Remedies

Question 1

Arten von Torts Remedies

Answer 1

1. Legal Remedies: $ damages
2. Restitutionary damages: prevent unjust enrichment
3. Equitable remedes: injunctive relief

Question 2

Arten von Torts Legal Remedies

Answer 2

a) Compensatory
b) Punitive
c) Nominal

Question 3

Torts Remedies: Prüfung Compensatory Damages

Answer 3

CFCU

1. Causation: actual causation (but for test)
2. Foreseeability: proximate causation (injury was foreseeable at time of tortuous act)
3. Certainty: damages can’t be too speculative
4. Unavoidability: must have taken steps to mitigate damages

Question 4

Certainty Fallgruppen bei damages

Answer 4

a) future damages: show they are more likely than not
b) historical records helps (Bsp. vergangene business records)
c) general (non-economic damages): certainty element inapplicable, instead: compensate for “foreseeable loss”

Question 5

Fallgruppe: tenant verursacht waste

Answer 5

a) permissive waste: tenants fail to make maintenance that is essential for the property
b) voluntary waste: intentional actions to cause damage to the property
c) ameliorative waste: improvements

Question 6

Torts Remedies: Punitive damages

Answer 6

for willful or wanton misconduct (intentional torts) or reckless misconduct

Question 7

Torts Remedies: Nominal damages

Answer 7

establish or vindicate plaintiffs rights: when plaintiff is slightly or not injured

Question 8

Torts Restitutionary Remedies: Kategorien

Answer 8

1. Restitutionary damages
2. Legal: replevin or ejectment
3. Equitable: imposed on improperly acquired property

Question 9

Torts Restitutionary Remedies: 1. Restitutionary damages

Answer 9

value of benefit to defendant that defendant didn’t pay for

Question 10

Torts Restitutionary Remedies: 2. Legal: replevin or ejectment

Answer 10

gemeinsam: recover possession of property wrongfully withheld

a) replevin: recover posseision of personal property
b) ejectment: ejct a) adverse possessor or b) holdover tenant from land

außerdem an Kombination denken: compensatory damages für plaintiffs lost use und restitutionary damages for defendants benefit or use

Question 11

Torts Restitutionary Remedies: 3. Equitable: imposed on improperly acquired property

Answer 11

a) when inadequate legal remedy:
(1) defendant insolvent
(2) unique property
If value of property goes up, recommend constructive trust (CT); if value goes down, recommend equitable lien (EL)

b) tracing: plaintiff can follow the property to whatever form it takes (Bsp. funds comingled)

Achtung: an defenses denken

Question 12

Begriffe: Constructive Trust v Equitable Lien

Answer 12

CT: kind of like an actual trust where the trustee holds legal title and the beneficiary holds equitable title. Bzw. defendant gilt als trustholeder für plaintiff They basically just give you the house.

Example: Lets say that Bob steals $1,000,000 from you. The day after stealing from you, he buys a house worth $1,000,000. You sue Bob, and the court says you hold the house in a constructive trust. After all, it is unlikely Bob has $1,000,000 in cash on hand. By this time, the house has appreciated by $100,000, and is now worth $1,100,000. You get the house, and you don’t have to account for that $100,000 at all. This is great for you, since you’ve basically profited from this whole ordeal. The reverse is also true. If the house had depreciated to $900,000, then you would still just get the house and Bob wouldn’t owe you any money.

Wichtig: CT immer bei unique property, dort bringt EQ wenig!

EQ: Security interest: An equitable lien is more like a debt secured by the house, kind of like a mortgage. Instead of the court saying “you owe this person the house” they’re saying “you owe this person a debt of $X secured by the house.” Remember that with mortgages in most states you are liable for the deficiency at foreclosure. Its similar with an equitable lien.

Example: Lets say that the value of the house was originally $1,000,000 but by the time you get your judgement it is worth $900,000. If you have an equitable lien for $1,000,000 you would get the proceeds from the house ($900,000) and still be owed $100,000 by the defendant. Conversely if the house has appreciated in value (say by $100,000) then you would owe the defendant $100,000 instead.

Because of that equitable liens are better if the house has decreased in value, but constructive trusts are better if the house has increased in value.

Question 13

Torts equitable remedies: Arten

Answer 13

a) Temporary restraining order (TRO): may be issued pending temporary injnction hearing
b) Temporary injunction: may be issued pending trial on the merits maintin status quo
c) Permanent injunction

Question 14

Torts remedies: Equitable remedies

Temporary restraining order

Answer 14

IBPL:
1. Irreparable injury: while waiting for temporary injunction (bei TRO zeitlich enger als bei TI: immediate, irreparable harm)
2. Balancing of interests: plaintiff injury v defendant hardship
3. Public interst favors granting
4. Likelihood of success on the merits: probability >50%

idR ex parte, issued by a judge before hearing
duration: usually 10 days, in federal courts 14 days

Question 15

Torts remedies: Equitable remedies

Temporary injunction (TI)

Answer 15

Same IBPL as TRO
aber: duration until completion of judicial proceeding (conclusion of full tiral)

Question 16

Torts remedies: Equitable remedies

c) Permanent injunction

Answer 16

IPFBD (I passed fucking bar dammit):
1. Inadequate legal remedy:
Bsp. $ 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 ormultiple 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 (“ must do X”) or negative (“cannot do X”). PI is disfavored if difficult for court to supervise or ensure compliance Bsp. Involves great taste, skill, judgment, or requires a series of acts or Requires out-of-state acts by nonresident defendant (harder to monitor if no personal jurisdiction)
4. Balancing of hardships inkl Wirkung auf Public: aber kein balancing, wenn defendants conduct willful war!
5. Defenses (for all equitable remedies?)

Duration: as long as necessary

Question 17

Torts remedies: Equitable remedies

Defenses (for all equitable remedies?)

Answer 17

1. Unclean hands related to present case and defendant
2. laches: unreasonable delay before statute of limitations (SOL) that results in prejudice to defendant
3. Undue hardship
4. Equitable estoppel
5. Free speech (v defamation, privacy, 1st Amendment case)
6. Injunction sought against defendants crime (dann criminal law, except crime is also public nuisance)

Question 18

Torts remedies: Equitable remedies

P: Who is bound?

Answer 18

1. Defendant
2. Employees or agents with notice
3. others acting in concert on notice

Question 19

Contract remedies: A. Legal remedies

Arten von Contract legal remedies

Answer 19

1. Expectation/Actual: wie im Deliktsrecht CFCU, aber expectation damages must be reasonably foreseeable at K formation!, if UCC: K price minus cover/resale price (s.u. dazu mehr)
2. Reliance: insb. dann wichtig wenn expectation damages nur speculative und nicht certain geng
3. Consequential: damages a reasonable person would have foreseen from a breach (e.g. lost profits)
4. Incidental: costs incurred reasonable incidental to breach (e.g. inspecdtion, appraisal, storage, shipping)
5. Liquidated: liquidated damages clause valid if (1) damages are difficult to ascertain at formation and (2) clause is a reasonable forecast of damages
6. Nominal: allowed but not favored bzw. selten
7. Punitive: not available in contract?

Question 20

Contract remedies: B. Restitutionary remedies

Arten von Contract restitutionary remedies

Answer 20

1. Restitutionary damages: value of benefit rendered, even if defendant never uses it or even if value > K price
2. land sale if property is unique or defendant is insolvent: ejectment, constructive trust, equitable lien
3. UCC: Buyer right of replevin for goods ID’d in K if after reas. effort, unable to effect cover (insufficient $)
4. 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 defendant repay value rendered by plaintiff

Question 21

Contract remedies: C. Equitable remedies

Arten von Contract equitable remedies

Answer 21

1. TRO/Temporary injunction: ähnlich wie Torts
2. Specific performance: unter bestimmten Voraussetzungen
3. Rescission: restores party to a point before formation by voiding the K
4. Reformation: modifies K so as to conform with parties original understanding

Question 22

Contract remedies: C. Equitable remedies

Anwendungsfälle von Contract equitable remedies

a

Answer 22

a) land sale K equitable conversion
b) unique goods
c) capable of immediate performance (e.g. requirements/output K)

Question 23

Equitable conversion

Answer 23

Quasi so eine Art Anwartschaftsrecht

Equitable conversion is a doctrine of the law of real property under which a purchaser of real property becomes the equitable owner of title to the property at the time he/she signs a contract binding him/her to purchase the land at a later date. The seller retains legal title of the property prior to the date of conveyance, but this land interest is considered personal property (a right to the payment of money, rather than a right to the property). The risk of loss is then transferred to the buyer – if a house on the property burns down after the contract has been signed, but before the deed is conveyed, the buyer will nevertheless have to pay the agreed-upon purchase price for the land unless the seller in possession or deemed in possession has failed to protect it. Such issues can and should be avoided by parties by stipulating in the contract who will bear the loss in such occurrences. The above rule varies by jurisdiction, but is the general rule.

Question 24

Contract remedies: C. Equitable remedies

Voraussetzungen Specific performance

Answer 24

VCIFD:

1. Valid K: terms are more definite and certain than for a $ damages case
2. Conditions for performance met: plaintiff has performed, is ready & able to perform or excused from performance
3. Inadequate legal remedies: $ damages low or speculative, unique item (all land, gilt dann auch für purchase price, both buyer & seller can get SP), land interest, defendant insolvent, ongoing suits, Achtung: SP grds. auch trotz liqiuidated damages clause möglich außer explizit als einziges remedy festgelegt
4. Feasibility of enforcement: Problemfälle: affirmative mandates, personal services, land sale where a party or land is out of state (jx), or construction
**5. Defenses: **
a) allgemeine ähnlich wie oben: (1) unclean hands, (2) laches, (3) undue hardship
b). contractual defenses: (1) unconscionability, (2) mistake, (3) misrepresentation, (4) undue influence, (5) impossibility, (6) SOF

Question 25

# Contract remedies: C. Equitable remedies 2 Problemfälle für Conditions for performance met

Answer 25

P1: Abatement (if deficient quantity or performance by plaintiff himself): If SP should be granted with defect, court will lower the purchase price to take the defect into account a) plaintiff 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 b) plaintiff as buyer (“I want to buy anyway”): Can enforce K even if material defect, unless very material P2: Forfeiture is disfavored (e.g., buyer makes late payment with time-of-essence clause in LSK, sues for specific performance, eigentlich: Verwirkung seines Anspruchs auf das Grundstück aber: “Equity abhors forfeitures” Tatbestand: Court look to factors to avoid harsh results of forfeiture (“don’t BLoW iT”) 1. Buyer will suffer undue hardship 2. Loss to seller is small 3. Waiver (seller has accepted late payments in past) 4. Tardiness is de minimis (reasonable) Rechtsfolge: SP usually awarded. Courts would give plaintiff restitutionary relief if SP not granted

Question 26

# Contract remedies: C. Equitable remedies Voraussetzungen Rescission

Answer 26

TB: **GD** I. Grounds for rescission: 1. Mistake 2. Misrepresentation (fraud) 3. Undue influence 4. Lack of capacity 5. Failure of consideration 6. Illegality II. Defenses: a) allgemein: unclean hands, laches (unreasonable prejudicial delay before SOL) b) NOT a defense: plaintiffs negligence RF: III. restores parties to a point before formation by **voiding** the K außerdem an restitutionary relief denken, wenn K schon (teilweise) performed wurde

Question 27

# Contract remedies: C. Equitable remedies Voraussetzungen Reformation

Answer 27

TB: VGD I. Valid K II. Grounds for reformation: 1. mutual mistake: both parties believed writing conformed 2. unilateral mistake: one party knows that writing does not conform 3. misrepresentation II. Defenses: a) allgemein: laches (unreasonable prejudicial delay before SOL), sale of subject matter to bad faith party b) NOT a defense: plaintiffs negligence, SOF, PER (parole evidence rule) RF: III. modifies written K so as to conform with parties's original understanding

Question 28

# Contract remedies: A. Legal remedies UCC damages Vertiefung

Answer 28

a) seller damages: K price - resale price (exercise good faith) or fair market value (if not resold) P: lost volume sellers: have effectively unlimited items, as many items as he can sell, damage = lost volume profit (= profit of the lost sale) + incidental damages b) buyer damages: K price - cover price (exercise good faith) or FMV (if not covered) P: merchants buyers duties when rightfully rejected goods: make reasonable efforts to sell for seller and be reimbursed up to 10% gross proceeds

Question 29

# Contract remedies Agreed to damages

Answer 29

a) **Liquidated** damages: enforceable only to compensate for breach (= reasonable estimate of damages in re anticipated harm), may not be a penalty for breach, unenforceable if designed to punish b) **limiting** damages: OK unless unconscionable (e.g. personal injury from consumer goods)