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Flashcards in Remedies Deck (17):
1

Injunctions

1. P will suffer irreparable harm without injunction (inadequate remedy at law)

2. P's hardships significantly greater that D (balancing of equities);

3. likelihood that P will succeed on the merits;

4. feasibility of enforcement

2

Specific performance

1. Existence of K;

2. K terms sufficiently certain to provide basis for court order;

3. satisfaction/excuse of conditions precedent for D's performance;

4. damages are inadequate;

5. relief is equitable;

6. feasibility of enforcement

3

Recission

P must give notice to D and return benefits of K prior to filing suit and upon discovery of grounds for rescission

4

Unclean hands

P's conduct must be unethical or immoral; closely relate to P's claim

5

Laches

unreasonable delay in pursuing remedy that P was aware of; delay caused prejudice to D

6

Constructive trust

D holds title to property subject to constructive trust; D's retention of property would unjustly enrich D; legal remedy is inadequate

7

Subrogation

permits P to stand in shoes of a creditor/lienholder if D is unjustly enriched and P's property was used to discharge an obligation/lien on D's property

8

Pain and suffering

loss of physical abilities; loss of enjoyment of life; illness and/or emotional distress; no need to suffer pecuniary loss but must suffer pain

9

Medical expenses

reasonable expenses necessarily incurred in treating an injury/illness suffered as consequence of D's tortious conduct (future expenses are recoverable)

10

Lost earnings capacity

amount of damages is focused on the loss/diminution of P's earning capacity, whether employed (actual earnings) or unemployed (loss of opportunity)

11

Reliance damages

expenditure made in preparation for performing the contract, as well as expenditures made in performing the contract; cannot exceed the contract price

12

Nominal damages

When P has established the elements of a cause of action, but has suffered little or no harm/loss

13

Punitive damages

punish a defendant who engages in serious misconduct with an improper state of mind

usually not awarded in excess of compensatory damages

14

Incidential damages

damages that arise when non-breaching party is trying to remedy the breach

15

Compensatory damages (tort)

Retrospective

Put P in same position he was in prior to tort, including past/present/future harms

Includes pain and suffering (no pecuniary loss required – noneconomic damages) and loss of enjoyment

16

Reformation

Judicial rewriting of an agreement to reflect the parties' true intent (usually for mutual mistakes, or unilateral mistake when the other party is aware of mistake)

1. prior agreement (oral or written) between the parties;
2. an agreement by parties that put the prior agreement into writing
3. as result mistake, there is a difference between the prior agreement and the writing

17

Replevin

P can regain possession of the property and recover damages for loss of use of the property