equitable orders are given by a court of equity and give what the plaintiff seeks in fact (vs. a money equivalent). They operate in personam and are enforced by contempt powers of the court.

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14
Q

Injunction

A

An injunction is an in personam order given by an equity court, directing someone to act or not to act in a specific way. Since it is an equitable remedy, it must be proven that the legal remedy is inadequate.

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15
Q

Adequacy Requirement

A

The adequacy requirement is that the legal remedy for the substantive wrong claimed must be inadequate before an equitable remedy is given.

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16
Q

Preservation of Jury Rights

A

Preservation of jury rights is one purpose behind the adequacy requirement. If an equitable remedy is given, there is no longer a right to a jury.

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17
Q

Economic Waste

A

Economic waste is one of the purposes behind the adequacy requirement. If performance is more expensive than damages warrant, economic waste will occur and thus, to avoid economic waste, may not be awarded.

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18
Q

Temporary Restraining Order

A

A temporary restraining order is an injunction which is given traditionally ex parte (without notice) in a situation where there is no time to get a preliminary injunction. Temporary restraining orders are effective until a hearing to show cause (i.e., why or why not an injunction should be granted) is held.

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19
Q

Preliminary Injunction

A

A preliminary injunction is an injunction which is given after a hearing based on declarations. If granted, the injunction will be effective until final judgment is rendered by the court.

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20
Q

Permanent Injunction

A

A permanent injunction settles the rights and duties of the parties and continues in effect unless dissolved by further court order.

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21
Q

Bond

A

A bond is required at the preliminary level and permanent injunction level in an amount equal to the amount of harm the defendant would be caused if a permanent injunction is not granted.

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22
Q

Decretal Transfer

A

A decretal transfer is the act of a court transferring title to land by its decree.

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23
Q

Legal Judgment

A

A legal judgment is a declaration addressed ‘to the world,’ and is enforced by the individual to whom it is awarded.

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24
Q

Contempt

A

Contempt is the method of enforcement of equity decrees if the defendant fails to comply with the action ordered.

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25
Civil Contempt
Civil contempt is a form of contempt used to coerce the defendant to take the action ordered. The defendant is not entitled to a jury, even though the defendant may be sentenced to jail indefinitely, or the court may impose a fine which will accrue each day the defendant remains in contempt.
26
Criminal Contempt
Criminal contempt is a form of contempt used when there is nothing left to coerce. If imprisoned for more than six months, the defendant is entitled to a jury. The sentence imposed will be for a set period of time. If sanctions are a fine, the amount of the fine will also be a set amount.
27
Erroneous Orders
Erroneous orders must be obeyed until they are reversed; otherwise, noncompliance means guilty of contempt.
28
Void Orders
Void orders do not have to be obeyed unless the injunction is to maintain the status quo. Then void orders must be obeyed—unless they are frivolous.
29
Mandatory Injunction
A mandatory injunction concerns the form of the injunction. An injunction is mandatory when it requires an affirmative act.
30
Prohibitory Injunction
A prohibitory injunction concerns the form of the injunction. An injunction is prohibitory when it forbids certain conduct.
31
Independent Interest Test
The 'independent interest' test is used to determine if a non-party is bound by an injunction. Must prove the person is not in concert with the defendant (i.e., is acting in self interest). Otherwise will be held to the injunction and action not in compliance will be considered contempt.
32
Encroachments
An encroachment is a continuing trespass which results when the defendant builds a structure partly on his land and partly on the plaintiff's land. In granting an injunction, the court will balance the hardships of the parties by looking at the economic considerations involved and the conduct of the parties.
33
Willful Encroachment
If the defendant has been a willful encroacher and his conduct is deliberate and intentional, the majority of jurisdictions will grant, in equity, the injunction or removal, regardless of the hardship to the defendant.
34
Nuisance
A nuisance is the use by a person of his property in such a way as to unreasonably interfere with the use and enjoyment of another's property.
35
Permanent Damages
Permanent damages are damages which are awarded if the activity is found to be factually (will not stop on its own) and physically (court won't stop) permanent.
36
Temporary Damages
Temporary damages are damages to compensate for harm suffered up to the time of the injunction or until a permanent damages decree is given.
37
Statute of Limitations
The statute of limitations will block an award of permanent damages in a nuisance situation if the action is not brought within the period of the statute of limitations.
38
Restitution
Restitution is an alternative remedy to compensatory damages used when the defendant has wrongfully obtained a benefit which, if he were allowed to keep, would result in unjust enrichment.
39
Replevin
Replevin is a legal restitutionary remedy for the recovery of specific chattels wrongfully taken or detained.
40
Ejectment
Ejectment is a legal restitutionary remedy where the plaintiff brings this action to have possession restored to him when the defendant is wrongfully in possession of the plaintiff's real property.
41
Quasi-Contract
Quasi-contract is a legal restitutionary remedy where the plaintiff is awarded a sum of money measured by the reasonable value of the defendant's gain.
42
Waiver of Tort and Suit in Assumpsit
Waiver of tort and suit in assumpsit is used when a quasi-contract remedy is sought as an alternative to compensatory damages in tort cases, requiring the tort to result in a benefit to the defendant.
43
Constructive Trust
A constructive trust is an equitable restitutionary remedy imposed by equity courts in situations where the defendant's retention of property would result in unjust enrichment.
44
equitable restitution
A remedy that aims to restore the injured party to the position they would have been in had the unjust enrichment not occurred.
45
implied
Something that is suggested or understood without being directly stated.
46
unjust enrichment
A legal principle stating that one party should not be unjustly enriched at the expense of another.
47
defendant's retention of property
The situation where the defendant keeps property that rightfully belongs to another party.
48
title in the defendant
The legal ownership of property held by the defendant.
49
inadequate legal remedy
A situation where legal remedies are insufficient to address the harm suffered.
50
equitable doctrine
A principle of equity that guides the courts in administering justice.
51
trace
The process of following the path of misappropriated money to its product.
52
misappropriated money
Funds that have been wrongfully taken or used by another party.
53
product
The item or benefit acquired through the use of misappropriated funds.
54
wrongdoers funds with plaintiff's
The mixing of funds belonging to the wrongdoer with those of the plaintiff.
55
purchase of something else
The act of acquiring an item using commingled funds.
56
plaintiff has right to funds and purchase
The entitlement of the plaintiff to reclaim both the funds and the item purchased with them.
57
defense to constructive trust
A legal argument that can be made against the imposition of a constructive trust.
58
pays value
The act of providing a monetary consideration in a transaction.
59
no notice
The lack of awareness of facts that would affect the legality of a transaction.
60
cut off equitable rights
The termination of equitable claims due to the transfer of legal title.
61
equitable remedy
A judicial remedy that is based on fairness and justice.
62
charge on property
A legal claim against property to secure payment of a debt.
63
prevent unjust enrichment
To take measures that stop one party from benefiting unfairly at another's expense.
64
secure a debt
To guarantee that a financial obligation will be met.
65
force foreclosure and sale
The legal process of selling property to satisfy a debt.
66
defense
A legal argument used to counter a claim in court.
67
change in circumstance
A shift in conditions that may affect legal obligations.
68
receipt of benefit
The act of receiving an advantage or gain.
69
inequitable
Unfair or unjust in the context of legal obligations.
70
benefit is lost, destroyed, damaged, or passed on
The situation where a previously received advantage is no longer available.
71
one confers a benefit upon another
The act of providing an advantage or gain to another person.
72
no contract or duty
The absence of a legal obligation to provide a benefit.
73
unless volunteer
A condition where a person is not entitled to restitution if they provided a benefit voluntarily.
74
intent to make a gift
The purpose behind conferring a benefit without expectation of return.
75
no opportunity to reject
The lack of a chance for a recipient to decline a benefit offered.
76
unreasonable delay
A significant lag in asserting a legal claim that negatively impacts another party.
77
assertion of equitable claim
The act of formally stating a claim based on principles of equity.
78
prejudice to other party
Harm or disadvantage caused to another party due to delay or inaction.
79
denial of relief
The refusal to grant a remedy or assistance in a legal context.
80
plaintiff
The party who brings a lawsuit or legal action.
81
inequitable or wrongful conduct
Actions that are unfair or violate legal standards.
82
present suit
The current legal action or case being considered.
83
inadequacy of consideration
A situation where the value exchanged in a contract is insufficient.
84
inequality
A lack of balance or fairness in a transaction.
85
Rescission
Rescission is a contract remedy whose purpose is to restore the status quo ante. If applied, the contract will be cancelled and the plaintiff will be given back any consideration given by him to the defendant.
86
Legal Rescission
Rescission at law is where the plaintiff effects the cancellation of the contract by his own actions, e.g., when he gives the defendant notice of the rescission and returns any consideration received.
87
Equitable Rescission
Equitable rescission is where the rescission is effectuated by a decree of the court rather than by the action of the injured party. If rescission is granted, restitution is conditioned on the plaintiff's restoration of any benefits received from the defendant.
88
Mistake
Mistake in the formation of a contract is one of the bases for rescission.
89
Mutual Mistake
A mutual mistake means a mistake of fact common to all of the parties to the contract or instrument (i.e., every party must have entered into the contract under the same misconception of fact) that goes to the very basis of the bargain.
90
Unilateral Mistake
A unilateral mistake will not be a basis for rescission unless the party's unilateral mistake is known, or should be known, to the other party (the non-mistaken party).
91
Misrepresentation
A misrepresentation of a material fact, past or present, made with the knowledge of falsity and with the intent to deceive, upon which the plaintiff actually and reasonably relies, may be the basis for rescission.
92
Reformation
Reformation is an equitable remedy by which a court modifies or alters a written instrument to make it conform to the parties' previous understanding or agreement. There must have been a prior valid agreement between the parties, and the writing fails to conform as a result of mistake or fraud.
93
Expectation
Expectation is an interest protected in contract remedies. The purpose of damages is to put the plaintiff in as good as a position as if the defendant had performed the contract.
94
Reliance
Reliance is another interest which is protected in contract remedies. It is the money spent in reliance of the contract.
95
Essential Reliance
Essential reliance is the expenses incurred in the performance of a contract or in preparing to perform the contract. These expenses do not have to be foreseeable. Recovery is limited to the contract price.
96
Incidental Reliance
Incidental reliance is the expenses which were not necessary to comply with the contract, but incurred because of the contract. They must be foreseeable.
97
contract remedy
A legal means of enforcing a contract or seeking redress for a breach.
98
restoration
The act of returning something to its original state or condition.
99
cancellation of contract
The act of declaring a contract void, thus releasing all parties from their obligations.
100
return of consideration
The act of giving back anything of value that was exchanged in a contract.
101
notice
A formal communication or warning regarding an action or event.
102
court decree
An official order issued by a court of law.
103
condition
A stipulation or requirement that must be met for something to occur.
104
restore benefits received
To return any advantages or gains obtained from a contract.
105
mistake of fact
An erroneous belief regarding a fact that is material to a contract.
106
common to all parties
A situation or condition that is shared among all individuals involved in a contract.
107
basis of the bargain
The fundamental reason or rationale that underpins an agreement between parties.
108
expenses
Costs incurred in the performance of a contract.
109
because of contract
Circumstances or conditions arising directly from the contract.
110
foreseeable
Events or damages that can be anticipated or predicted.
111
contract does not limit recovery
A contract provision stating that recovery is not capped.
112
land sale contracts
Agreements specifically for the sale of real estate.
113
quantitative defect
A measurable shortfall in the performance of a contract.
114
cannot fully perform
Inability to complete all obligations of a contract.
115
specific performance on performable portion
Enforcement of the parts of a contract that can be fulfilled.
116
abatement on unperformable portion
Reduction in the contract price for parts that cannot be completed.
117
majority rule
The prevailing approach in legal determinations.
118
reduction of price
Decreasing the contract price based on certain conditions.
119
proportionately
In a manner that corresponds in size or amount.
120
missing land
Portion of land that is not included in a sale.
121
price
The monetary value assigned to a contract or item.
122
reduction
The act of decreasing something.
123
decrease of value
Reduction in worth due to certain factors.
124
valid clause
A legally enforceable provision in a contract.
125
sole remedy
The only solution available for a breach of contract.
126
breach of contract
Failure to fulfill the terms of a contract.
127
damages difficult to ascertain
Compensation that is hard to quantify after a breach.
128
amount is a reasonable forecast
The estimated damages that are justifiable based on the contract.
129
invalid liquidated damages clause
A clause that does not meet legal requirements for enforceability.
130
doesn't meet requirements
Failure to satisfy the necessary legal standards.
131
mandatory decree or injunction
A court order requiring specific action to be taken.
132
orders performance of promise
A directive from the court to fulfill contractual obligations.
133
definite terms
Clear and specific conditions outlined in a contract.
134
deny specific performance
To refuse the enforcement of a contract's terms.
135
injured party
The individual harmed by a breach of contract.
136
execution of contract
The act of signing and formalizing a contract.
137
specific performance not available to other party
Circumstances where one party cannot enforce performance.
138
Restatement of Contracts
A legal document summarizing the principles of contract law.
139
plaintiff has already performed
The party who has fulfilled their obligations under the contract.
140
court can secure performance
The ability of the court to ensure compliance with a contract.
141
enforcement of personal service contracts
Legal action taken to compel performance of personal services.
142
negative injunction
A court order preventing a party from acting in a certain way.
143
negative covenant
A promise not to engage in certain actions.
144
unique skills
Special abilities that are not easily replicated.
145
separate significance requirement
Condition that harm must be beyond mere breach of contract.

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