Tort Remedies: Restitutionary Damages

Question 1

In tort, what are “restitutionary remedies”?

Answer 1

“Restitutionary remedies” may be LEGAL or EQUITABLE and are an alternative to compensatory damages where D has obtained a BENEFIT, retention of which amounts to UNJUST ENRICHMENT

Objective –> restore D’s unjust gain to P

Question 2

In tort, what are the types of “restitutionary remedies” (7)?

Answer 2

LEGAL Restitutionary Remedies:

1. Restitutionary Damages
2. Repleving (claim and delivery)
3. Ejectment

EQUITABLE Restitutionary Remedies

4. Constructive Trust
5. Purchase Money Trust
6. Equitable Lien
7. Injunction

Question 3

What are “resitutionary damages”?

When are they available?

Answer 3

“restitutionary damages” are a LEGAL remedy that obligates D to pay P REASONABLE VALUE of benefit unjustly obtained.

Benefit can be conferred as result of –> mistake, duresss, tort or breach of K

If tort –> available only where tort results in a benefit to D

Question 4

What is “Replevin” ?

Answer 4

“replevin” is a LEGAL remedy that permits P to recover, before trial, possession of specific CHATTEL wrongfully taken or detained

NOTE –> judicial hearing is generally required to make a prejudgment seizure valid

Question 5

What is “Ejectment” ?

Answer 5

“ejectment” is a LEGAL remedy to restore possession of real property from which P was wrongfully ousted

Question 6

What is a “constructive trust”?

What are the requirements?

Answer 6

“Constructive trust” = an EQUITABLE restitutionary remedy that creates a “trust” to compel D to RECONVEY title to a property unjustly retained.

1. D has title to property
2. D’s acquisition can be traced to property that D wrongfully acquired (fraud, undue influence, mistake, etc)
3. D’s retention of property would result in unjust enrichment
4. There is no adequate remedy at law (most jurisdictions)

NOTE –> w/ regards to #4, D’s insolvency IS sufficient

Question 7

With regards to a “constructive trust” - what defenses apply?

Answer 7

Bc “constructive trust” is an equitable remedy, the usual equity defenses apply

• laches
• unclean hands
• transfer of legal title to BFP

Question 8

What is the effect of a “constructive trust”?

Answer 8

• D must transfer title to P
• No deficiency judgment is available
• gets priority over other secured creditors

NOTE –> will still lose to BFP

Question 9

What is a “purchase money resulting trust” (come back to - trusts outline)

Answer 9

come back to

Question 10

What is an “equitable lien”?

What are the requirements?

Answer 10

“Equitable lien” = a lien imposed on D’s property to secure payment of debt owed to

Requirements (similar to “constructive trust”:

1. D has title to property OR D’s property was improved w/ P’s property or proceeds thereof
2. D’s acquisition can be traced to property that D wrongfully acquired (fraud, undue influence, mistake, etc)
3. D’s retention of property would result in unjust enrichment
4. There is no adequate remedy at law (most jurisdictions)

NOTE –> if p’s property is not used to acquire title, ONLY an equitable lien will be available (not a constructive trust)

Question 11

With regards to an equitable lien - what is the rule w regards to the enhanced value of the property?

Answer 11

equitable lien ONLY be enforced up to the amount of P’s claim

HOWEVER – P may seek deficiency judgment in addition (

Question 12

What is an injunction?

When is it an equitable restitutionary remedy?

Answer 12

injunction = decree ordering D to perform or not to perform certain acts

-may be available where legal remedy is not adequate (see also other requirements)

It is an equitable restitutionary measure when court orders D to make specific restitution