Remedies

Question 1

Order of Remedies Analysis

Answer 1

1. legal remedies
2. restitutionary remedies
   - legal restitutionary
   - equitable restitutionary
3. equitable remedies

Question 2

Compensatory Damages (Torts)

Answer 2

Damages based on Injury to plaintiff

1. causation (factual causation/but for)
2. foreseeability (proximate cause)
   - applies to economic losses only)
3. certainty (cannot be speculative)
4. unavoidability (p’s duty to mitigate)

Must be awarde as single lump sum, discounted to present valuation. inflation is not considerd except under more modern view

Question 3

Torts Nominal Damages (torts)

Answer 3

Awarded where Plaintiff has no actual injury, to establish or vindicate rights

Question 4

Punitive Damages (torts)

Answer 4

Awarded to punish defendant

1. plaintiff must have first recieved compensatory or nominal damages
2. defendants fault must be greater than negligence
3. punitive damages must be relatively proportionate (bc of due proceess; single digit multiple)

Question 5

Restitutionary Damages (torts)

Answer 5

based on benefit to the defendant

If both compensatory and restituionatry damages available, the plaintiff will get whatever is larger

Question 6

Replevin

Answer 6

Plaintiff recovers possession of specific personal property

1. the plaintiff has right to possession
2. there is a wrongful witholding by defendant

can recover before trial but must post a bond, then defendant can ost a redilvery bond to keep chattle until after trial
Sheriff reposess the property for plaintiff
usually coupled with damages

Question 7

ejectment

Answer 7

plaintiff recovers possession of speicific real property

1. the plaintiff has a right to possession
2. there is a wrongful withholding by defendant

sheriff ejects defendant from property
usually coupled with damages

Question 8

Constructive Trust

Answer 8

imposed on improperly acquired property to which defendant has title. Defendant must serve as trustee and must return the prop to plaintiff

Question 9

Equitable Lien

Answer 9

Imposed on improperly acquired property to which defendant has title. property willb e subjecet to an immediate court-directed sale with the money going to plaintiff. if not sufficient, plaintiff is entitled to a deficiency judgment against D.

Question 10

Constructive Trusts and Equitable Liens (rules)

Answer 10

Equitable Restitutionary Remedies:

1. inadequate legal remedy alternative
   - likely because defendant is insolvent or property is unique
2. tracing is allowed
3. bona fide purchasers prevail over plaintiff
4. plaintiff will prevail over unsecured creditors

Question 11

Preliminary Injunction

Answer 11

Issued pending trial on the merits

1. establish that ther is irreparable injury- can consider a balancing of hardships
2. establish that plaintif is likely to win on the merits.

impose a bond requirement

Question 12

Temporary restraining Order

Answer 12

Issued pending a hearing to determine whether a preliminary injunction should issue

Same test as preliminary injunction (irreparable harm and likliehood of success on merits) but can be ex parte and without notice
Limited to 10 days in ca and 14 days Fed

Question 13

Permanent Injunction

Answer 13

Issued after full trial on merits
1. inadequate legal remedy alternative
2. feasability of enforcement
- ther may be an enforcemtn problem with mandatory injunctions (forcing someone to do something)
3. balancing of hardships
- p's benefits vs. D's hardship
4. Defenses
- unclean Hands
- laches
impossibility
- free speech

Question 14

Compensatory Damages

Answer 14

Based on injury to plaintiff (commonly measured by expectation

1. causation
2. foreseeability (tested at time of formation)
3. certainty
4. p’s duty to mitigate

direct: flow inherently from breach
consequential: avaialbe for related damages foreseeable at time of formation

Question 15

Punitive Damages (contracts)

Answer 15

Not allowed!

Question 16

Liquidated damages (contracts)

Answer 16

1. damages difficult to ascertain at time of formation
2. liquidated damages clause provides a reasonable forecast

If clause provides for actual damages or liuidated damages it is invalid

Question 17

Restitutionary Damages (contracts_

Answer 17

Based on theory of unjust enrichment
Can recover value of benefit bestoed or get the proerty back if it is unique or defedant is insolvent

• traditionally a breaching party plaintiff could not recover: but today it can under modern view

Question 18

Specific Performance (contract)

Answer 18

Requiring def to perform:

1. contract is valid, certain, and definite
2. plaintiff’s contract promises must be satisfied
3. inadequate legal remedy alternative
   - land or unique goods
4. feasability of enforcemtn
   - no personal services contracts
5. defenses
   - unclean hands
   - laches
   - unconsionability
   - mistake
   - misrepresentation
   - statute of frauds

Question 19

Rescission

Answer 19

Equitable contract remedy

1. determing if there are grounds for recission
   - was contract propertly formed?
2. defense?
   - unclean hands, laches

if plaintiff sues for damages first, resicission is not allowed

Question 20

Reformation

Answer 20

Changes contract to conform to parties original understanding - Equitable remedy!

1. is contract valid
2. are there grounds for reformation
   - mutual mistake
   - misrepresentaiton
   - fraud
3. defenses
   - unclean hands
   - laches