Midterm

Question 1

4 limitations to damages

Answer 1

1) Causation: “but for” 2) foreseeability: proximate cause (type, not extent of harm, was reasonably forseeable); 3) certainty: proven and calculated with reasonable certainty. 4) unavoidability/duty to mitigate: reasonable and timely steps to mitigate losses

Question 2

pure economic loss rule

Answer 2

no pure economic loss without physical harm to P’s person or property unless intentional tort or professional malpractice

Question 3

punitive damages requirements

Answer 3

1) compensatory or nominal damages required first; 2) requires willful conduct (malice, oppression, fraud); 3) proportionality factors 9:1

Question 4

Types of Personal Injury Damages (3)

Answer 4

1) pain (physical) and suffering (mental); 2) medical expenses; 3) lost income (wages, diminished earning capacity)

Question 5

Future losses recoverable?

Answer 5

Yes, preponderance of evidence with reasonable certainty BUT must be discounted to present value and account for inflation

Question 6

Survival Action

Answer 6

P represents D’s estate; can recover pain and suffering; medical expenses, lost wages

Question 7

Wrongful Death

Answer 7

grant recovery for pecuniary injury resulting to the spouse and next of kin for a wrongful death loss of support and consortium (NO pain and suffering)

Question 8

Trespass to land Rule

Answer 8

intentional physical invasion of another’s land. intent: desire and purpose to invade (mistake is not defense); physical invasion: entry on another’s land without permission, remaining on land without the right to be there; placing object on land

Question 9

trespass to chattels

Answer 9

1) intentional (intend to do act, mistake is not defense, transferred intent ok); 2) interference with P’s use or possession of personal property (chattel is harmed, p can’s use/possess)

Question 10

Conversion

Answer 10

1) intentional (no transferred) 2) substantial interference with P’s ownership of chattel (extent of harm warrants paying full value)

Question 11

Negligence

Answer 11

1) Duty: act like a reasonable person, foreseeable to whom duty is owed 2) Breach: failure to meet standard of care 3) causation (actual: but for; proximate: reasonable foreseeability, egg shell P) 4) damages: actual injury required

Question 12

public nuisance

Answer 12

substantial, unreasonable interference with health, morals, welfare safety or property rights of the community

Question 13

private nuisance

Answer 13

substantial, unreasonable interference with another private individual’s use or enjoyment of his land or land in which he has an interest.

Question 14

Substantial interference (public & private nuisance)

Answer 14

interference that is (1) offensive, (2) inconvenient, or (3) annoying to the average person in the community.

Question 15

Unreasonable interference (public & private nuisance)

Answer 15

a.The harm to plaintiff outweighs the utility of defendant’s conduct; OR
b.The harm caused to plaintiff is greater than plaintiff should be required to bear without consideration.

Question 16

factors court considers for public nuisance

Answer 16

1) location of nuisance; 2) frequency and duration; 3) degree of damage; 4) social value of the activity

Question 17

public nuisance standing

Answer 17

private party suffered damage that is different in kind and NOT MERELY DEGREE than suffered by public

Question 18

Nuisance defenses

Answer 18

1) legislative authority is persuasive but not absolute
2) coming into nuisance

Question 19

Remedy for destroyed personal property

Answer 19

fair market value minus scrap/salavge, plus ensuing loss; if no FMV, actual value to owner (NOT sentimental value)

Question 20

Remedy for damaged property

Answer 20

dimunition in value OR reasonable cost of repair + loss of use/profits -damages reasonably avoided

Question 21

Fluctuating markets?

Answer 21

highest market value between time of injury and time of trial PLUS interest, as long as P was reasonably diligent in bringing suit

Question 22

Loss of Use

Answer 22

P must prove P (1) needed the property and (2) was prevented from using it by D’s action
Measure = (1) cost to rent a temporary replacement or (2) rental value lost for inability to rent out P’s property, both for a reasonable period until permanent replacement can be obtained

Question 23

Lost Profits

Answer 23

P must prove property was used to generate income
Consider all factors relevant to likelihood of success of business/transaction (ex. Business conditions, similar transactions, expert testimony, etc.)

Question 24

Trespass Damages (compensatory)

Answer 24

no damage, but nominal damages may be available; more significant: compensatory damages available (rental value of the land for the time period land was wrongfully possessed)

Question 25

Nuisance compensatory damages

Answer 25

Permanent injury: difference in the fair market value of land before and after the injury Temporary injury: the cost of repair or the diminished rental value plus damages for loss of use or discomfort & annoyance

Question 26

Restitution

Answer 26

prevents unjust enrichment where D has benefited at cost to P

Question 27

Restitution Legal Remedies

Answer 27

1) Money: give money back 2) Replevin: give personal property back + damages for loss of use 3) Ejectment: give real property back Damages for harms caused Damages for lost rental value/loss of use Damages for mesne profits Mesne: profits received as a result of wrongful possession (like actual rents received). If seek mesne profits, a good faith D is entitled to credit for value of any improvements made to the property.

Question 28

Equitable Restitution (2)

Answer 28

Constructive Trust, Equitable Lien

Question 29

Constructive Trust

Answer 29

fictional trust that gives P to title of property D unjustly obtained that's traceable to D's wrongful behavior

Question 30

bona fide purchaser limitation

Answer 30

If the res is transferred to a bona fide purchaser (1) for value and (2) without the bona fide purchaser’s actual or constructive notice of P’s equitable interest in the res, P may not enforce P’s equitable interest in the res against the BFP

Question 31

Requirements for constructive trust and equitable Lien

Answer 31

1) D holds title to res 2) res belongs to P bc it can be traced to D's wrongful behavior 3) D's retention of res would result in unjust enrichment

Question 32

Equitable Lien difference from Constructive Trust

Answer 32

C: gets whole res; E: Works if P is entitled only to a portion of the res ALWAYS talk about equitable lien when you talk about constructive trust even if it’s not a good option just for extra points

Question 33

Last intermediate balance rule

Answer 33

But, when D dissipates commingled funds and the account balance drops to below the amount belonging/traceable to P, P’s money is considered dissipated

Question 34

Spectrum of restitution liability

Answer 34

innocent, negligent, conscious

Question 35

Temporary Restraining Order (TRO)

Answer 35

-stops action until hearing (14 days) -threat to immediate future injury

Question 36

Preliminary Injunction

Answer 36

-waits until full merits are determined by court -threat to immediate future injuryh

Question 37

Elements/RS for TRO and Prelim Injunction

Answer 37

-Court has DISCRETION to issue if 1) P is likely to succeed on merits (liability and defenses) (strong probability, not certainty) 2) irreparable harm/inadequate legal remedy 3) balance of equities (weigh the relevant hardships: P,D, public interest)

Question 38

How to show irreparable harm

Answer 38

(a) identify the harm, (b) explain why its irreparable or the remedy is inadequate

Question 39

Permanent Injunction

Answer 39

0) Ripeness (an demonstrate that there is a realistic threat that future harm is likely to occur, concrete, not just personal fear/mere possibility) 1) irreparable harm 2) feasibility of enforcement: consider admin burden on court 3) balance of equities 4) D has no defenses

Question 40

Defenses to Equitable remedies (3)

Answer 40

Unclean hands Laches Acquiescence

Question 41

Unclean Hands

Answer 41

P engaged in wrongful conduct (fraudulent, illegal, or willful—or even reckless or grossly negligent) and that is directly related to the claim

Question 42

Laches

Answer 42

P unreasonably delayed and D suffered material prejudice

Question 43

Acquiescence

Answer 43

Plaintiff knowingly fails to object to an infringement of Plaintiff’s rights By Defendant who acted unknowingly and without malice

Question 44

Declaratory Judgment

Answer 44

actual justiciable controversy (ripeness) There must exist an actual, live, concrete dispute between the parties

Question 45

What type of damages can you get for tort?

Answer 45

compensatory (TALK FIRST), nominal, punitive

Question 46

Mesne

Answer 46

profits received as a result of wrongful possession (like actual rents received). If seek mesne profits, a good faith D is entitled to credit for value of any improvements made to the property.

Question 47

Defense to unjust enrichment

Answer 47

Officious intermeddler or Good samaritan

Question 48

How to argue against defense to unjust enrichment

Answer 48

D exercised a meaningful choice to accept the benefit offered by P OR 2) D is in an emergency situation and all 4 elements are met Benefit conferred by P goods or services was necessary to prevent D’s serous bodily harm or pain P intended to charge for conferring the benefit P did not have reason to know that D would not consent to receiving the benefit and D’s consent was impossible (D was unconccious or a minor)

Question 49

If property value has increased, Con Trust or Equit Lien and why?

Answer 49

Constructive trust, because if property value is more than unjust enrichment, P gets to keep any increase. For Equit Lien, P can get deficiency judgment when property value decreases

Question 50

battery

Answer 50

intent, harmful or offensive contact

Question 51

assault

Answer 51

intentional causing of imminent harmful or offensive contact

Question 52

IIED

Answer 52

intent, severe emotional distress, extreme and outrageous conduct

Question 53

Survival action

Answer 53

the decedent’s estate may recover the following types of damages up until the time of the decedent’s death: (1) pain & suffering, (2) medical expenses, and (3) lost wages

Question 54

Wrongful Death

Answer 54

For a wrongful death claim, the decedent’s spouse or next of kin may recover the following types of damages: (1) medical expenses (so long as there is no double recovery for the same elements of loss under the survival action); (2) funeral & burial expenses; (3) loss of support (future income), reduced to present value; and (4) loss of consortium (companionship)

Question 55

Punitive damages

Answer 55

Requires willful conduct (malice, oppression, or fraud). Proportionality factors and 9:1 rule.

Question 56

When does UCC apply

Answer 56

Contracts for goods (moveable tangible property) are governed by the UCC. Everything else is governed by common law (services, land)

Question 57

Predominance test

Answer 57

If both goods & services are involved, then use the predominance test to choose which law governs over the entire contract: What is the predominant purpose of the contract as a whole?

Question 58

Valid contract requires what elements

Answer 58

offer, acceptance, consideration and no defenses

Question 59

anticipatory repudiation

Answer 59

when a contracting party makes an unequivocal expression before the time for performance is due that the party will not perform under the contract

Question 60

Offer

Answer 60

An offer is a manifestation of willingness to enter into a bargain. Elements: (1) intent, (2) certain and definite terms, and (3) communication to the offeree

Question 61

Acceptance (contracts)

Answer 61

An acceptance is a manifestation of assent to the terms of the offer and can be by words or by conduct. (unilateral or bilateral)

Question 62

Mirror Image rule (non UCC)

Answer 62

when acceptance’s terms vary from offer’s terms— i.e., any conflict = rejection & counteroffer

Question 63

Mirror Image Rule UCC

Answer 63

CC treats any “expression of acceptance” or “written confirmation” as acceptance. If additional terms, then battle of forms (if both parties merchants, then K with exceptions). If one is not, then just proposal

Question 64

UCC: when a buyer makes an offer to buy goods, the seller may respond to just ship goods. State rest of rules

Answer 64

If the goods are conforming → seller acceptance If the goods are non-conforming If seller acknowledges nonconformity = seller made “accommodation” / counteroffer to the buyer—and now the buyer is free to accept or reject If seller does NOT acknowledge nonconformity = offer has been accepted and breached

Question 65

Consideration

Answer 65

Bargained-for exchange of legal detriment

Question 66

Promissory Estoppel

Answer 66

Even if consideration is lacking, court can still enforce a promise to prevent injustice by relying on promissory estoppel as a substitute Elements: (1) Promisor makes a promise, (2) Promisor foreseeably induces promisee’s reliance, (3) Promisee actually relies on the promise Remedies - limited to reliance damages

Question 67

Defenses to contract formation (7)

Answer 67

Sof, misrepresentation/fraud, unconscionability, mistake, misunderstanding, illegality, lack of capacity (legal incapacity, duress, undue influence)

Question 68

Statute of frauds

Answer 68

Under SOF, contracts for the sale of goods worth $500 or more and interest in land must be in writing and signed by the party to be charged. And performed within a year of contract forming

Question 69

Exception to Statute of frauds

Answer 69

However, SOF cannot be used as a defense to reformation when the mistake to be corrected in the written contract is the omission of an essential term due to scrivener’s error or misrepresentation/unilateral mistake

Question 70

Parol Evidence Rule

Answer 70

limits admission of parol evidence (1) made before or contemporaneous with (2) a written contract Contradictions - not allowed Supplements only allowed when partially integrated (final expression not intended to include all details)

Question 71

Exception to parole evidence

Answer 71

PER does not apply in the context of a claim for reformation

Question 72

Defenses that excuse performance (3)

Answer 72

Impossibility (event happened that made it impossible), impracticability (extremely and unreasonably difficult, didn't think it would occur), frustration of purpose (event destroys purpose of contract)

Question 73

primary contract damages

Answer 73

(1) liquidated damages, (2) expectation damages, (3) reliance damages, (4) nominal damages

Question 74

Secondary contract damages

Answer 74

(1) consequential damages, (2) incidental, (3) punitive

Question 75

liquidated damages

Answer 75

Damages that contracting parties agree to in advance in case of a breach of contract Modern view: courts will enforce as long as the damages are reasonable in light of the anticipated or actual loss

Question 76

Nominal Contract Damages

Answer 76

Damages awarded in name only to vindicate plaintiff’s rights when plaintiff prevails on a breach-of-contract claim, but plaintiff has suffered no compensable loss

Question 77

Consequential damages are available for what primary damages in contracts

Answer 77

expectation damages, NOT reliance damages

Question 78

Buyer's Cover (contracts)

Answer 78

-no obligation -must be (1) in good faith and (2) without unreasonable delay. This applies to both (a) substitute good and (b) cover price paid.

Question 79

Seller's resale contracts (like cover)

Answer 79

must be (1) in good faith and (2) in a commercially reasonable manner -no obligation

Question 80

Contracts Restitution

Answer 80

A plaintiff may seek restitution when the plaintiff has performed certain services for the defendant, the services were rendered at the defendant’s request, and The services conferred a benefit on the defendant. The plaintiff may recover either the fair market value of the plaintiff’s services or the amount gained or saved by the defendant.

Question 81

Recission

Answer 81

equitable remedy that avoids or unmakes a contract so as to put the parties back in the position they were in before the contract was made.

Question 82

Recission elements

Answer 82

Rescission requires no meeting of the minds, proper grounds for requesting rescission (any contract formation defense), and no defenses granting it.

Question 83

proper grounds for recission

Answer 83

mutual mistake, unilateral mistake and misrepresentation. Misrepresentation occurs when one contracting party makes a false statement or omission of material fact, and the other party justifiably and actually relies on the misrepresentation and suffers actual damages. Misrepresentation can be innocent, negligent, or fraudulent (i.e., knowingly and with intent to induce reliance). If fraudulent, P can also recover punitive damages

Question 84

Defenses and NOT defenses for recission

Answer 84

Defenses: unclean hands, laches, acquiescence, adversely affect BFP's rights Not defense: PER, SoF, negligence (not reading carefully)

Question 85

Reformation

Answer 85

Reformation is an equitable remedy that allows the judicial rewriting of a written agreement to reflect the parties’ true intent and conform to the parties’ actual agreement.

Question 86

Reformation elements

Answer 86

Reformation requires the existence of an agreement, a proper ground for requesting reformation, and there must not be any defenses to granting it

Question 87

Proper ground for reformation

Answer 87

One way to establish proper ground is when there is a meeting of the minds but a mistake occurs in the execution of the written contract, such as a scrivener’s error or typo that omits or alters an agreed-to term Another ground for reformation is unilateral mistake, which can be caused by the other party’s misrepresentation.

Question 88

Specific Performance in Contracts (elements)

Answer 88

1) an inadequate legal remedy (money damages unavailable, loss of chance/advantage) 2) valid contract with definite and certain terms 3) all contract conditions are satisfied and both parties are ready and able to perform 4) feasibility of enforcement and no defenses

Question 89

Reasons for "feasibility of enforcement"

Answer 89

negative injunctions are easier to enforce, while mandatory injunctions are harder to enforce and are therefore disfavored. This is especially true if taste, judgment, or skill is required to determine the defendant’s compliance with the order. Also, courts typically will not order a defendant’s specific performance of personal service contracts

Question 90

illusory promises

Answer 90

vague consideration "i promise to buy as many as ai want". REquirement and Output contracts are NOT illusory (seller will meet all of buyer's requirements or buyer buys all of seller's output)

Question 91

Issues in consideration

Answer 91

illusory promises (i promise to buy as many as a i want) inadequate consideration (gifts, nominal, past benefits, pre existing duty)

Question 92

Statute of Frauds

Answer 92

Requires 5 types of K in writing: Marriage, Real property, debt, One year, Goods (MR.DOG)

Question 93

Contracts defenses (formation and enforcement)

Answer 93

Formation (SoF, misrepresentation/fraud, unconscionability, mistake, PER, lack of capacity like duress or undue influence) Enforcement (inpossibility, impracticability, frustration of purpose)

Question 94

Misrepresentation/fraud

Answer 94

-can be innocent, negligent, or fraudulent 1) false statement or omission 2) justified and actual reliance 3) damages (punitive if fraudulent)

Question 95

Unconscionability

Answer 95

Contract is so unfavorable to one party that no reasonable person would have agreed to it (terms or process (s/P)

Question 96

Mistake

Answer 96

About a basic assumption existing at time of K formation 2. Material effect on deal 3. Adversely affected party did not assume the risk of the mistake Unilateral: other party should have known about mistake

Question 97

Modification common law v ucc

Answer 97

Common: needs mutual assent and consideration UCC: mutual and good faith

Question 97

impossibility

Answer 97

performance literally impossible

Question 98

impracticability

Answer 98

event happened, performance is extremely and unreasonably difficult

Question 98

Frustration of purpose

Answer 98

event happened that destroys purpose to enter contract