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NY/ MBE Bar Study > Equity > Flashcards

Flashcards in Equity Deck (61):
1

What 5 requirements must a P show to obtain injunctive relief?

1. legally recognized right is being or about to be infringed
2. there is no adequate remedy at law
3. feasibility -- injunction is feasible and will effectively vindicate right
4. hardship to D does not greatly outweigh the benefit to P
5. no defenses are available

2

What must a court have to issue an injunction?

Personal Jurisdiction over the defendant

3

What is a mandatory injunction?

D must perform a particular act

4

What is a negative injunction?

D must cease performing a particular act

5

What are the most often encountered tort situations where an injunction may be granted?

1. Private Nuisance
2. trespass to land -- where trespass is continuous
3. waste
4. Conversion or Trespass to chattels
5. Invasion of Privacy
6. Defamation
7. Abuse of Judicial Process
8. Unfair Competition
9. Infliction of Physical Harm

6

What is a private nuisance?

The use of one's property in an unreasonable fashion so as to interfere with another's enjoyment of their property (limited to injury of a few ppl for private nuisance)

7

When may an individual enjoin a public nuisance against the general rule?

When the individual has suffered a special injury not suffered by the general public

8

What is a public nuisance?

Nuisance that damages all persons that come within its sphere of operation
**generally only state can seek to enjoin a public nuisance

9

What is ameliorative waste?

acts that result in the increase in the value of land but change its character (ex: historic house torn down to build a skyscraper) -- NOT ground for injunctive relief

10

What types of waste are grounds for injunctive relief?

1. Destructive -- positive acts cause permanent harm to land
2. Permissive -- not taking care of land

11

What are the various types of unfair competition?

1. Trade Libel
2. Inducing breach of K OR refusal to deal
3. Use of competitors trade secrets
4. Trademark Infringement
5. Trade Name Infringement
6. Copyright Infringement
7. Patent Infringement
8. Appropriations of Ideas (limited)

12

What factors will a court assess in determining whether a privilege to induce exists? (refers to inducing breach of K or refusal to deal in unfair competition scenarios)

1. What kind of relationship is the D's conduct affecting?
2. What is the nature of the Conduct? -- softer the better
3. What is the relationship b/w the parties?
4. What are the D's motives?
5. What social interests might be advanced?

13

When will the relationship b/w two parties make an inducement not to deal privileged?

When the parties are competitors
**competitors not privileged to induce breach of K

14

When will a relationship b/w a D and a third party make an inducement not to deal privileged?

When D is/has
1. responsible for third party
2. financial interest in third party
3. when D's advice is requested by third party

15

What 3 questions will a court ask to determine whether the use of a competitors trade secret is enjoinable?

1. Is the property a trade secret?
2. How was the trade secret taken? -- ct. more likely to enjoin if info taken wrongfully
3. What is the relationship of taker to owner? -- ex. if taker is fiduciary of owner ct. will likely enjoin

16

What is a trade secret?

valuable info that give is possessor a competitive advantage if kept secret

17

What is a trademark?

any mark, word, letter, number, design, picture or combination (of the previous) used to designate a product's identity. (Identifies the product's source)

18

What Factors are assessed in determining trademark infringement?

1. similarity of marks
2. similarity of goods
3. similiarity of geographical marketplace
4. similarity of type of marketplace
5. similarity of customers
6. similarity of price
7. Is there intent to cause confusion by second/infringing mark proprietor

19

What is a trade name?

Identifies the source of goods, services or businesses

20

What must be true of and Idea for injunctive relief to be granted to protect it?

Idea must be:
1. novel
2. commercially useful
3. reduced to some concrete form or outline

21

What types of legal remedies may be inadequate allowing an equitable remedy to be granted?

1. money damages
2. replevin
3. ejectment -- if sheriff refuses to act

22

What factors make money damages inadequate?

1. damages are speculative
2. D is insolvent
3. Irreparable Injury
4. Multiplicity of actions
5. No right to damages

23

What 2 main factors will a court asses in determining whether an equitable remedy is feasible?

1. Complexity of Act to be performed -- more complex act is to perform the more hesitant court will be to act
2. Continuous Acts - more supervision needed more hesitant court will be to act

24

What 3 steps will the court take to determine whether a proposed injunction will place an undue hardship on the D?

1. first ask will the injunction pose a undue burden on D
2. next weigh the hardship against the benefit to be gained by P
3. IF hardship incurred by D is considerable greater than benefit to P ct. will usually not issue injunction and order money damages instead

25

When will the court NOT balance the benefit to P against the hardship/burden to D?

1. When D's conduct is willful
2. When P has already asserted their claim/right and D still proceeds

26

What are the main equitable defenses?

1. Unclean Hands -- P acted improperly
2. Laches
3. Estoppel
4. Impossibility
5. Hardship (balancing)
6. Freedom of speech -- defamation cases

27

What are the 2 requirement of a Laches defense?

1. unreasonable delay in bringing the claim under the circumstances
2. Delay is prejudicial to D
**laches defense may be asserted before SOL period ends, key is prejudice

28

What is the estoppel defense

IF P's acts induce reliance by D who changes his position to his detriment or prejudice, then P may be estopped from asserting a claim against D

29

What are the two types of preliminary injunctions?

1. regular preliminary injunction -- granted after a hearing and remain in effect until the conclusion of a trial
2. temporary restraining order (TRO) -- emergency orders granted until a hearing can be convened

30

What must a party seeking a preliminary injunction show/do?

1. potential for irreparable harm if injunction not granted
2. Likelihood that P will prevail
3. Notice given to D
4. Bond posted

31

What 6 showings/requirement must a P show to obtain specific performance?

1. contract exists
2. all K conditions have been fulfilled
3. legal remedy is inadequate
4. mutuality of remedy exists
5. feasibility
6. no defenses available to D

32

What factors will a court assess in determining whether a K exists? (specific performance)

1. certainty of terms
2. existence of consideration
**parol evidence rule does not apply (allowed)

33

In a wholly executor K, when will specific performance not be granted?

When a time of the essence clause or condition precedent has not been satisfied

34

What is a time of the essence clause?

requires one party to perform within a stipulated period of time

35

What factors will a court weigh in determining whether a partially executed K qualifies for specific performance? (time of the essence clause in K)

2. Is loss to the other party small?
2. Undue hardship
3. waiver
4. Tardiness is De minimis -- only late by a little bit
5. judicial sale

36

When may a vendor/seller seek specific performance if a deficiency (part-performance) is involved?

When the deficiency is minor
**abatement will be available for unperformed portion of K

37

When may a vendee/buyer NOT seek specific performance if a deficiency is involved?

When there is a large deficiency
**S.P. still available where there is a substantial deficiency (which is smaller than a large deficiency)

38

What factors will be assessed in determining whether a legal remedy is adequate in a S.P. situation?

1. Rareness/Uniqueness -- real property (land) always unique
2. D insolvent
3. Damages are speculative
4. Multiple suits necessary

39

What is required for personal property to qualify as unique for S.P. purposes?

1. Unique in kind OR
2. Property of personal significance to Vendee/buyer
3. Property is in short supply

40

What type of contract is S.P. not available?

Personal service contracts

41

What is affirmative mutuality? (mutuality of remedy)

concept that the P should be allowed to enforce the K b/c the D would have been allowed to.

42

For land sale K's, when is enforcement likely not feasible?

When just the seller and the Res (property) are before the court

43

What defenses are available to the D in a S.P. action?

General K defenses including:
1. SOF
2. Misrepresentation
3. Mistake
AND
Equitable Defenses (laches, unclean hands etc.)

44

What acts are sufficient part performance that would take a K out of the SOF and making S.P. still available?

1. possession coupled with valuable improvements
2. possession coupled with payment
3. performance of valuable services

45

What must be true of a mutual mistake for it to qualify as a valid defense to S.P.?

Must be a material mistake of fact -- mistake of law not included

46

When will a unilateral mistake suffice as a defense to S.P. against the general rule?

If the non-mistaken party knew or should have known of the mistake

47

What 2 requirements must be met for covenants not to compete to be enforceable?

1.Service must be unique
2. Covenant must be reasonable

48

What 4 factors are assessed in determining the reasonableness of a covenant not to compete?

1. covenant is reasonably necessary to protect a legitimate interest of employer
2. reasonable geographic scope and duration
3. must not unreasonably burden one party
4. covenant must not harm general public

49

IF there are directions in a will to sell property, when does equitable conversion (E.C.) occur?

E.C. occurs at the death of the testator (person who wrote will)

50

What is the significance of the Uniform Vendor and Purchaser Risk Act?

It places the risk of loss in a land sale contract on the seller UNLESS the buyer had...
1. title OR
2. possession OR
3. K says risk of loss on buyer

51

What is the general effect of rescission?

leaves the parties as though the contract had never been made

52

What are the 2 main grounds for rescission?

1. Mistake
2. Misrepresentation

53

What are the 3 types of mistakes that qualify for rescission?

1. Mutual mistake of material fact
2. unilateral mistake -- where one party knew of mistake OR where extreme hardship to mistaken party
3. Mistake of law

54

What is required for a rescission action under a misrepresentation theory?

2. material misrepresentation of law or fact
2. actual reliance
**whether misrepresentation intentional or innocent is irrelevant

55

What are the defenses to an action for rescission?

1. general equity defenses
2. Negligence of Plaintiff

56

What is reformation (of K)?

remedy where a writing that sets forth the agreement b/w parties is changed so it conforms with the original intent of the parties

57

What is the threshold issue that must be dealt with to determine if reformation is an available remedy?

Is there a valid K? If no valid K then reformation not available

58

What are the 2 ground for a reformation action?

1. Mistake -- mutual or unilateral coupled with fraud
2. Misrepresentation -- intent irrelevant

59

What are the defenses to reformation?

1. general equity defenses
2. existence of a bona fide purchaser

60

What 3 defenses are not defenses to reformation?

1. P's negligence
2. Parol evidence rule
3. statute of frauds (SOF) -- EXCEPT where reformation would ADD land to the writing

61

When may a donee of an instrument conveying a gift reform the gift instrument?

ONLY if
1. donee detrimentally relied on the gift as conveyed OR
2. donee relied on the original intent of the donor which was incorrectly expressed in the gift instrument