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Bar Prep > Remedies > Flashcards

Remedies Flashcards

1
Q

Spotting a Remedies Question

A

The “call-of-the-question” line will do one of three things:
a. Use the word “remedies,”
b. Use the word “relief,” or
c. State a specific remedy, like specific performance or an injunction.

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2
Q

Three Step Approach

A

Determine area of law involved
—Usually torts, contracts, or both
—What type of tort or contract?
Make sure P will win
—P won’t get remedy unless P wins
Determine remedies

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3
Q

Order of Discussing Remedies

A

Legal remedies
Restitutionary remedies
Equitable remedies

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4
Q

Tort Remedies: Three Basic Fact Patterns

A

Only compensatory damages are available.
Only restitutionary damages available
Both available

Can’t Do Both
Analyze both and pick which is higher

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5
Q

Tort Legal Remedies: Types of money damages

A

Compensatory
Nominal
Punitive

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6
Q

Tort Compensatory Damages

A

Puts injured party in position they would have been in but for the tort.

Four requirements:
Actual causation
Foreseeable (Proximate Causation)
Certainty
—-Past losses require more certainty
—-Historical records help
—-Future damages must be more likely than not (all or nothing rule)
Unavoidability (mitigation)

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7
Q

Personal Injury Torts: The Certainty Rules: Economic Losses (Special Damages)

A

Basic certainty rules apply here, meaning the damages calculation must be made with sufficient certainty.

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8
Q

Personal Injury Torts: The Certainty Rules: Non-economic Losses (General Damages)

A

Basic certainty rules do not apply here. The jury may award any amount it wishes within the judge’s instructions.

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9
Q

Form of Judgment Payment

A

The award must be a single lump sum payment.
Installment payments are not allowed.

Two Calculation Items
The award must be discounted to present value.
Inflation is not taken into account under the traditional rule.

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10
Q

Form of Judgment Payment Sentence

A

“The judgment was be a single lump sum payment discounted to present value without taking inflation into account except under the more modern rule.”

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11
Q

Tort Nominal Damages

A

No injury, but vindicates P’s rights

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12
Q

Torts Punitive Damages

A

To punish D

Three requirements:
1. Cannot stand alone, must attach to another type of damages
2. Willful, wanton, or malicious conduct is required by D
3. Awarded proportionate to actual damages
—-Ratio should be no more than 10 to 1.

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13
Q

Restitutionary Remedies Purpose

A

Because D should not be unjustly enriched

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14
Q

Restitutionary Damages

A

Based on amount of benefit to D

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15
Q

Replevin

A

P recovers possession of personal property
Two part test:
P has right to possess
There was a wrongful withholding

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16
Q

Replevin: Timing and Bonds

A

P can recover chattel before trial
P must first post bond
Money to compensate D if P was wrong

D can defeat immediate recovery by posting a redelivery bond.
D can keep chattel until trial
Sheriff repossesses, no self help

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17
Q

Ejectment

A

P recovers possession of real property

Two part test:
P has right to possess
There was a wrongful withholding

Available only against D who has possession of property
Sheriff does ejectment

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18
Q

Equitable Restitutionary Remedies

A

Tip: If D has title, think constructive trust or equitable lien

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19
Q

Constructive Trust

A

D serves as trustee and must return to P

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20
Q

Equitable Lien

A

Immediate sale with proceeds to P
Then can use deficiency judgment against D if less than value

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21
Q

Rules for Constructive Trusts and Equitable Liens

A
  1. Must show inadequate legal remedy alternatives
    —-D insolvent
    —-Unique property
  2. Tracing allowed
    —Ie, recover money from sold property
  3. BFPs prevail over P
  4. P prevails over unsecured creditors
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22
Q

Which to Use: Constructive Trusts and Equitable Liens

A

Property value goes up → Constructive Trust
Property value goes down → Equitable Lien

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23
Q

Injunctive Relief

A

D must do or refrain from action

Tip: Determine preliminary/temporary injunction or permanent
Permanent happens after trial, preliminary issued pending trial
Permanent is most common

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24
Q

Preliminary Injunction

A

Two part test:
Irreparable injury
—-Timeframe context, needs relief now
Balancing of hardships
—-P’s likelihood of success

Bond requirements–reimburse D if wrong
Notice to D

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25
Q

Temporary Restraining Order

A

Like a preliminary injunction but even faster
Issued pending a hearing for a preliminary injunction

Two part test:
Irreparable injury
—-Timeframe context, needs relief immediately
Balancing of hardships
P’s likelihood of success
—-Much higher burden

Bond requirements–reimburse D if wrong

Must make a good faith effort to give D notice but don’t have to

TROs limited to 10 days in state and 14 in federal

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26
Q

Permanent Injunctive Relief Test

A
  1. Must be inadequate legal remedy alternatives
  2. Feasibility of enforcement
  3. Balance of hardships
  4. Defenses
27
Q

Permanent Injunctive Relief Test: Why Money Damages Could Be Inadequate

A

Why Money Damages Could Be Inadequate:
Too speculative
Insolvency
Irreparable injury (true irreparable injury)
Multiple actions (been prior history of litigation between parties)

28
Q

Permanent Injunctive Relief Test: Feasibility of enforcement

A

Negative Injunction: D must stop doing something

Mandatory Injunction: D must do something
—-Enforcement problems here a lot

Ie, great taste, skill, or judgment will deny the injunction as its too subjective
Court has no power over D (ie they live out of state)

29
Q

Permanent Injunctive Relief Test: Balance of hardships 4 rules

A

Four rules:

  1. Must be gross disparity between D’s detriment and P’s benefit
  2. No balancing of hardships if D’s conduct was willful
  3. Ordinary negligence, consider awarding P money damages even if denying injunction
  4. Hardship to the public
30
Q

Permanent Injunctive Relief Test: Defenses

A

Unclean hands
Laches
Impossibility
Free Speech

31
Q

Permanent Injunctive Relief Test: Defenses: Unclean hands

A

Must be related to the lawsuit

32
Q

Permanent Injunctive Relief Test: Defenses: Laches

A

Running of a period of time defense, concerned with the effect of the passage of time
How prejudicial is the passage of time to D

Clock starts to run when P learns of the injury

Delay cuts off right to relief when both:
Unreasonable and
Prejudicial to the D

33
Q

Permanent Injunctive Relief Test: Defenses: Free Speech

A

Big for defamation
Usually deny based on free speech

34
Q

Miscellaneous: Crimes

A

Equity will not enjoin a crime

35
Q

Who Bound by Injunction?

A

Parties

Employees/agents with notice

Others acting in concert with notice

36
Q

Erroneous Injunction

A

Party has to obey regardless
Go to court and get it modified or resolved

37
Q

Contempt

A

Issued for disobeying court order

Two types:
Civil Contempt
Tool to coerce parties to comply with injunction
Fine or imprisonment

Criminal Contempt
Punishment for failing to comply with injunction

Exam Tip:
Injunctive relief is almost always coupled with damages

38
Q

Tort Analysis Walkthrough

A

Has P been injured?
Compensatory damages

Has D benefited?
Restitution → unjust enrichment

Does P want property back?
Replevin
Ejectment

Is P still being harmed?
Injunction
IFBD

39
Q

Contract Remedies Available

A

Legal Remedies:
Compensatory damages
Restitutionary remedies

Equitable Remedies:
Specific performance
Rescission
Reformation

40
Q

Contract Compensatory Damages Elements

A

Elements:
Causation
Foreseeability at K formation
Certainty
Mitigation

41
Q

Direct damages

A

are those that flow directly from the harm.

Calculation:
Substitute contract - original contract

42
Q

Consequential damages

A

are available for related damage that was foreseeable at the time of contract formation

Foreseeable at contract formation
Indirect consequences of breach

Calculation:
Lost profits
Only if communicated the special circumstances for performance so they’re foreseeable

43
Q

Nominal Damages

A

Allowed but rare

44
Q

Contract Punitive Damages

A

Not allowed
But if willful, could be fraud

45
Q

Liquidated Damages

A

Two part test for validity:
Damages are difficult to ascertain at time of K formation
Liquidated damages amount was a reasonable forecast of damages

Too high? It’s a penalty and invalid.

If valid, then only these damages are available. If invalid, still could get actual damages.

Clause that says one could get actual or liquidated: invalid clause

46
Q

Contract Restitutionary Remedies

A

Prevent unjust enrichment
Usually seen after part performance of K
Restitutionary remedies apply if contract is:
–Unenforceable
–Breached

47
Q

Contract Restitutionary Remedies: K Unenforceable Remedies

A

Value of the benefit can be recovered
Value of full services recovered, not K specific
P can get property back if unique or D insolvent

48
Q

Contract Restitutionary Remedies: K Breached Remedies: P is Non-Breaching Party

A

Value of the benefit can be recovered
Value of full services recovered, not K specific
P can get property back if unique or D insolvent

49
Q

Contract Restitutionary Remedies: K Breached Remedies: P is Breaching Party

A

Traditional view = no recovery

Modern view = recovery allowed
Cannot be greater than contract amount
Liable for damages suffered by D as a result of the breach

50
Q

Specific Performance

A

Requires D to perform the K

Five part checklist:
1. K must be valid, certain, and definite
2. Conditions of P are fulfilled
3. Inadequate legal remedy
4. Feasibility of enforcement
5. Defenses

51
Q

Specific Performance: K must be valid, certain, and definite

A

More certain than for money damages

52
Q

Specific Performance: Conditions of P are fulfilled

A

Seller can only enforce if their defect is minor and D got most benefits
Buyer can enforce even if major defect, unless very major = missing half or more of promised consideration

Court will lower purchase price
Abatement: Reduction of price because of defect

Time is of the essence also implicated
Look for forfeiture clause if time not met
When in doubt, follow the maxim: equity abhors forfeitures
If only minor deviation, likely will award specific performance

53
Q

Specific Performance: Inadequate legal remedy

A

Speculative, insolvency, multiple suits, etc.

Unique property
All land is unique

Personal property is usually not unique
Exception if:
Rare or one of a kind
Of personal significance or
Unique due to special circumstances

Liquidated damages clause
Does not make money damages adequate, except if clause provides liquidated damages are only remedy

54
Q

Specific Performance: Feasibility of enforcement

A

Personal service contracts not specifically available

55
Q

Specific Performance: Defenses

A

Unconscionability
—-Tested at time of formation
Mistake
Misrepresentation
If one has rendered valuable part performance in reliance on the contract, the statute of frauds no longer applies and specific performance will be granted
—-Valuable services

56
Q

Rescission

A

Voids the contract

Grounds for rescission:
Mistake
Misrepresentation
Coercion
Undue Influence
Lack of capacity
Failure of consideration
Illegality

57
Q

Rescission: Mistake

A

Mutual Mistake
Mutual mistake of material fact, rescission granted
Mutual mistake of collateral fact, rescission denied

Unilateral Mistake
Rescission denied
Unless:
Non-mistaken party knows of the mistake

58
Q

Rescission: Misrepresentation

A

Rescission granted

59
Q

Rescission: Defenses

A

Unclean hands
Laches
Negligence will not defeat rescission

60
Q

Rescission: P sues for damages first

A

If P sues for damages first, then rescission is not allowed
If P sues for rescission first, then damages are allowed

61
Q

Rescission: Availability of restitution

A

If a plaintiff who is entitled to rescission has previously rendered performance on the contract (for example, performance of services, advance on purchase price), they can get compensated for it or get the property back via restitution.

62
Q

Reformation

A

Changes the contract to the party’s original understanding

3 Steps:
Meeting of the minds (valid contract)
Grounds for reformation
—Mutual mistake
—Unilateral mistake if other party actually knew of mistake
Defenses
—Unclean hands
—Laches
—Negligence, SOF, parol evidence rule are NOT defenses

63
Q

Contract Remedies Roadmap

A

P injured?
Compensatory damages

D benefited?
Restitutionary remedies

P want property return?
Need unique property or insolvent D

P want contract performed?
Specific performance

P want contract destroyed?
Rescission

P wants contract rewritten?
Reformation

Bar Prep (18 decks)

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