Remedies Flashcards
(25 cards)
Legal Remedies (Tort) – Compensatory
Casual Foreplay Certainly Unavoidable
Causation Foreseeability Certainty, Unavoidable (Mitigation)
Specific Performance
Volunteers Prepare Infants For Expected Delivery
Valid contract Performed or prepared to do so Inadequate legal remedies (unable to secure substitute goods) Feasibility of enforcement Defenses (hardship, etc.)
(Sale of land to BFP cuts off specific performance
TRO/Preliminary Injunction
Indiana Basketball Premier League Success
Irreparable injury
Balance of hardships (unless willful)
Public interest favors granting
Likelihood of success on the merits
Maintain status quo until regular hearing can be held
May be granted without notice if strong showing as to why
Permanent Injunction
Indiana Pacers Follow Easy Basketball Drills
Inadequate legal remedy (e.g. continuing wrong) Protectable property right Feasibility of Enforcement Balance of hardships Defenses
Defenses (Equitable Remedies)
ULUrU Has Every Feature Coveted
Unclean Hands Laches Undue Hardship/Unfairness Equitable estoppel Free speech Crime (except if public nuisance)
Constructive Trust
Downright Terrible Web User Interface
D has title to property
Through Wrongdoing of D
retention = Unjust enrichment
Inadequate legal remedy (insolvency sufficient)
No deficiency judgment allowed after imposition of constructive trust
Cut off by transfer to BFP
Equitable lien on lowest intermediate balance unless show D expressly intended the subsequent addition as restitution of P’s funds
Grounds for Rescission/Reformation
Mistake (Mutual or Unilateral)
Misrepresentation (Innocent/Fraudulent).
Sue for rescission before asserting damages. Claim for damages affirms K.
Undue Hardship
Inadequacy of Consideration, Marked Inequality Between Parties, and Unfair Advantage Exercised by the Plaintiff
Defenses to K Formation
Statues of Monkeys are Illegal In Uganda For Days
Statute of Frauds Mistake/Ambiguity Illegality Incapacity Unconscionability Fraud (misrepresentation), Duress
Discharge of Duty (K)
Indian Frogs Make Mutual Records of New Art
Impossibility, Impracticability Frustration of Purpose Modification Mutual rescission Novation Accord & satisfaction
Contract Remedies
Clearance Creedwater Revival Rates Robust Songs
Compensatory Damages Consequential Damages Restitution Rescission or Reformation Specific Performance
Mutual mistake
Mistake concerns basic assumption on which contract was made (essential element – parties, subject matter, consideration, offer and acceptance)
Mistake has material effect
party seeking avoidance did not assume risk
Unilateral mistake: mistake had material effect and mistaken party did not bear risk. Nonmistaken party did not know or have reason to know of mistake. Usually only computational errors.
Parol Evidence Rule (admissions)
Evidence concerning validity (formation defects, conditions precedent) (not performance)
Evidence used to interpret ambiguities
Evidence showing true consideration paid
Evidence in action for reformation
Anticipatory Repudiation
1) Executory bilateral contract (actions remain undone on both sides)
2) Unequivocal statement of nonperformance
3) Nonrepudiating party may:
a) sue immediately
b) suspend performance and sue when performance due
c) Treat repudiation as rescission
d) Urge performance
Contract (Offer)
Intent to make offer
Certain and definite terms
Communicated to offeree
Material Breach
Not received substantial benefit of bargain.
May sue immediately
Land Sale K
Description of Land, Parties, and Price
K for services: nature of services and duration (no extrinsic evidence)
Estoppel (K)
D’s conduct or promise foreseeably induces P to change position in reliance on oral agreement, may remove K from SoF
Impossibility/Impracticability
Frustration of Purpose
Impossible (impossible for any one to perform)
1) Nonoccurence of event was basic assumption of parties
2) Neither party expressly assumed risk
3) contractual duties may be discharged if performance becomes impossible or impracticable
Impracticability – party has encountered extreme and unreasonable difficulty and/or expense and nonoccurrence of condition was basic assumption of the parties. Mere increase in costs usually insufficient.
FOP: 1) purpose of K becomes valueless due to supervening event not the fault of party seeking discharge. 2) Must not have reasonably foreseen the supervening event.
Replevin
Goods identified (specifically) in contract After reasonable effort unable to secure adequate substitute or such effort would be unavailing
or If partial payment or purchased for personal, family, or household purposes
Not a remedy when no guarantee sheriff can recover
Available at commencement of action and before trial if a pre-seizure judicial hearing is held
Material vs. Minor Breach
Look at breach of particular provision but also totality of deviations
Extent to which nonbreaching party will receive benefit he expected
Extent to which nonbreaching party can be compensated in damages
Hardship to breaching party if K is terminated
Extent to which negligent or willful
Extent to which breaching party has performed and likelihood of full performance
Encroachment
1) Legal remedy inadequate (land unique). Consider ejectment
2) Balance of hardships
3) Continuing trespass - damages = rental value of occupied land
Permanent trespass – damages are market value of land occupied by structure
Conversion
1) act by D that interferes with P’s right of possession in chattel
2) serious enough to warrant paying full value
3) intent to perform the act bringing about the interference
4) causation
FMV at time of conversion
Trespass to land: reasonable value of use of land
BFP can be liable for conversion if obtains from thief (no title to give)
Equitable lien
DTUI
Downtown Taxis Under Influence
D misappropriated P’s property
P’s property can be Traced to property held by D
Retention = unjust enrichment
Legal remedy is inadequate
Appropriate where value decrease. Priority over unsecured creditors
Cut off by transfer to BFP
