Pg 2

Question 1

What are the four basic classes of remedies?

Answer 1

• coercive remedies: injunction and specific performance
  – damages
  – restitution
  – declaratory relief

Question 2

What are specific remedies?

Answer 2

Awards that the plaintiff would have gotten if the legal wrong had not happened

Question 3

What are damages?

Answer 3

Monetary compensation for a loss caused by the legal wrong of another.

Question 4

What are the different kinds of damages?

Answer 4

• compensatory
• punitive
  – general
  – special
  – economic
  – non-economic

Question 5

What do punitive damages do?

Answer 5

Punish the defendant for wrongdoing

Question 6

What are nominal damages?

Answer 6

These give public vindication as recognition that the plaintiff sustained a legal wrong. These declare the rights of the parties

Question 7

What is the extra thing that has to happen with regard to nominal damages?

Answer 7

They have to be requested. Although they are mandatory if the plaintiff’s constitutional rights were violated but he cannot prove any actual injury

Question 8

What are presumed damages?

Answer 8

These occur when actual damages are hard to prove and they allow recovery without evidence of actual loss. I.e.: defamation: presumes damage to reputation, so actionable per se

Question 9

What are injunctions?

Answer 9

When the defendant is ordered to do something or to refrain from doing something.

Question 10

What is the goal of an injunction?

Answer 10

To induce compliance through legal sanctions for not complying. It undoes the continuing effects of the wrong.

Question 11

If a defendant does not comply with an injunction, what happens?

Answer 11

He can be sanctioned for contempt

Question 12

Is it true that judges are immune from suits for damages?

Answer 12

Yes, but they can be sued for injunction or declaratory relief

Question 13

What is restitution?

Answer 13

This forces the defendant to discard a benefit if keeping it would be unjust enrichment.

Question 14

What is declaratory relief?

Answer 14

A judicial statement of the parties’ rightful legal positions on the matter. This is just educational and does not compel any action. The person then has to commence other legal action to enforce the rights or duties that the court recognized in this action.

Question 15

Before parties can get declaratory relief, what do they have to show?

Answer 15

A justiciable controversy

Question 16

What are express remedies?

Answer 16

Statutes sometimes expressly give the remedy by stating that a violation can be punished by damages, injunction, or restitutionary relief.

Question 17

What are implied remedies?

Answer 17

When the remedy is not expressly provided for in the statute. This is the usual approach

Question 18

What is the point of damages?

Answer 18

To compensate the plaintiff for loss suffered in violation of his rights

Question 19

What are the elements of damages?

Answer 19

– foreseeable
– certain
– unavoidable

Question 20

What does it mean that damages must be foreseeable?

Answer 20

They must be a reasonable foreseeable consequence of the wrongful act

Question 21

What does it mean that damages must be certain?

Answer 21

They must be measured with sufficient certainty. If they are too speculative, they cannot be given. This requirement is stronger in contract law than in tort because in tort it is sometimes hard to do this

Question 22

What does it mean that damages must be unavoidable?

Answer 22

The plaintiff must take reasonable steps to mitigate damages. If not, they are not unavoidable

Question 23

What is the difference between economic damages and non-economic damages?

Answer 23

– economic: objectively verifiable monetary losses. Ie: medical expenses, lost earnings or profits, cost of repair, diminution in value, etc.
– non-economic damages: subjective and non-verifiable losses. Ie: pain and suffering, emotional distress, injury to reputation, loss of consortium

Question 24

What are liquidated damages?

Answer 24

A clause that is inserted by mutual agreement into a contract where the parties attempt to determine what the damages should be if there is a breach

Question 25

If a liquidated damages clause is valid, what happens?

Answer 25

It is the sole determiner of the recoverable damages for breach

Question 26

What is the two prong validity test for liquidated damages?

Answer 26

– at formation, damages on breach must be DIFFICULT to forecast or uncertain.
– at formation the parties must make a reasonable attempt to ANTICIPATE what the damages will be

Question 27

If a liquidated damages clause is invalid, what happens?

Answer 27

It is just ignored and not enforced. The contract is treated like there wasn’t a liquidated damages clause and the plaintiff can only get the damages he can prove

Question 28

Who has the burden of proof with regard to liquidated damages?

Answer 28

This is on the party that is challenging the provision. He must demonstrate that it is unenforceable as a penalty

Question 29

What are consequential damages?

Answer 29

In addition to the standard measure, the plaintiff is compensated for any other damages suffered if they were reasonably foreseeable at formation. I.e.: on a land sale contract, if the seller breached and the buyer had to find another place to live, the consequential damages would be the expenses that he didn’t anticipate

Question 30

What is the test for consequential damages?

Answer 30

– at formation it was a FORESEEABLE consequence of the breach [in the ordinary course of events], OR
– at formation the seller could reasonably FORESEE the party incurring that expense

Question 31

What type of damages are consequential damages?

Answer 31

These are special damages, so they have to be specifically completed by the plaintiff and proven as to their extent

Question 32

What do you have to look at with regard to consequential damages?

Answer 32

Look at the facts to see if the expenses are reasonably foreseeable. If the seller knew or should have known something [like the housing market was tight and the buyer had to leave his home to move into his property, then it’s foreseeable he would have extra expenses to find a substitute place to live if the seller breached. But if the seller knew that the buyer was just flipping the house, he wouldn’t think that the buyer would have living expenses upon breach]

Question 33

What is good wording to discuss consequential damages on an essay?

Answer 33

“Damages are foreseeable as a probable result of a breach when they:
– follow from the beach in the ordinary course of events, OR
– occur as a result of a special circumstance that the breaching party knew about or had reason to know about.“

Question 34

Who has the burden of proof with regard to consequential damages?

Answer 34

The plaintiff has the burden of proof to show one of the two elements for consequential damages. If he cannot provide sufficient facts, then he doesn’t recover consequential damages

Question 35

If there is a contract to have a home built and the contractor built the home defectively, and this causes the buyer not to be able to host a family reunion and he has to pay $5000 to hold the reunion elsewhere, can he recover that $5000 as consequential damages?

Answer 35

Only if the contractor knew that the home was being built for that purpose

Question 36

What are incidental damages?

Answer 36

These are only recognized by the UCC and they only involve sale of goods. This includes any commercially reasonable charges that result from dealing with goods in the contract and they have to be a foreseeable consequence of the breach. It includes: inspection, receipt, transportation, care and custody or storage of goods that are rightfully rejected, etc.

Question 37

Incidental damages only apply to what kind of law?

Answer 37

UCC

Question 38

What are expectation interests?

Answer 38

This is the benefit of the bargain. Plaintiff gets what he would’ve gotten if the bargain hadn’t been disrupted.

Question 39

What are reliance damages?

Answer 39

P recovers the loss caused as a result of his reliance on the defendant’s misrepresentation. Just tries to put the P in the position he would’ve been if the bargain had never been entered. Plan to get the value of any expenditures he made in preparation to perform the contract or in personal performance of the contract prior to the breach. This only includes what the plaintiff extended in reliance on the contract

Question 40

What are the two remedies that are alternatives to each other, and you can only get one or the other?

Answer 40

Expectation interests and reliance damages. You can only get either expectation or reliance, never both.

Question 41

Which one usually results in a lower amount, expectation interest or reliance damages?

Answer 41

Reliance is usually less than expectation, but it is sometimes chosen when the expectation award cannot be measured with sufficient certainty

Question 42

What are compensatory damages?

Answer 42

They are meant to put the plaintiff in a position he would’ve been if the defendant hadn’t committed to legal right