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Flashcards in Remedies Deck (24):

Compensatory Damages

Requirements -
MCPF Mairin will Certainly Pass Florida
M - Mitigation
C - Certainty
P - Proximate cause
F - Factual Cause

Goal to make Plaintiff WHOLE, position had the injury/breach not occurred

Personal injury -
"The judgment must be a single lump sum payment that will be discounted to present value w/o taking inflation into account (except under the modern rule)"

Contracts -
Direct Damages - flow inherently from the wrong (ex. expecation measure)
Consequential Damages - related damages FORSeeable @ time of formation; indirect consq of breach (ex. lost profits, ! LOST REPUTATION);
-only available to buyer in K


Nominal Damages

awarded to P w/o actual injury, but to establish or vindicate P's Rights

-Avail in Contract law too!


Punitive Damages

awarded to punish D when P is more than negligent;

-awarded in amount relatively proportionate to actual damages, no greater than 9:1

-Never given alone, to qualify:
P must 1st win Compensatory OR Nominal Damages; or Restitutionary (only if c/a in TORT)

NOT Avail in Contract Law! So try to frame C/A as FRAUD...


Restitutionary Damages

when D has been unjustly enriched; Look to Value of benefit conferred on D


Compensatory & Restitutionary Damages

Give P the larger of the two.


Replevin !!

legal restitutionary remedy that allows for recovery of specific personal property wrongfully taken. SHERIFF will re-possess, but sometimes won't...

P recovers possession of Specific Personal Prop IF
1. P has right to Possession
and 2. there is wrongful witholding by D

-CAN recover chattel BEFORE trial IF:
1. P posts a BOND (to show has $ to compensate D if wrong)
2. D can Defeat immediate recovery by posting a RE-DELIVERY Bond (and then D can keep until AFTER Trial.

*almost always coupled w/ damages (compensatory or restitutionary) for lost use OR benefit to D during time of detention

BFP cuts off claim



legal restitutionary remedy that allows for recovery real property wrongfully taken

P recovers possession of specific real property if:
1. P has right to possession and
2. there is Wrongful witholding by D
3. D Must be IN Possession!!
SHERIFF ejects D.

*almost always coupled w/ damages (compensatory or restitutionary) for lost use OR benefit to D during time of detention


Constructive Trust

Equitable remedy implied in law and imposed on property when retention of prop by D would result in unjust enrichment. D must HAVE TITLE (not possession).
D serves as trustee and must return prop to P;

1. Stolen money MUST be specifically identified and TRACED to possession of wrongdoer! NOT AVAIL if prop can't be traced SOLELY to P

2.Some juris require INADEQUATE LEGAL REMEDY! (ex. insolvent)
3. BFP cuts off claim
4. P will prevail over unsecured creditors

-Best choice when Prop has gone UP in value bc want it back! P gets benefit of any enhanced value

-Some juris have REPLENISHMENT theory - can only recover amount intended to be substituted for restitution of claim


Equitable Lien

Equitable CHARGE$ on property imposed by law to prevent unjust enrichment; imposed on improperly acquired property to which D has TITLE (not possession).

MUST show:
1. wrongdoer misappropriated P's prop under circumstances creating debt/obligation pay
2. P's prop be identified and TRACED to TITLE held by D, but may still be AVAIL if can't trace solely to P, to prevent unjust enrichment
3. Retention of prop would result in unjust enrichment.

Prop subject to immediate COURT DIRECTED SALE. Money goes to P. IF sale is less than FMV when taken, a DEFICIENCY judgment will be issued for the difference against D's other assets.

1.Tracing permitted
3. BFP cuts off claim
4. P will prevail over unsecured creditors

-Best choice when prop has gone DOWN in value bc P gets deficiency for loss in value


Constructive Trust & Equitable Lien RULES

1. inadequate Legal Remedy alternative
(insolvent, Unique)
2. Tracing is permitted
3. BFP will prevail over P
4. P will prevail over UNSECURED creditors.
(but same footing for deficiency judgment)


Preliminary Injunction

P must establish:
1. Irreparable Injury (Time Frame - while waiting for full trial)
-BALANCE against hardship D will suffer if TI granted

and 2. P's must establish likelihood of success on CLAIM (probability)

3. Court should impose a BOND requirement on P to reimburse D if injunction injures him and P does NOT succeed.

4. Notice required


Temporary Restraining Order

issues pending a hearing to determine if Prelim injunction should issue

SAME TEST as Prelim Inj, but can be Ex Parte.
-NO NOTICE nor Adversarial Proceeding required, but must make g/f effort if can

Limit 10 days (14 in Fed ct)


Permanent Injunction

IFBD - I'm Feeling Bold & Determined!
Amost always coupled w/ damages for period prior to inj.

1. Inadequate Legal Remedy (often LAND)
Sheriff won't help; D puts redelivery bond & leaves; insolvent, irreparable injury, prior history of litigation by the parties that won't end.

2. Feasibility of Enforcement
-harder w/ req action bc hard to supervise and ensure compliance; skill/judgment series of acts over time, out of state D

3. Balancing of hardships (!nuisance/trespass)
(P's benefit if granted vs D's hardship)
a. grant UNLESS Gross Disparity between hardships;
b. NO balancing if D's conduct was WILFULL!
c. consider Hardship to PUBLIC
d. consider granting money damages instead

4. Defenses
clock runs when P learns of injury & cuts off relief when BOTH UNREASONABLE & PREJUDICIAL
-Unclean hands (related to suit)
-Impossibility (impossible to carry out inj, rare)
-Free Speech (denied bc based on 1A right)

1. parties
2. EEs and AGENTS acting w/ NOTICE
3. others acting in CONCERT w/ D



Must obey law, or move to have it Modified or Resolved. Otherwise...

Civil (to coerce)
D holds the keys to the jailhouse through compliance; Money Fine and Imprisonment

Criminal (to punish)
D stays in prison for set time.


Liquidated Damages - DR

Valid if
1. D - Damages very difficult to ascertain at time of K formation and
2. R - Reasonable forecast of what they would be and Not an excessive penalty

! TRICK - Clause that says you get EITHER liquid dmg or actual damages is VOID!! Give actual Dmg


Restitution in Contracts

Quasi Contract legal restitutionary remedy that awards P sum of money measured by REASONABLE value of D's ill gotten gain.

Use when Contract FAILS after P has rendered performance (partial or complete); give value of benefit conferred (OK if more than K value)
1. K is unenforceable (mistake, capacity, sof etc.)
2. contract is breached

P as Non breaching Party -
-Get Reasonable value of Svcs or Increase in value
-if Prop UNIQUE or D INSOLVENT, get Property back

1. Tradl - no recovery
2. Modern - yes recovery bc no windfall permitted, BUT
A. cannot win more than K value and
B. amt reduced by dmg to non breaching party


Specific Performance

"Cha Cha is Fairly Difficult, so I will Specifically Perform it"
C - contract is valid, definite and certain
C - conditions precedent to performance have been fulfilled
I - inadequate legal remedies
F - feasible
D - defenses

Equitable Remedy where D is required to perform:
*Special seller's rule for real prop - Seller Always gets Sp Perf

1. Contract is valid, definite, & Certain (+ dmgs)

2. Conditions precedent to perf have been fulfilled (performed, ready to, or excused) - Land Sale
-Seller as P - can Sp enforce if MINOR deficiency UNLESS seller can Cure by closing
-Buyer as P - can enforce even if MAJOR, but not VERY major.

SAY "Court will ABATE/lower the purchase price to take into account this defect in consideration."

B. Time is of Essence
-ex. late payment on final purchase price, SELLER keeps deposit
1. loss to seller minimal
2. lateness minimal
3. waiver when late in past,
4. buyer would suffer undue hardship

BAR - GIVE Sp perf !!!
Modern - if don't give, P gets Restitutionary relief

3. Inadequate legal remedies
(speculative, insolvent, need multiple suits, unique)
JUST BC u have LIQ D, not nec adequate unless says only remedy.
-ALL Land is unique!!
-Personal prop UNIQUE if @ time of LITIGATION -
a. one of a kind/rare,
b. personal significance to buyer or
c. special circumstances (shortage)

4. Feasibility of Enforcement
-NO Sp perf for personal services K (servitude & -enforcement probs)
-Non Compete Enforceable if:
1. svcs unique &
2. Scope (time/place) Reasonable

5. Defenses
Equitable (Laches, Unclean hand,Unconscionability Eggregious! @ time of formation, Misrepresentation, interference w/ 1A, injunctions against crimes/prosecutions, civil rights)
K defenses (mistake, misrep, SoF, Parol Evidence, Fraud in the inducement,

oral land sale,
"If one has rendered 1. valuable part performance 2. in reliance on the K, this will take case OUTSIDE SoFrauds and Sp Perf will be granted.

Valuable part perf = any 2/3
1. payment in whole/part
2. possession
3. Valuable improvements
-Valuable svs (caretaker for life is OK oral)



equitable remedy; K is voidable and rescinded.
Seller who is fraudulently induced by buyer into contract may rescind.

Must sue for Recission 1st, & contracts 2nd to try for alternative win, (otherwise waived); Restitution also available
Determine if:
1. GROUNDS for Recission - Defect of Formation:
1. MATERIAL Mutual mistake, or known/should've known unilateral mistake; OR modernly, mistaken party would suffer undue hardship w/o recission
2. Misrep, actual reliance (innocent or fraudulent)
3. coercion
4. undue influence
5. lack of capacity
6. failure of consideration
7. illegality

2. Defenses
Laches, unclean hands (NOT neg)



changes agmt to conform to parties original intent
determine if:
1. Valid K
2. Grounds for reformation
-mutual mistake or KNOWN unilateral mistake,
3. Defenses
-laches, unclean hands, (NOT negligence, Sof, Parol Ev)


Doctrine of Tracing

CTs and Eq liens -
P can follow property to whatever form it takes, as long as the trust res can be identified. When funds have been COMMINGLED with other funds, victim may obtain equitable lien/constructive trust ONLY to extent of lowest intermediate balance.

-cannot get trust on remaining assets if money used to pay off debts, bc your money didn't pay for those assets title...


replenishment theory

can only obtain C Trust/Eq Lien against amount intended to be substituted as restitution for Claim;



one who 1. pays value and 2. takes title w/o notice of wrongdoing


equitable conversion

buyer is regarded as beneficial Equitable owner of prop from moment contracts are executed. cut off once title actually transferred to BFP


unclean hands

equitable defense bars SPerf when P is guilty of misconduct in the same transaction as to which she is suing the D