Remedies

Question 1

Remedies Essay Approach

Answer 1

1. Determine the cause of action in Q (K, Torts)
2. Discuss legal/money damages + Limits
3. Discuss equitable damages + Defenses
4. Discuss restitution remedies + Defenses

Question 2

Contract Cause of Action

Answer 2

TIP: Usually breach or anticipatory breach

1. Sale of Land
2. Personal Property
3. Employment/Service Ks

Question 3

Torts Causes of Action

Answer 3

1. Trespass to Land
2. Trespass to Chattel/Conversion
3. Misappropriation of Funds (Embezzlement)
4. Int. Torts + Negligence
5. Financial Harm/Fraud/Misrepresentation

Question 4

Money/Legal Damages

Answer 4

1. Compensatory Damages - Torts v. K
2. Expectation Damages
3. Consequential Damages
4. Incidental Damages
5. Nominal Damages
6. Reliance Damages
7. Punitive
8. Restitution
9. Liquidated Damages

Question 5

Compensatory Damages (Torts)

Answer 5

RULE: Compensate a plaintiff for injury or harm

• Pain & Suffering, Lost Wages, Medical Expenses

Question 6

Compensatory Damages (K)

Answer 6

RULE: Include expectation, consequential, and incidental damages

• Must be mitigated by P.

ED + CD + ID - Fail to Mitigate - Costs Avoided

Question 7

Expectation Damages

Answer 7

RULE: K Remedy. Puts the injured party in the same position they would be in had K performed

UCC: measure goods by a difference of K price and fair market value

Damages must be foreseeable and reasonably certain. Duty to mitigate!

Question 8

Consequential Damages

Answer 8

RULE: K + Tort Remedy. Other damages besides ED, like loss of profit. Unique to the P.

REQ:
1. Foreseeable: natural/probable causes of tort/breach or contemplated by parties @ K form
2. Causation
3. Certainty: Determine amount with reasonable certainty

NOT RELIANCE! Cannot be speculative!

Question 9

Incidental Damages

Answer 9

RULE: K Remedy. When the non-breaching party tries to remedy the K breach.

Ex: Buying commercially reasonable expenses or find a similar replacement to a service or good.

Question 10

Liquidated Damages

Answer 10

RULE: K Remedy. Damages were agreed upon by the parties during K formation.

• Enforceable if reasonable at the time of K & had to determine damages.
• If seen more as a penalty, unenforceable.

Question 11

Reliance Damages

Answer 11

RULE: Damages where party reasonably reliable upon the promise of another that they’d perform.

• Must choose Reliance/Restitute OR ED

ONLY up to the K price!!

Question 12

Restitution Damages

Answer 12

RULE: K + Tort Remedy. Measured by benefit conferred ante (D) based on unjust enrichment

K: Way to recover if breach, or Quasi-K

1. Reasonable Value of P’s Services
2. Cost P increased
3. Increase in D’s wealth
4. Fixed K price

NO Rest AND ED

Question 13

Punitive Damages

Answer 13

RULE: Tort, rarely K Remedy. Punish D who engaged with serious misconduct with malice.

Constitutional Limits: Cannot impose “grossly excessive” punishment. No more than 9:1 ratio.

Question 14

Nominal Damages

Answer 14

RULE: K + Torts Remedy: When P meets all elements of cause of action, but harm is slight/trivial.

• Awarded small money or maybe litigation costs.

Not for negligence/fraud; need actual damages!

Question 15

Limits on Monetary Damages

Answer 15

1. Causation, Actual + Proximate
2. Reasonable Certainty
3. Duty to Mitigate
4. Reduction to Benefits

Question 16

Monetary Limits: Causation + Certainty

Answer 16

Actual: T + K. D was “but for” cause
Proximate: T: D liable for harms reasonably foreseeable
Certainty: Damages must be reasonably certain.

Question 17

Reduction for Benefit

Answer 17

RULE: P’s recovery limited if benefited from D’s breach. Not reduced from benefits from collected sources.

• If the breach saved P money, subtract it from P’s damages.

Question 18

Duty to Mitigate

Answer 18

RULE: Torts + K Remedy: P must make a reasonable effort to mitigate damages.

Tort: Seek medical attention
K for Goods: “Cover” by seeking replacements
K for Employment: Seek comparable and reasonable alternative employment.

Question 19

Equitable Remedies

Answer 19

1. Injunctive Relief
   - TRO, Preliminary Inj., Permanent Inj.
2. Specific Performance
3. K Defenses
4. Equitable Defenses
   - Unclean Hands, Laches
5. Recession
6. Reformation

Question 20

Temporary Restraining Order

Answer 20

RULE: Tort + K Remedy. Form of prejudgement injunctive relief. Short period of time D does not need notice.

• 14 to 15 days max (Fed v. CA)
• Maintain status quo until preliminary injunction.
• Show elements of prelim; don’t consider P’s defenses.

Question 21

Preliminary Injunctions

Answer 21

VALERIE COULDN’T READ HANDWRITING

Preliminary: Before trial and until final judgment. D needs notice _ appointment to be heard.

1. P shows reprehensible harm (money unacceptable)
2. P shows hardship

Question 22

Permanent Injunction

Answer 22

Permanent: After P wins cases, used to prevent further violation/restore P’s rights.

1. P suffers reprehensible harm
2. Hardship significantly greater than D + Third Parties

Question 23

Specific Performance

Answer 23

VALERIE UNABLE TO READ ALL!

RULE: K Remedy. The breeching party required to perform

REQ:
1. Valid K
2. Clear/Definite Terms
3. Mutuality of Performance
-
- P shows satisfaction: ready, willing, able
4. Money Damages Inadequate
5. Feasible Enforcement
6. Not Unfair
- P isn’t un
- D mis
- No unreasonable hardship
7. No Defense

Question 24

Contract Defenses

Answer 24

1. Defense to Enforce/Formation
2. Fail to comply with SCF
3. Fraud/Misrepresentation on P
4. Unilateral mistake P knows/should have known

Question 25

Rescission

Answer 25

RULE: K Remedy. Avoidance/unmaking of K. REQ: 1. Fraud/misrepresentation, mutual mistake, unilateral mistake. 2. P returns any benefit conferred. - Followed by: 1. Restitution 2. Replevin 3. Construction of Trust/Equitable Lein

Question 26

Reformation

Answer 26

RULE: Judicial rewriting of K or other deed to reflect parities true intent Mutual Mistake: Both mistaken Unilateral Mistake: One mistake, should have know to contribute, nothing to correct mistake.

Question 27

Equitable Defenses

Answer 27

VALERIE UNABLE TO READ ALL Unclean Hands: P engaged in unethical, metered, and immoral acts. Laches: P waited an unreasonable time to seek SP, delay prejudice D. For SP, consult trust, equitable lien Torts + K!

Question 28

Restitution Forms of Relief

Answer 28

1. Money Damages 2. Constructive Trust 3. Equitable Lien 4. Purchase Money Resulting Trust 5. Equitable Defenses 6. Replevin 7. Ejectment

Question 29

Restitution Money Damages

Answer 29

RULE: Benefit D incurred. If money, give money back. If goods/services, give goods/services. Mental State: 1. Conscious Wrongdoer/Acts Knowing Risk: P gets all the gains. 2. Innocent/Negligent D: Just direct benefit.

Question 30

Constructive Trust

Answer 30

RULE: Judicially imposed a duty to convey property to P, else D would be unjustifiably enriched. REQ: 1. D holds title. 2. Retention would unjustly enrich 3. Money remedy inadequate Tracing! Trace property from current form. Full Satisfaction: Can get increase; stuck with decrease.

Question 31

Equitable Lien

Answer 31

RULE: Forced sale of D's property, and P receives money from the sale. - Reqs the same as constructive trust. - Cannot reverse the increase in value. - If it decreases, D is still on hold.

Question 32

Purchase Money Resulting Trust

Answer 32

RULE: D purchases title when P supplied funds/consideration to buy RP - Trust formed, making D hold RP for P. - P entitled to consideration

Question 33

Replevin

Answer 33

RULE: When D takes P's property, P may D to return. May also recover loss of use from property! Tort: Recover many from conversion or fraud. K: Obtain goals P legally entitled too

Question 34

Ejectment

Answer 34

RULE: Regain possession of land. Sheriff helps take possession and returns. REQ: 1. P shows title to land 2. P has right o immediate possession