Remedies

Question 1

Tort Remedies - Legal Remedies

Answer 1

Compensatory (give larger vs restitutionary), Punitive, Nominal

Question 2

Compensatory Damages

Answer 2

injury to Π: What Π would be entitled to had the injury not occurred.
Requires CFCU California Fresno California U
1. Causation: actual causation (“but for” test)

2. Foreseeability: proximate causation (injury was foreseeable at time of tortuous act)
3. Certainty: damages cannot be too speculative
   a. For future damages, show they are more likely than not
   b. Historical record helps (e.g., in business for 3 years vs. 3 days)
   c. If general (non-economic) damages pleaded, certainty element is inapplicable
   i. Compensate for foreseeable loss. Jury may award any amount
   d. Voluntary waste = diminution in value of the property or the cost of repairs
   e. Permissive waste = cost of repairs
4. Unavoidability: Π must have taken reasonable steps to mitigate damages

Question 3

Punitive

Answer 3

Awarded to punish  for willful or wanton misconduct (intentional torts) or reckless misconduct

Question 4

Nominal

Answer 4

Awarded when Π is slightly or not injured. Establish or vindicate Π’s rights

Question 5

Restitutionary Remedies

Answer 5

(prevent unjust enrichment retained by Δ) – give larger of compensatory/ Restitutionary

i. Not available against bona fide purchasers (paid full value + no notice of wrongdoing)
ii. Restitutionary damages = value of benefit to Δ that Δ did not pay for = amount required to prevent unjust enrichment (UE)

Question 6

Legal Restitutionary Remedies

Answer 6

Replevin OR Ejectment: Recover possession of personal OR real property wrongfully withheld
1. Couple with compensatory or restitutionary damages for Π’s lost use or benefit to Δ
2. Replevin: Π can recover personal chattel before trial by posting a bond (Δ can redeliver bond)
3. Ejectment: Can eject adverse possessor or holdover tenant from land

Question 7

Equitable Restitutionary Remedies

Answer 7

Imposed on improperly acquired property  has title to
1. Use when: Inadequate legal remedy (insolvent Δ, unique property)
a. If value of property goes up, recommend CT; if value goes down, recommend EL
2. Tracing allowed: Π can follow the property to whatever form it takes
a. Where funds comingled, can get CT/EL to extent of lowest intermediate balance

Constructive Trusts vs Equitable Lien

Question 8

Constructive Trust

Answer 8

Better if property has gained value
Get title back. Δ serves as trustee, returns property to Π
a. May impose CT on bank account if insolvent

Question 9

Equitable Lien

Answer 9

Better if property has lost value
Get security interest. Property subject to court-ordered sale, $ goes to Π
a. Regardless of whether misappropriated funds were used to acquire different property
b. If proceeds < FMV of property @ time taken, can seek deficiency judgment v. Δ

Question 10

Tort Equitable Remedies (Injunctive Relief)

Answer 10

Δ is ordered to do or refrain from doing something

Question 11

Temporary Restraining Order

Answer 11

I Be Pulling Ladies
may be issued pending temporary injunction hearing. Requires IBPL:
1. Irreparable injury: Π will incur irreparable injury while waiting for temporary injunction (tighter timeframe for TRO vs. temporary injunction—is there immediate, irreparable harm?)
a. Balancing of interests favors Π: Π’s irreparable injury vs. Δ’s hardship
b. Public interest favors granting
2. Likelihood of success on the merits: Probability > 50% Π will prevail
3. Can be ex parte, i.e., issued by a judge before a hearing
4. Duration: Usually 10 days. 14 days in federal courts

Question 12

Temporary Injunction

Answer 12

may be issued pending trial on the merits maintain status quo. Same IBPL as above
1. Duration: Until completion of judicial proceeding (conclusion of full trial)

Question 13

Permanent Injunction

Answer 13

(PI) may be sought after a trial on the merits IPFBD; Ich Prost Fun Beer Drinking
1. Inadequate legal remedy: Factors: $ damages inadequate or too speculative, injury irreparable (insolvent Δ, land interest, unique property), unable to recover or act (replevin or ejectment ineffective), continuous wrongful behavior by Δ or multiple ongoing suits needed to recover dmgs

2. Protectable property right: Modernly, any protectable interest (including intangible)
3. Feasibility of enforcement: Decree may be mandatory/affirmative (“Δ must do X”) or negative (“Δ cannot do X”). PI is disfavored if difficult for court to supervise or ensure compliance:
   a. Involves great taste, skill, judgment, or requires a series of acts
   b. Requires out-of-state acts by nonresident Δ (harder to monitor if no personal jurisdiction)
4. Balancing of hardships: PI disfavored if disparity where benefit to Π < hardship to Δ (or public)
   a. No balancing if Δ’s conduct was willful
5. Defenses (for all equitable remedies)? unclean hands related to present case and Δ, laches (unreasonable delay before statute of limitations (SOL) that results in prejudice to Δ), undue hardship, equitable estoppel, free speech (v. defamation, privacy, 1st Amendment case), injunction sought against Δ’s crime (EXCEPT if crime is also public nuisance)
6. Duration: As long as necessary
   iv. Who is bound? Δ, employees or agents acting w/ notice, others acting in concert on notice

Question 14

Contract Legal Remedies (types of compensatory damages)

Answer 14

i. Expectation/Actual: causation, foreseeability, certainty, unavoidability (duty to mitigate) (see above)
1. If UCC, damages = K price – cover/resale price

ii. Reliance: Expenditures made in reliance of K (especially if expectation damages are speculative)

iii. Consequential: Damages a reas. person would have foreseen from a breach of K (e.g., lost profits)

iv. Incidental: Costs incurred reas. incidental to a breach (e.g., inspection, appraisal, storage, shipping)

v. Liquidated: Valid liquidated damages (LD) clause if damages are difficult to ascertain at formation + LD clause is a reasonable forecast of damages
1. If valid, only LD amount available. If invalid, only actual damages available. If LD clause allows actual or liquidated damages, invalid → Π gets actual damages

vi. Nominal: Allowed but not favored (can seek more damages in K case) Punitive: Not available in K actions

Question 15

Contract Restitutionary Remedies

Answer 15

(where unjust enrichment retained by Δ, fraud, K fails after partial/complete performance)
i. Restitutionary damages = value of benefit rendered, even if Δ never uses it or even if value > K price

ii. Choices for land-sale K (LSK) if property is unique or Δ is insolvent:
1. Pick appropriately based on facts: ejectment, constructive trust, equitable lien (see § I-b)

iii. UCC: Buyer right of replevin for goods ID’d in K if after reas. effort, unable to effect cover (insufficient $)

iv. Quasi-K: Court may create a quasi-K where there is UE but no enforceable K, such as emergency services, or where there is a mistake, fraud, or misrepresentation. It seeks to have Δ repay value rendered by Π

Question 16

Contract Equitable Remedies

Answer 16

Available for: LSK equitable conversion (buyer has equitable title), unique goods, capable of immediate performance (requirements/output K)

Specific performance, rescission, reformation

Question 17

Specific Performance

Answer 17

Requires Δ to perform under K when VCIFD… Victory Comes In Four Days
1. Valid K: Π must show terms are more definite and certain than for a $ damages case

2. Conditions for performance met: Π has performed, is ready & able to perform, or excused from performance
   a. Abatement (if deficient quantity or performance by Π): If SP should be granted with defect, court will lower the purchase price to take the defect into account
   i. Π as seller (“I want to sell anyway”): Can enforce K if minor defect. Cannot enforce K if material defect, unless he can cure before or at closing
   ii. Π as buyer (“I want to buy anyway”): Can enforce K even if material defect, unless very material
   b. Forfeiture is disfavored (e.g., buyer makes late payment with time-of-essence clause in LSK, sues for specific performance). “Equity abhors forfeitures”
   i. Court look to factors to avoid harsh results of forfeiture (“don’t BLoW iT”)
3. Buyer (Π) will suffer undue hardship
4. Loss to seller (Δ) is small
5. Waiver (seller has accepted late payments in past)
6. Tardiness is de minimis (reasonable)
   ii. SP usually awarded. Courts would give Π restitutionary relief if SP not granted
7. Inadequate legal remedies: $ damages low or speculative; unique item, land interest, insolvent Δ; ongoing suits. All land is unique item (even its purchase price—both buyer and seller can get SP)
   a. LD clause does not make $ damages adequate, so SP is still available to the parties
   i. BUT if LD clause provides that it is the only remedy, get LD damages (no SP)
8. Feasibility of enforcement: Becomes an issue with affirmative mandates, personal services, land sale where a party or land is out of state (jx), or construction. SP is likely not available for these K
9. Defenses? unclean hands related to present case and Δ, laches (unreasonable delay before SOL that results in prejudice to Δ), undue hardship
   a. Contractual defenses? unconscionability, mistake, misrepresentation, undue influence, impossibility, SOF (watch for part performance to take case out of SOF and allow SP)

Question 18

Rescission

Answer 18

restores parties to a point before formation by voiding the K (GD)
1. Grounds for rescission (no mutual assent): Mistake, misrepresentation (fraud), undue influence, lack of capacity, failure of consideration, illegality
a. Π entitled to rescission already performed can get restitutionary relief
2. Defenses? Laches (unreasonable, prejudicial delay before SOL), unclean hands
a. NOT a defense (will not prevent rescission): Π’s negligence

Question 19

Reformation

Answer 19

modifies a written K so as to conform with parties’ original understanding (VGD)
1. Valid K
2. Grounds for reformation: Mutual mistake (both pts believed writing conformed), unilateral mistake (one pt knows that writing does not conform), misrepresentation
3. Defenses? Laches (unreasonable, prejudicial delay before SOL), sale of subject matter to BFP
a. NOT a defense (will not prevent reformation): Π’s negligence, SOF, PER