Remedies Final Flashcards

Question

Loss of use

Answer 1

* P must prove Needed the property Prevented from using the D’s actions

Answer 2

* P must prove Property was used to create income Consider factors like: Likelihood of success of business/transaction (business conditions, similar transactions, expert testimony, etc) Look out for foreseeability and certainty limitations

Answer 3

* No pure economic loss w/o physical harm UNLESS Intentional tort Professional malpractice

Answer 4

* When no actual damages BUT not if damages are required for claim

Answer 5

* Compensatory/nominal required first * Willful conduct (malice, oppression, or fraud) * Key factors Character of D’s act (req deterrence or punishment) Nature and extent of harm to P Wealth of D * Proportionality factors and 9 to 1 ratio

Answer 6

* Alternative to damages when inadequate or when other types of relief are unavailable * Restitution is available regardless of why D was unjustly enriched * The more conscious wrongdoing, the more likely D will have to disgorge all gains/profits

Answer 7

* Not unjust when P voluntarily confers benefit (officious benefit or good Samaritan) BUT P is entitled to restitution when D exercised a meaningful choice to accept the benefit from P OR D is in an emergency situation and Benefit conferred from P was necessary to prevent D from serious bodily harm or pain P intended to charge P did not have a reason to know D would not consent D’s consent was impossible (unconscious, a minor, etc)

Answer 8

* Money * Replevin – property + loss of profits * Ejectment – returning real property + damages for harm + damages for lost rental value/loss of use + damages for mesne profits If seeking mesne profits, a good- faith D is entitled to credit for value of any improvements D made to the property

Answer 9

* Constructive trust * Equitable lien * Purchase-money resulting trust * Subrogation

Answer 10

* D did not agree to hold assets on behalf of P, but unjustly enriched, so ct construes D as holding in trust of P and order conveyance of title to P * P entitled to the ENTIRE res * If property value bigger than D’s unjust enrichment, P gets to keep any increase * If property value less than D’s unjust enrichment, P gets only the property at whatever its worth * Preferred when property value has INCREASED

Answer 11

* Only when P is entitled to a PORTION of the res * If property value bigger than D’s unjust enrichment, P can get a deficiency ($) judgment for amount left owed * Preferred when property value has DECREASED

Answer 12

* D holds title to res (property/money) * But it rightfully belongs to P bc traced to D’s wrongdoing Tracing when commingled into a bank account P gets maximum benefit Assumption D spends own $ first Unless $ used to purchase new res and makes profits, then assumed P’s $ used LIMITATION – lowest intermediate balance rule When $ in account falls below amount traceable to P, $ gone and cannot be replenished LIMITATION – if res transferred to a bona fide purchaser For value AND w/o actual or constructive notice of P’s interest, P may not enforce * D keeping it – unjust enrichment

Answer 13

* P pays $ to purchase property * Title to property not put in P’s name, but D’s * P did not intend for D to become sole owner (so ct will imply D holding for P)

Answer 14

* P (subrogee) can stand in place of D’s creditor /lienholder and recover from D when P paid D’s debt to creditor/lienholder P was not primarily liable for the debt P did not voluntarily pay the debt and payment protects P’s interests P paid the entire debt Allowing P to recover by subrogation would not cause any injustice to the rights of others

Answer 15

* Backed by contempt of ct (fines, jail, both) * No right to jury trial; ct has discretion * Mandatory or negative Cts gen disfavor mandatory bc harder to enforce

Answer 16

* $ damages not available * $ damages inadequate (like health or safety concern) * Property is unique (ex. Real property always unique, sometimes personal items) * D is insolvent * Replevin or ejectment is impractical (ex. Item can’t be located or too difficult for sheriff to eject) * Potential for multiplicity suits * Abrogation of con rights * Loss of chance or advantage * Prospective tort (like imminent pollution)

Answer 17

* To prohibit future conduct, P must show there is a realistic threat from D that future harm or future injury from past harm is likely to occur Cannot be mere possibility or subjective, but sufficiently concrete

Answer 18

* Likelihood of success on the merits Only requires strong or substantial probability of success, not certainty * Irreparable harm focused on appropriate timing * Balance of equities or undue hardships (including public interest considerations like economy, environment, health, safety/security, etc) P if denied D if granted Public int Which hardships/burdens outweigh which benefits Willful conduct from D always weighs heavily

Answer 19

* Preserve the status quo until a hearing can be heard for a preliminary injunction * Lasts 14 days, can be renewed 14 more for good cause shown or consent * Can be obtained ex parte if Moving party can clearly show it will suffer immediate, irreparable injury before non-moving can be notified and hearing held Attorney certifies in writing efforts to notify and explanation for no notice * Gen not appealable

Answer 20

* Preserve the status quo during the case * Notice always required * Appealable

Answer 21

* Available after case over * Requirements Irreparable harm Feasibility of enforcement – considers administrative burden on the ct Negative – easier to enforce Mandatory – harder to enforce Balancing of equities or hardships (public interest) No defenses

Answer 22

* Unclean hands P engaged in wrongful conduct Directly related to the claim * Laches P unreasonably delayed D suffered material prejudice * Acquiesce P knowingly fails to object to an infringement of P’s rights By D who acted unknowingly and w/o malice

Answer 23

* Statutory remedy available under state/fed law * Ct declares party’s rights * Requires actual justiciable controversy (ripeness) Actual live concrete dispute

Answer 24

UCC - Goods (movable, tangible property) Common law - all else Unclear - Predominance Test: what is the predominant purpose of the contract as a whole?

Answer 25

Offer, acceptance, and consideration

Answer 26

Even if consideration is lacking, cts can still enforce a promise to prevent injustice by relying on promissory estoppel as a sub * Promisor makes a promise * Promisor foreseeably induces promisee’s reliance * Promisee actually relied on the promise Remedies are limited to reliance damages (as if promise was never made)

Answer 27

Inviting acceptance in any manner and by any reasonable medium under the circumstances

Answer 28

Parties, subject matter, quantity

Answer 29

 Made by merchant  Signed writing  Assurance it will be held open for a specified time  Does not require consideration  Irrevocable during the specified time, or if no time specified, then for a reasonable time (3 months max)

Answer 30

Manifestation of willingness to enter into a bargain

Answer 31

Intent Definite and certain terms  ID of parties  Subject matter * If land sale, price mandatory * Otherwise, ct can reasonably supply missing terms Communication to the offeree

Answer 32

Termination if o Offeree rejects o Offeree counteroffers o Offeror revokes, dies, or becomes incapacitated before acceptance  Cannot revoke if * Option K: consideration given for holding offer open for specified period of time * Detrimental reliance/partial performance: Offeree already began to perform (unilateral k) or offeree began to preparing to perform if justice requires (bilateral k) o After reasonable time

Answer 33

Yes, if * Based on prior dealings or trade practices * OR recipient of services knows or should have known that services were being rendered w/ expectation of compensation and, by a word, could have prevented services from being rendered

Answer 34

TBD - large text box

Answer 35

Manifestation of assent to the terms of the offer o Can be words or conduct o Methods of acceptance  Bilateral k (more typical): both parties make promises to perform  Unilateral k: offeror makes promise, and offeree accepts by actually performing

Answer 36

Mailbox rules  Acceptance is effective when sent  If rejection and acceptance sent, acceptance is effective if received first

Answer 37

Bargained for exchange of legal detriment * Inadequate consideration o Gifts, sham/nominal consideration, most benefits received in the past, and preexisting duty (unless owed to a third party)

Answer 38

SoF Misrepresentation/fraud in inducement Unconscionability Mistake Misunderstanding Illegality Lack of capacity

Answer 39

Requires 5 types of k to be in writing o Marriage (to do or not if married) o Real property interests  Except conveyance already made or 2/3 of payment, improvement, or possession o Debt of another/promise to pay o One yr (incapable of being performed within)  Except if full performance already occurred  If partial performance, restitution may still be available o Goods of $500 or more (sale)  Except (1) goods accepted or paid for, (2) admission in ct, (3) specially manufactured goods not suitable for others

Answer 40

Merchant’s confirming memo: enforceable against writer and recipient if  B/w two merchants  Non-signer receives signed confirmation and has reason to know contents  Non-signer does not object within 10 days of receipt Admission in ct Promissory estoppel  But recovery limited to necessary to prevent justice

Answer 41

Writing requirement (one or more writings can be combined) o Essential terms o Signed by the party to be charged

Answer 42

Can be innocent, negligent, or fraudulent (intentional) o False statement or omission of material fact o Justifiable and actual reliance o Misrep Damages (actual pecuniary loss) o Fraud Damages

Answer 43

k is so unfavorable to one party that no reasonable person would have agreed to it Assessed at the time of k formation o Procedural  Unfairness in the bargaining process o Substantive  Unfairness in the terms (not including unfair price)

Answer 44

Belief not in accord w/ the facts o Mutual  About a basic assumption existing at time of k formation  Material effect on deal  Adversely affected party did not assume the risk of the mistake o Unilateral  About a basic assumption existing at time of k formation  Material effect on deal  Adversely affected party did not assume the risk of the mistake  Other party knew or should have known of the mistake

Answer 45

Over ambiguous terms – depends on awareness o If both or neither aware of ambiguity, no k unless both parties intended the same meaning o If one party aware, binding contract based on ignorant party’s reasonable meaning

Answer 46

o Legal incapacity (i.e. minor, mental illness, intoxicated) o Duress o Undue influence

Answer 47

Conditions – event that must occur before party’s performance is due (i.e. provided that, if) o If condition does not occur, party’s performance is not due or is excused o Does not include promises – unconditional commitment to do or refrain from doing something and failure to perform is breach  Ambiguity usually resolved in favor of promise

Answer 48

 Express (through language) – requires strict compliance  Constructive (supplied by cts for fairness) – substantial performance sufficient

Answer 49

Can be waived by receiving and keeping benefit or failure to insist on condition  Waiver can be retracted unless other party has detrimentally relied

Answer 50

o Limits admission of evidence of discussions or writings  Made before or contemporaneous to  A written contract

Answer 51

Contradictions

Answer 52

Supplements – depends on integration * If k is totally integrated (final expression intended to include all details) – not allowed * If k is only partially integrated (final expression not intended to include all details) – allowed

Answer 53

Ambiguous k terms need interpretation o UCC considers  Course of performance  Course of dealing  Trade usage Condition precedent Contract failure defenses

Answer 54

Oral modifications typically allowed  Common law – no oral modifications clause not enforced  General exception – if k as modified falls under SOF, then must be in writing * If no writing – original k enforceable, but not modification (but may still operate as a waiver)

Answer 55

o An unequivocal expression o By a party o Occurring before the time for performance is due o That the party will not perform under the contract

Answer 56

When reasonable grounds for insecurity arise regarding performance, other party may in writing demand adequate assurance  For merchants, reasonableness of insecurity and assurance determined by commercial standards  Acceptance of improper delivery or payment does NOT prejudice right to demand adequate assurance of future performance Until assurance received, if commercially reasonable, may suspend performance (if not received agreed return)  After receipt of justified demand, failure to provide within a reasonable time not exceeding 30 days allows repudiation

Answer 57

Single delivery o Perfect tender rule: If goods fail to perform in any respect, buyer has the following options:  Reject the whole within a reasonable time  Accept the whole  Accept any commercial unit (whole part) and reject the rest

Answer 58

o Substantial conformity rule: Buyer can reject only when  Nonperfect tender affects the whole contract  Seller cannot cure

Answer 59

o Seller must give notice to buyer o New tender must be made within time for performance or after time of performance if seller has reasonable belief late tender would be acceptable to buyer

Answer 60

Material breach o No substantial performance under the contract o Effect: non-breaching party is excused from performance Minor breach o Yes substantial performance under the contract o Effect: non-breaching party must still perform but may recover damages

Answer 61

o Extent of benefit of bargain received o Extent of performance o Willingness of breach

Answer 62

Impossibility o Event that neither party assumed the risk of o And performance literally impossible Impracticability o Parties did not believe event would occur and did not allocate the risk of the event to the party seeking to use the defense o Event concerns basic assumption of the contract o Performance is extremely and unreasonably difficult Frustration of purpose o Both parties know the purpose of the contract o And event not reasonably foreseeable totally destroys the purpose for which the party seeking to use the defense entered the contract

Answer 63

Primary - Liquidated - Expectation - Reliance - Nominal Secondary - Consequential - Incidental - Punitive

Answer 64

Cts will enforce if reasonable in light of anticipated loss or actual loss o When difficult to estimate or prove the loss AND o Amount or formula is a reasonable forecast of the loss Cts will NOT enforce if damages are a penalty (unreasonably large or disproportionate to the breach) o When unenforceable, non-breaching can still get remaining primary damages depending on what actual damages can be proven

Answer 65

Damages that approximate the value of the bargained-for-benefit that the non-breaching party expected to receive (DEFAULT) * Limitations – causation, foreseeability (during formation), certainty, and unavoidability/duty to mitigate * Typically highest $, but when difficult to prove, look to next

Answer 66

Seller breaches * Buyer’s expectation: land’s FMV on due date of performance – k price * Minority rule – buyer only gets reliance UNLESS seller committed bad-faith breach Buyer breaches * Seller’s expectation: k price – land’s FMV on date of breach

Answer 67

When cannot prove damages w/ reasonable certainty Only choice if claims based on promissory estoppel (no consideration so no breach bc no valid k) Losing ks o Some cts cap reliance so no higher than expectation

Answer 68

* Lost profits * Available ONLY in addition to EXPECTATION * NOT available for nonpayment breaches (only general damages: unpaid $ + interest at the prevailing rate) o Assumption you can just borrow $ o Exceptions  Insured sues insurer for bad faith refusal to pay policy benefits  When k is a loan agreement Limitations apply

Answer 69

Must be reasonable both in terms of (1) whether expense should have been incurred and (2) how much the expense cost

Answer 70

* NEVER for basic breach o Society should not deter efficient breach * May be awarded for bad-faith or tortious breach (malice, oppression, fraud) o Breaching fiduciary duty, fraudulent misrep, intentional tort, etc o Key factors  Character of D’s act (req deterrence or punishment)  Nature and extent of harm to P  Wealth of D o Proportionality: 9 to 1 ratio * Compensatory/nominal required first

Answer 71

Not attempt to k, attempted but failed k) [if no consideration – promissory estoppel – reliance damages] o P performed services that benefitted D o P did not intend for services to be free and reasonably expected compensation for value of services o D would be unjustly enriched if D does not pay for P’s services

Answer 72

k exists but breached o P performed services for D o Rendered at D’s request o Services conferred a benefit to D

Answer 73

Meeting of minds, but written k has a mistake Parties bound by k but terms reformed to what parties intended o Elements  Existence of an agreement  Proper grounds for reformation (mistake/scrivener’s error or misrepresentation – unilateral mistake)  No defenses (equitable defenses and if reformation would adversely affect bona fide purchaser’s rights) * NOT parol evidence, SoF, and negligence  Cts reluctant to change a written k so clear and convincing evidence required

Answer 74

No meeting of the minds so parties released from k (back to before k) o Elements  No meeting of the minds  Proper grounds for recission like any k formation defense (mutual mistake, unilateral mistake, misrep)  No defenses (equitable defenses and if reformation would adversely affect bona fide purchaser’s rights) * NOT parol evidence, SoF, and negligence

Answer 75

Not available for personal service contracts (13th amendment prohibition of slavery) * Instead cts issue a negative injunction to prevent from working for another

Answer 76

* Inadequate legal remedy * Valid contract w/ definite and certain material terms * Conditions are satisfied, and both parties are ready and able to perform * Feasibility to enforce * No defenses including both basic equitable defenses and underlying contracts-based defenses o 3 equitable defenses (unclean hands, laches, and acquiescence)

Remedies Final Flashcards

(100 cards)