Remedies Flashcards
(35 cards)
Torts: Compensatory Damages [goal + elements]
Put π in the position she would have been in had the injury not occurred. Damages must be (1) causal; (2) foreseeable; (3) certain; and (4) unavoidable.
Torts: Compensatory Damages – Future Damages
π must show that they are more likely to happen than not
Torts: Compensatory Damages – Unavoidability
π must take reasonable steps to mitigate damages.
Torts: Do certainty rules apply to general damages?
No. Jury can award any amount it wishes for pain and suffering and permanent disfigurement, subject to proper instructions
Torts: Can the jury award installment payments?
No. Must be a lump sum discounted to present value without taking inflation into account (except under the modern rule).
Torts: Nominal Damages
Awarded to π who suffers no actual injury.
Torts: Punitive Damages
Awarded to punish ∆. π first must have been awarded compensatory or nominal damages. The ∆’s fault must be greater than negligence. The amount must be relatively proportionate to actual damages (no more than 9x).
Torts: Restitutionary Remedies [Goal]
Awarded to avoid unjust enrichment.
Torts: Legal Restitutionary Remedies
Amount is based on the value of the benefit to the ∆ (in contrast with compensatory damages, which focuses on injury to π). The two legal restitutionary remedies are replevin and ejectment.
Can both compensatory and restitutionary damages be awarded to π?
No. But need to write about both on the exam. Has π been injured (compensatory damages)? Has ∆ benefitted (restitutionary damages)?
Replevin
Legal restitutionary remedy. π recovers possession of specific PERSONAL property. π must show (1) she has a RIGHT to possession and (2) there has been a wrongful WITHHOLDING by ∆. π can recover possession of the personal property BEFORE trial.
π will have to post a bond. ∆ can defeat immediate recovery by posting a re-delivery bond.
Ejectment
Legal restitutionary remedy. π recovers possession of specific REAL property. π must show (1) she has a RIGHT to possession and (2) there has been a wrongful WITHHOLDING by ∆. Ejectment is only available against a ∆ who has POSSESSION of the property.
Torts: Equitable restitutionary remedies
The two types are constructive trusts and equitable liens
Constructive Trust
Imposed on improperly acquired property to which ∆ has TITLE. ∆ acts as a trustee and must return the property to π.
Requires: (1) ∆ has title to property which (2) can be traced to property that ∆ wrongfully acquired from π.
Use when property value increases
Equitable Lien
Imposed on improperly acquired property to which ∆ has TITLE. Property is subject to an immediate court-directed sale, the proceeds of which go to π. If the proceeds are less than the FMV of the property when taken, a deficiency judgment will result.
Requires: (1) ∆ has title to property which (2) can be traced to property that ∆ wrongfully acquired from π.
Use when ∆ wrongfully appropriates money from π, which he then uses to improve other property (e.g., building an addition on ∆’s home with embezzled money from π)
When are the equitable restitutionary remedies of constructive trusts and equitable liens used?
(1) There must be an inadequate LEGAL remedy alternative
––is ∆ insolvent? is the property unique?
(2) Tracing is allowed
(3) BFPs prevail over π
(4) π will prevail over unsecured creditors
How to decide b/n constructive trust and equitable lien
If property value goes UP after taking –> constructive trust
If property value goes DOWN after taking –> equitable lien
If ∆’s property cannot be traced solely to π’s property, only an equitable lien is available
––i.e., if ∆ did not use π’s property to obtain title to ∆’s property, then a constructive trust remedy does not work
––example: ∆ misappropriates money and uses it to remodel his house –> since title to ∆’s home was not obtained by use of the money, the property remedy is an equitable lien
Equitable remedies: distinctions between permanent injunction, preliminary injunction, TRO
Permanent injunction: issued AFTER a full trial on the merits
Preliminary injunction: issued PENDING trial on the merits
TRO: issued PENDING a hearing for a preliminary injunction
Elements for temporary injunctive relief (PI or TRO)
π must show…
(1) IRREPARABLE INJURY will occur if π needs to wait for a trial on the merits/PI hearing;
(2) the irreparable injury outweighs any HARDSHIP ∆ will suffer if a temporary injunction is granted;
(3) likelihood of SUCCESS on the merits;
(4) in public interest
Courts typically require that π post a bond, to reimburse ∆ in the event π does not succeed at the hearing or trial.
If TRO: mention ex parte; mention 10-day limit (CA) / 14-day limit (FED)
Elements for permanent injunctive relief
(1) There must be an INADEQUATE legal remedy alternative…
––Replevin (inadequate b/c sheriff can’t find property or ∆ could simply file re-delivery bond)
––Ejectment (inadequate b/c sheriff may refuse to act)
––Damages (inadequate b/c (i) too speculative; (ii) ∆ is insolvent; (iii) irreparable injury; (iv) need to avoid a multiplicity of actions
(2) Enforcement of the injunction must be FEASIBLE
––Enforcement can be an issue w/ mandatory injunction where there is difficulty of supervision or a concern with effectively ensuring compliance
––Note: courts will NOT grant a permanent injunction against a non-resident ∆
(3) π’s benefit OUTWEIGHS ∆’s/public’s hardship (gross disparity)
Defenses against award of permanent injunctive relief
Unclean Hands
Laches: unreasonable and prejudicial delay in π bringing claim
––Note: clock starts when π learns of her injury
Impossibility: ∆ cannot fulfill
Free speech: for defamation or privacy torts
Contracts: Compensatory Damages [goal + requirements + types]
Put π in as good a position as if the breach had not occurred. π must show (1) causation; (2) foreseeability; (3) certainty; and (4) mitigation.
Expectation Damages
––The most common measure of damages is the expectation measure, whereby π is given the benefit of her bargain.
Reliance Damages
––Put the π in as good a position as she would have been in had the K never been performed
Consequential Damages
––Reflect losses over and above expectation damages. They must be foreseeable. Not available to sellers under UCC.
Incidental Damages
––Costs associated with caring for goods after breach or for arranging a substitute transaction. Need not be foreseeable.
Contracts: Liquidated Damages
Clause is valid when (1) damages are very difficult to ascertain at time of contracting and (2) the amount is a reasonable forecast of what they would be.
Note: a clause that allows for either actual or liquidated damages is invalid –> give π actual compensatory damages
Contracts: trigger for restitutionary remedies
Prevent unjust enrichment. Where a party has performed and then the contract is breached or the contract is unenforceable, look to restitution.
π gets value of the benefit conferred; π can also get the property back if it is unique or ∆ is insolvent
