BE.C Outline

Question 1

Compensatory damages are based on the injury to P. They put the injured party in ______________.

Answer 1

The position they would have been had the injury not occurred.

Question 2

__________ are based on the injury to P. They put the injured party in the position they would have been had the injury not occurred.

Answer 2

Compensatory damages

Question 3

4 Requirements for Compensatory Damages

Answer 3

1. Causation (but for test)
2. Foreseeability (proximate cause)
3. Certainty (can’t be too speculative)
4. Unavoidability (must mitigate)

Question 4

3 Requirements for Punitive Damages

Answer 4

1. first awarded compensatory or nominal damages (or restitution any)
2. D’s fault greater than negligence
3. Relatively proportionate to actual damages

Question 5

3 Torts Legal Remedies

Answer 5

1. Compensatory Damages
2. Nominal Damages
3. Punitive Damages

Question 6

Plaintiff _______ recover both compensatory and restitutionary remedies.

Answer 6

Cannot

Question 7

Replevin vs. Ejectment

Answer 7

Replevin = personal property
Ejectment = real property

Question 8

2-Part Test for Replevin & Ejectment

Answer 8

1. P has a right to possession
2. Wrongful withholding by D

*can be combined w/ damages for lost use or benefit

Question 9

Recover possession of specific personal property through sheriff.

Answer 9

Replevin

Question 10

Recover of possession of specific real property through sheriff.

Answer 10

Ejectment

Question 11

3 Legal Restitutionary Damages

Answer 11

1. Restitutionary Damages
2. Replevin
3. Ejectment

Question 12

2 Equitable Restitutionary Remedies

Answer 12

1. Constructive Trust
2. Equitable Lien

Question 13

Equitable restitutionary remedies (constructive trust & equitable lien) are used when _____________

Answer 13

Money damages are inadequate because:
(1) property is unique, or
(2) defendant is insolvent

Question 14

Equitable restitutionary remedies (constructive trust & equitable lien) are used when money damages are inadequate because:

Answer 14

(1) property is unique, or
(2) defendant is insolvent

Question 15

Equitable restitutionary remedies (constructive trust & equitable lien) are used when _________ because:
(1) property is unique, or
(2) defendant is insolvent

Answer 15

money damages are inadequate

Question 16

_________________ (constructive trust & equitable lien) are used when money damages are inadequate because:
(1) property is unique, or
(2) defendant is insolvent

Answer 16

Equitable restitutionary remedies

Question 17

Equitable restitutionary remedies (____________) are used when money damages are inadequate because:
(1) property is unique, or
(2) defendant is insolvent

Answer 17

Constructive trust & equitable lien

Question 18

When to use constructive trust vs. equitable lien?

Answer 18

Constructive Trust = value of property went up
Equitable Lien = value of property went down

Question 19

4 Rules for Const. Trust & Equit. Lien

Answer 19

1. Inadequate legal remedy alternative
2. Tracing allowed to bank account
3. BFPs prevail over P so only option is to trace
4. P prevails over unsecured creditors

Question 20

4 Defenses to a Permanent Injunction

Answer 20

1. Unclean Hands
2. Laches
3. Impossibility
4. Free Speech [defamation or privacy publication]

Question 21

TRO & Preliminary Injunction - P must show:

Answer 21

1. Irreparable injury
2. Balance of hardships favors P
3. Likelihood of success

Question 22

TRO may be ex party provided _________.

Answer 22

Good faith effort

Question 23

Injunctive Relief

Answer 23

An order to do or not do something.

Question 24

4 Contracts Legal Remedies

Answer 24

1. Compensatory Damages [Direct & Consequential]
2. Incidental Damages
3. Nominal Damages
4. Liquidated Damages

*Punitive Damages NOT ALLOWED

Question 25

Liquidated Damages allowed when:

Answer 25

1. Damages are difficult to ascertain at k formation 2. Reasonable forecast of what the damages would be *if amount excessive, void as penalty *If liquidated valid, ONLY gets liquidated. If not, ONLY actual damages.

Question 26

Restitution for Unenforceable Contract

Answer 26

Plaintiff gets **value of benefit conferred**, even if greater than the unenforceable contract rate. Plaintiff can also get any property back if unique or if defendant is insolvent.

Question 27

Consequential damages are available for __________ foreseeable at time of contract.

Answer 27

Related damages

Question 28

Consequential damages are available for related damages ____________ .

Answer 28

Foreseeable at time of contract

Question 29

Restitution is based on the theory that D should not be ________, usually after P has at least partially performed.

Answer 29

**unjustly enriched**

Question 30

Restitution for Breaching Party

Answer 30

Traditional view is no recovery for already-rendered performance, but modern view permits recovery, but cannot be greater than contract rate and is reduced by any damages to non-breaching party.

Question 31

5 Requirements for Specific Performance

Answer 31

1. Contract is valid, certain & definite 2. P’s duties have been satisfied 3. Inadequate legal remedy alternative 4. Feasibility of enforcement 5. No defenses

Question 32

Uniqueness for personal property is tested at time of _________

Answer 32

**litigation** not at contract formation

Question 33

Covenants not to compete are enforceable if:

Answer 33

(1) services are unique And (2) scope (geographic & duration) is reasonable

Question 34

6 Defenses to Specific Performance

Answer 34

1. Unclean hands 2. Laches 3. Unconscionability (at time of formation) 4. Mistake 5. Misrepresentation 6. SOF

Question 35

Rescission

Answer 35

The original K is voidable & rescinded. Must be (1) grounds for rescission (contract formation defenses showing lack of assent) and (2) no valid defenses.

Question 36

Reformation

Answer 36

Changes written agreement to conform with parties’ original understanding.