Remedies

Question 1

Tort Remedies

Answer 1

Damages: Com Nom P D

1. Compensatory: FACUE (Actual Causation, Foreseeable, Certainty, Unavoidable, Econ Loss)
2. Nominal
3. Declaratory
4. Punitive

Restitutionary Remedies RRECE

1. Restitutionary Damages
2. Replevin
3. Ejectment
4. Constructive Trust
5. Equitable Lien

Injunctive Remedies:

1. IPFBD (Inadequacy of Legal remedy, Protectable interest, Feasibility of enforcement, Balance Hardship vs Benefit, Defenses must be overcome: Laches, Unclean Hands, Freedom of Speach, Crim pros)

Types of Inj

1. Mandatory
2. Prohibitory
3. Temp Rest Ord
4. Prelim
5. Perm

Question 2

Contract Remedies

Answer 2

Damages:

1. Compensatory: std expectancy/benefit of the bargain: FACUEV (Actual Causation, Foreseeability, Certainty, Unavoidability, Value: mv at breach)
   - Std: Promise - Given + Consequential (natural result + notice) - Expenses saved + Incidental
   - Resale: Kprice - resale + Incidental - Expenses saved
   - Loss-volume: Kprice - Market price + Indidental - Expenses saved
   1a. Reliance:
   1b. Consequential
   1c. Liquidated
   1d. Punitive
2. Restitutionary remedies
3. Equitable
   3a. Spec Perf: CCIMFD (Contract is valid, Conditions are performed/excused, Inadequate legal remedies, Mutuality of performance, Feasibility of enforcement, Defenses must be overcome LUUUM: laches, Unclean Hands, Undue Hardship, Unconscionability, Mutual mistake)
   3b. Rescission: IFILMMUD (Illegality, Failure of Consideration, Impossible Performance, Lack of capacity, Misrepresentation of material fact or law, Mistake: mutual or uni, UI, Duress)
   3c. Reformation

Question 3

Defenses

Answer 3

Equitable: Laches, Unclean Hands, BFP, Undue Hardship, unconscionability

Law: In pari delicto, mistke, freedom of speech

Law&Equity: Estoppel, Promisory Estoppel, Waiver

Question 4

Claims and defenses

Answer 4

1. CT and EL: laches, unclean hands, BFP
2. Inj: laches, unclean hands, free speech, crim pros
3. Spec Per (LUUUM): laches, Unclean Hands, Undue Hardship, Unconscionability, Mutual mistake
4. Rescission: laches, unclean hands
5. Reformation: laches, bfp

Question 5

Tort Compensatory

Answer 5

Compensatory: FACUE

1. Actual Causation: but for
2. Foreseeable at time of K: Not too remote
3. Certainty (not speculative): look at past performance, other business w/in the industry
4. Unavoidable: reasonable attempt to mitigate (uncertainty resolved in favor of ?)
5. Economic loss rule: ONLY in Neg cases (not intentional tort), no tort recovery for economic when ? suffers no PI or physical injury to OTHER prop (e.g. lost wages)

Question 6

Tort Nomial

Answer 6

Nominal: compensate dignitary harm, and establish a Π’s right

Question 7

Tort Dec Jdg

Answer 7

Declaratory remedies: uncertainty of right/obligation is clarified to prevent harm if parties acted in state of uncertainty (e.g. patent infringement, insurance coverage)

Question 8

Tort Punitive

Answer 8

Exemplary damages

MUST also receive at least nominal, compensatory or restitutionary damages.

Purpose: deter or punish willful and conscious disregard of the rights and safe of others

Action based on malice, fraud, oppression

Cap of 10:1 to comport w/DP

Question 9

Tort Restitutionary Damages

Answer 9

Prevet unjust enrichment: benefit conferred to D

Question 10

Replevin

Answer 10

Recover specifically ID personal prop/goods (not RP)

Question 11

Ejectment

Answer 11

Recover possession of prop (Π has title but no possession of RP)

Question 12

Constructive trust

Answer 12

• Title remains w/Δ but imposes trust (imposes strict rules of fiduciary duty) to convey title to Π w/benefit of enhanced value
• If CT, then EL also available (e.g. money used to buy the whole building losses money thus constructive trust helps keep title but not force sale and lose money. Vs if prop improves in value, look at which one is better)
• Key issue: TRACE prop to the wrong by Δ
• Defense: laches, uncleaned hands, BFP

Question 13

Equitable lien

Answer 13

• Encumbers prop interest of Δ (imposes a lien) E.g. prop interest or improvement is traceable to the wrong
• Key issue: TRACE improvement to the wrong by Δ
• Defenses: laches, uncleaned hands, and BFP

Question 14

Injunction

Answer 14

I put five bucks down

Inadequacy of Legal Remedy: money damages are inadequate, money dam is speculative, multiplicity of suits, prospective tort, replevin or ejectment is inadequate, Δ is insolvent, nuisance, unique prop

Protectable interest party seeking Inj has some protectable interest at stake (similar to standing)

Feasibility of Enforcement: Ct must be able to enforce the order (mandatory vs prohibitory: neg Inj vs Out of Jx Inj)

Balance the hardship vs benefit to P: substantial vs slight. Intentional conduct is more likely to be restrained. Public hardship is included in analysis. Look for ripeness

Defenses MUST be overcome: laches, uncleaned hands, free speech, crim prosecution

Question 15

Types of Inj

Answer 15

Mandatory: stayed pending appeal

Prohibitory: effective through appeal

Temp Restraining Order (TRO): preserve status quo, 10-14days, ex parte, no balancing of hardship vs benefit BUT risk of imminent irreparable harm (BOP increases: little showing)

Prelim (BOP increases): preserve status quo, until proceedings, Balance hardship vs benefit

Perm (BOP increases): grant relief sought, gen 3yrs, Balance hardship vs benefit

Question 16

Collateral Source Rule

Answer 16

Damages is limited to what is actually paid for med cost by ins and Δ cannot offset by amount of compensation Π received by T

Question 17

Double recovery rule

Answer 17

P cannot obtain more than one recovery for the same injury

Question 18

Subjugation

Answer 18

T-party (ins) right to be reimbursed out of the tot recovery for expenses paid on behalf of Π

Question 19

Economic loss rule

Answer 19

ONLY in Neg cases (not intentional tort), no tort recovery for economic loss when Π suffers no PI or physical injury to OTHER prop (e.g. lost wages)

Question 20

K Compensatory

Answer 20

• Restore P to its rightful position (had the promise been performed)
• Std of measure is Expectancy: benefit of the bargain. Defense for Exorbitant expectancy damages: mistake or K is unconscionable

FACUV

Actual Causation: but for

Foreseeable at time of K: Not too remote

Certainty (not speculative): look at past performance, other business w/in the industry

Unavoidable: reasonable attempt to mitigate (uncertainty resolved in favor of Π)

Value: market value at time of breach

Question 21

K Compensatory formulas

Answer 21

Std Formula: Promise – Given + Consequential – Expenses saved + Incidental damages: inspection, transportation, storage, etc

Formula for resale (Notice to buyer): K price – resale price + Incidental – Expenses saved

Loss-volume seller (lost profits: unlimited inventory, ability to produce and sell): K price – market price = profits (+ incidental – Expenses saved)

Question 22

Reliance Damages

Answer 22

Baseline if expectancy is too speculative

Damages reasonably expended in reliance (preparation) on the promise “out-of-pocket.” Put Π in position had the K never been performed.

Question 23

Consequential damages (Baxendale)

Answer 23

Damages foreseeable AT THE TIME of K that breaching party should have expected to cause to P (notice is required)

Question 24

Liquidated Damages

Answer 24

Mens rea: negligence

Parties stipulate damages reasonable in contemplation of actual or anticipated damages from a breach

1. Damages for K breach are difficult to measure at the time of K formation
2. Amount is reasonably estimation of compensatory damages

Test: compare damages prospectively probable at the time of K formation vs LD amount. If seen by Ct as penalty (more than negligent mens rea) = not enforced

Question 25

Punitive in K

Answer 25

Not in K but if conduct is reprehensible make an argument for independent tort (e.g. fraud, misrepresentation)

Question 26

K Restitutionary remedies

Answer 26

- Prevents unjust enrichment and disgorge Δ’s profits (benefit conferred) - ONLY if remedies are sough outside of K because K is 1. Invalid 2. Unenforceable (or K does not exist: quasi-K) Exception: volunteer rule: volunteer not entitled to restitutionary damages. Exception to exception: emergency services (confers benefits + reasonable expectation of being compensated + D would unjustly enrich)

Question 27

K Equitable remedies: Spec Per

Answer 27

Even if goods are not specifically ID (replevy) and NOT for services (Cha Cha Is My Favorite Dance) 1. Contract is valid (not unconscionable) 2. Conditions are performed or excused by non-breaching party (if non-performance by Π look for Restitutionary remedies) 3. Inadequacy of legal remedy: unique, extremely rare items (e.g. RP) NOT for services 4. Mutuality of performance: counter-performance 5. Feasibility of enforcement: performance is possible under the K 6. Defenses MUST be overcome LUUUM: Laches, Unclean Hands, Undue Hardship (to breaching party OR public), Unconscionability, Mutual mistake

Question 28

K Equitable remedies: rescission

Answer 28

- Original K is voided AND rescinded. Parties are left as though K never existed - Possible grounds for rescission AT THE TIME of K formation: I FILM MUD 1. Illegality 2. Failure of Consideration 3. Impossible Performance 4. Lack of Capacity 5. Misrepresentation of material fact or law 6. Mistake: mutual, or unilateral if other party knew or should have known of the mistake, or uni if hardship to mistaken party 7. UI 8. Duress Defenses: laches, and uncleaned hands

Question 29

K Equitable remedies: Reformation

Answer 29

Ct reforms terms of K as to reflect the original intent of the parties 1. Valid K 2. Writing fails to express accurately the agreement of the parties Defenses: BFP, laches

Question 30

JX

Answer 30

1. Personal: over the person or item a. Fed Cts follow state Ct: see long-arm statutes b. In personam c. In rem action: action over prop w/in Ct’s jx even if the person is not w/in 2. SMJX

Question 31

Defenses in general

Answer 31

1. Equitable a. Laches: party delays in bringing an equitable action AND delay prejudices Δ (because of: loss of evidence, value fluctuation: playing the market to seek higher market value) - More delay requires less prejudice showing b. BFP: innocent buyer of prop for value w/o notice - Constructive notice: under the circumstances deal is too good to be true - Thief: Cannot acquire title to stolen property even if w/o notice; except: cash, or negotiable securities (e.g. bonds) - Cuts off right to SpecPer claim because good is already sold (unless theft) c. Unclean Hands: party seeking SpecPer is guilty of some wrongdoing related to the transaction that is part of the claim d. Undue Hardship (equity): greatly disproportionate hardship to Δ - For K look into inadequate consideration and unconscionable K e. Unconscionability: adhesion K evidences procedural uncons, then Ct analyzes substantive uncons (key: superior bargaining power) e1. Procedural Un: K of adhesion and inadequacies factors: superior bargaining power, age, literacy, lack of sophistication, hidden or unduly complex K terms, bargaining tactics, setting during K formation e2. Substantive Un: harsh or unfair one-sided terms in the K 2. Legal a. In pari delicto: Narrower issue than unclean hands. Π bears at least SUBSTANTIALLY equal responsibility for wrong AND preclusion of claim would not significantly interfere w/enforcement of law b. Estoppel (legal and equity): One party detrimentally relies (prejudice) on other party’s earlier statement or conduct c. Promissory estoppel (legal and equity): same as estoppel in K setting d. Waiver (legal and equity): intentional (voluntary) relinquishment of a right e. Mistake f. Freedom of speech: