Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

Things to remember for the Bar > Remedies > Flashcards

Remedies Flashcards

(79 cards)

Start Studying
1
Q

TRO

A

an injunction for a short period of time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Under Federal rules, TRO expires

A

on the date set by the court, not to exceed 14 days after the entry of the order unless the court, extends for good cause or the adverse party consents.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Under CA rule a TRO issued without notice of the defendant generally cannot exceed

A

15 days.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

A TRO may be obtained ex parte, which means no notice is afforded to the defendant. The primary purpose of a TRO is to

A

preserve the status quo until a preliminrary injunction can be held.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Can a TRO be appealed

When will a TRO be denied

A

No, but it is not effective until the D recieves notice of it

It is is uneforcebale

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

TRO Elements (Irish Lads Inhale Beer in Dublin)

A

Irreparable harm
Likelihood of sucess on the merits
Inadequate legal remedies
Balancing of hardships goes towards P
Defenses - None

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Pre lim Injunction

A

an injunction issued before or during a trial that generally is effective until there is a final judgment by the court. Unlike a TRO, a preliminary injunction cannot be issued with the defendant give notice of the hearing an a opportunity to be heard. Plaintiff must show the same elements that are required for a TRO.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Speific preformance

A

contractual remedy by which a party to a contract is compellted by court order to render the promised performance or subisute. Generally it is not available unless there is a breach of contract.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

For the court to grant a plaintiffs request for speific preformance (chocolate cheesecake is my favorite desert)

A

Valid contract
contract conditions are certain/clear
inadequate legal remedies
mutuality of performance
feasibility of enforcement
no defenses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Recession (equitable remedy) is the avoidance or unamking of a contract. P must show

A
  • grounds for recession
  • P sent notice to D as soon as grounds are discovered
    -return any benefits it received under the contract to D
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Recession, which is only available to the wrong party is generally available when one party has a valid defense to the formation of a contract. Those are

A

mistake of fact
misrepresentation
Fraud

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Being that recession is an equitable remedy the court has

A

broad discretion in deciding whether it should be awarded.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What will the court consider in the situtation in whcih they award recession

A

will considered the equities of the situation, taking into account the fairness of recession to both parties.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Because recession is an equitable remedy, it is subject to equitable defenses like

A

acquiescence, esotppel, laches, and unclean hands.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Fraud / Misrepresentation

A

A contract may be invlaid on the basis of fraud where 1) a party made a false statement of past or present fact, 2) the statement was either fraudulent or material to the contract and 2) the other party relied on that statement of fact entering into the contact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Doctrine of Mutual mistake

A

a contract may be invalidated where both parties are mistaken under a material fact that is the basic assumption of the contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Doctrine of unilateral mistake

A

a contract may be invalidated where one party is mistaken about a material fact underlying the contract, and the other party knows or has reason to know about the mistake.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Laches

A

This defense applies where a claimant unreasonably delays in bringing the suit and where the suit prejudices the plaintiff.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Acquiescence

A

serves as a defense where the plaintiff has previously acquieseced to similar conduct on the part of the defendant for which the plaintiff is now seeking relief.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Unclean hands - equitable defense

A

P himself engaged in unethical or immoral acts relating to the K

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Estoppel

A

where a defendant reasonably, foreseeably, and detrimentally relied on the plaintiffs statement that the plaintiff’s conduct is permissible and where its equitable defense to enforce that promise.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Reformation a court will not invalidate the contract in its entirety but rather

Who is it available to?

Is it always awarded

A

rewrite the contract to confirm it to the parties original intent.

Moreover, like recession, reformation is only available to the wrong party.

Because this is a equitable remedy, the court has broad decision in deviding whether it should be awarded.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Resitutionary remedies are appropriate where the tortfeasor

A

has been unjustly enriched by his activities.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Punitive damages

A

Awarded when the defendant has displayed willful, wanton or malicious tort conduct. Only awarded if actual damages are awarded, there is culpability, and relatively proportionate to the actual damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Nominal damages
awarded when there is a violation of someone’s rights but there are no actual damages or if there is damages, the harm is slight
26
What are the 3 types of compensatory damages?
Expectation, Consequential, incidental
27
what potential issues can limit consequential damages
casuation, foreseeability, certainty or the duty to mitigate applies
28
You must prove Causation for Compensatory damages. Causation exists where
Damages must be caused by the tortious act ie be the actual but for cause
29
Foreseeable
natural and probable consequences of the tort or breach of contract or contemplated by the parties at the time the contract was formed.
30
Certainty
damages must be capable of being calculated with certainty and not overly speculative
31
For compensatory damages, you must prove it was Unavoidable. This means
A plaintiff has a duty to take reasonable steps to mitigate his losses
32
What are the 2 types of compensatory damages you can get in a tort
General damages and special damages
33
General damages are
noneconomic losses directly attributable to the tort that all plaintiffs would have because they flow as a natural result of the tort
34
Special damages
economic losses directly attributable to the tort that some plaintiffs may have and are unqiue to each plaintiff Ex: medical damages, lost wages
35
Measure of compensatory damages in a tort depends usually on
the value of the P's harm
36
FMV of compensatory damages applies in
conversion
37
Comepnstation for loss and use of item at the time of deprivation is what tort damages
Tresspass to chattel
38
Negligence damages
pain and suffering , lost wages
39
Pure economic damages are not acceptance in torts byself unless its
intentional interference with business relations
40
Replevin What can P recover ?
allows recovery before trial of a specific chattel wrongfully taken from the P who has the right to possesion Damages for the loss of use of his property
41
Ejectment
used to recover specific real property from which a P has a right to possession was wrongfully excluded
42
What are the damages calculated for repelvin
time that he was deprived of the chattle
43
What are the damages calculated for ejectment
time he was deprived of the property
44
constructive trust
compels the defendant to convey title to unjust retained speific property to the p and restore property to the P that has been wrongfully acquired by the D
45
What does a constructive trust requires
wrongful act that lead the person to get the property D has legal title to convey
46
what is the cavet to the constructive trust when D has legal title to convey
if he is a theif and he got money you can ask for it back, but property you will not get legal title
47
Arguments for inadequate legal remedy
Money damages too speculative Insolvent D Repelivin is unavailable bc property is sold property is unique
48
A constructive trtust can apply to
speific property acquired by the wrongdoer that is traceable to the wrongful behavior
49
Limitations on constructive trust
P recieves the benefit of any increase in the property Property must be solely traceable to current form (ie if you use money to remodel a house that is not your property, cannot get the house) Lowest intermediate baelnce applies to the comingled funds
50
Investor fiction
presumes a defnant invests his own money first
51
Spender fiction
presumes a d spends his own money first
52
Priority of a plaintiff over a 3rd party with interest
BFP prevails over P P prevails over unsecured creditors
53
Equitable linen
Gives the P a security interest in the property and the property acts as collateral for the money owed to the P. P acts as if he is a creditor
54
unlike a constructive trust with an equitable linen it is acceptable to
trace the plaintiff's property to different piece of property even if the two are comingled and p's property was used to improve another piee of property properly owned by the D
55
Are deficency judgements allowed in a constructive trust
No
56
When is a constructive trust better
when the value of the wrongfully acquired proprty goes up to prevent unjust enrichment
57
when is an equitable linen better
when the value of the wrongfully acquired proeprty does down bc they can get the deficiency judgement for the difference or when the property cannot be traced
58
Permanet injunctions
Court order to preform an act or stop preforming an act after holding a full trial on the merits
59
Elements for ordring a permanet injunction - I pray for big deserts
Inadequate legal remedy Property interest feasiability of enforcement Balencing of hardships Defense - none
60
Feasiability of enforcement for a perm injunction
the injunction must not be too difficult for the court to enforce because it is an affrimative injunction or there is jursidictional issues
61
Which injunctions are easier to enforce and why
negative bc the courts power to order contempt for noncompliance
62
Examples of inadequate legal remedy for perm injunctions
Money damages are too speculative Money damages are inadequate Insolvent D Repelvin or ejectment is unavailable Multiciplity of suits occuring because this is an ongoing issue Propsective tort is expected to occur property is unique
63
Expectation damages Formula
compenstates the value P for the value of the benefit P expected to recieve from the K had the breaching party preformed. the difference amount of price or the amount to be paid for a service or good under the contract and the amount of replacing (the market price) it, plus any incidental damages, plus any foreseeable consequential damages, less any amount saved by the non-breaching party.
64
Potential limitation on contract expectation damages to reduce or eliminate damages
If the damages were not caused by the K breach Unforseeable damages Not certain Failed to mitigate damages Liquidated damages clause C
65
Consequential damages seek to
compenstate for damages that are direct and foreseeable consequences of the contract not being preformed and are found in addition to expectation damages
66
Incidental damages
costs reasonably incured when the other party is trying to remedy the breach
67
Reliance damages
seek to put the P in the same positon he would have been had the contract never been made.
68
when are reliance damages awarded
These are awarded in place of expectation damages when damages when the damages r to difficult to calculate
69
Liquidated damages controls when
Damages are difficult to calculate and bears a reasonable relationship to the anticipated lost and is not a penalty
70
Quasi contract
applies where there is no legally binding conttract but the D has derived a benefit and fairness requires payment to the P.
71
How are damages measured in a quasi contract
value of the benefit unjustly enriched
72
When can a quasi contract arise
no attempt to contract via emergency services unefforceable contract breached contract if P is not the breacher (traditional rule) or modernly with liits
73
what r proper grounds for recession
fraud, material misrep or mutual mistake
74
Mutuality of preformance
both parties to the K must be elligible to have their preformance under the K ordered by the court
75
Typical damages for real property remedy
ejectment injunction
76
With an Encroachments what is the appropriate damages
damages, ejectment or injunction
77
Voluntary waste is a deliberate, destructive act. Remedy for damages is
DMV or cost of repair and/or ununction
78
Permissive waste occurs when the property is poorly maintained and remedy for damages is
cost of repair
79
Amerliorative waste is where the present interest holder makes impermissible improvements to the property that actually enhance the value. Damages are
none because there is no loss in value but an injunction may arise

Things to remember for the Bar (21 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions