Specific Performance – Very Many DICE games are decided by specific performance
MUTUALITY of remedy – traditionally, a mutual remedy was required for specific performance, but modernly, specific performance can be granted without mutual remedy
DEFENSES – No defenses must exist to the contract (including unclean hands, laches, mistake, misrepresentations, statute of frauds, or unconscionability).
INADEQUATE legal remedy available
CONDITIONS in the contract satisfied
ENFORCEMENT feasible by court
Types of Injunction – Try Praying Peacefully
TEMPORARY restraining order
Getting a Permanent Injunction – In Prisons Felons Bake
INADEQUATE legal remedy
PROPERTY right – traditionally, a property right was needed, but now only a legitimate protectable interest
FEASIBILITY of enforcement
BALANCING hardships - Plaintiff’s BENEFIT versus the Defendant’s HARDSHIP
Getting a Preliminary Injunction – Sing Blues Loudly
STATUS QUO – Is Preliminary Injunction necessary to maintain status quo?
LIKELIHOOD OF SUCCESS – plaintiff must show that a permanent injunction is likely to be obtained
TORTS REMEDIES: COMPENSATORY DAMAGES
These are based on the injury to the plaintiff and are to put the plaintiff in the position she would have been in if the injury would not have occurred.
4 REQUIREMENTS (Focus on the injury to the Plaintiff):
1. Causation: The tortuous conduct actually caused the injury.
2. Foreseeability: The injury must have been foreseeable at the time of the tortious act.
3. Unavoidable: Plaintiff could not have avoided the injury. (Think: Mitigation).
4. Certainty: Damages cannot be too speculative.
o Plaintiff must show→ Past losses must be established with more certainty than future.
o Plaintiff must show→ Future losses must be shown that they are more likely to happen than not – “all or nothing rule”.
o A record helps to provide certainty
TORTS REMEDIES: SPECIAL DAMAGES VS. GENERAL DAMAGES
Special Damages: These are the economic losses. The basic certainty rules do not apply here. Calculation for special damages must be made with sufficient certainty. (Medical expenses / Lost earnings).
General Damages: Non-economic losses. The basic certainty rules do apply here. The jury may award any amount it wishes, subject to proper instructions (Pain and Suffering, Permanent Disfigurement).
TORTS REMEDIES: NOMINAL DAMAGES
Awarded when Plaintiff has no actual injury.
TORTS REMEDIES: PUNITIVE DAMAGES
Awarded to punish the defendant for willful, wanton or malicious conduct.
Plaintiff must first be awarded compensatory, nominal or restitution damages. Once these are awarded, than can add the punitive damages last!
1. The defendant’s conduct must be reprehensible.
2. There must be disparity between the actual or potential harm suffered by the plaintiff and the punitive award.
3. Defendant’s fault must exceed negligence (i.e., intentional).
4. Damages must be awarded in an amount relatively proportionate to actual damages – (as actual damages go up, punitive damages go up). Supreme Court would limit Punitive Damages to a single digit multiple of actual damages (unless conduct facts are extreme)
TORTS REMEDIES: RESTITUTIONARY DAMAGES
Based on the benefit to the defendant, as judged by the value to the defendant
Cannot get both compensatory & restitutionary— write about both, show how both are potentially available to plaintiff, and then say that s/he is not entitled to both (award higher recovery)
Can get punitive damages as well as restitutionary if the underlying cause of action is a tort
TORTS REMEDIES: REPLEVIN
Type of restitutionary damages
Plaintiff recovers possession of specific personal property. Must establish that:
1. Plaintiff has a right to possession, and
2. There is a wrongful withholding by Defendant.
a. If Plaintiff can recover chattel before trial, Plaintiff must post a bond.
3. Sheriff, not Plaintiff, repossesses the property.
Bring up damages for lost use (compensatory) or benefit to Defendant (restitution) during the time of detention..
TORTS REMEDIES: EJECTMENT
Plaintiff recovers possession of specific real property. Must establish that:
1. Plaintiff has a right to possession; and
2. There has been a wrongful withholding by Defendant (same test as replevin).
Only awarded against a Defendant who has possession of the property; not a mere trespass.
Property cross-over: Comes up a lot with a holdover tenant.
Sheriff ejects Defendant from the property
TORTS REMEDIES: CONSTRUCTIVE TRUSTS
Where the Defendant has improperly acquired property to which defendant has title. The defendant serves as “trustee” and must return the property to the plaintiff.
o Purpose is to prevent unjust enrichment. Defendant has acquired title to the property at the expense of another through fraud, undue influence, and/or mistake. (Remember: Title to the property can be a thief who has title to cash in his possession).
o In order to be imposed, defendant must currently have title to the property! (personal or real)
o Tracing: If the property is sold, the plaintiff can trace the property to whatever form it takes, as long as the trust res can be identified However, where withdrawals from a commingled account cause the balance to sink below the amount of the injured party’s claim, the victim may obtain an equitable lien only to the extent of the lowest intermediate balance of the account.
TORTS REMEDIES: EQUITABLE LIENS
Will be imposed on Defendant’s property to secure a debt – occurs with improperly acquired property to which Defendant has title. Must show that:
1. The wrongdoer misappropriated the plaintiff’s property under the circumstances creating a debt or an obligation to pay;
2. Plaintiff’s property can be traced to the property held by the defendant; and
3. The retention of property would result in unjust enrichment.
o There will be an immediate Court ordered sale of the property the monies received go to the plaintiff. If the proceeds of the sale are less than the FMV of the property when it was taken, a deficiency judgment will issue for the difference and can be used against defendant’s other assets.
Constructive Trusts and Equitable Liens can be used ONLY when the fact pattern indicates that he defendant has title to the property.
TORTS REMEDIES: INJUNCTION
The Defendant is ordered to do or refrain from doing something. It is almost always coupled with damages incurred in time period prior to obtaining injunction. 3 types:
o AFTER a full trial on merits one must show that s/he will incur irreparable injury while waiting for a full trial on the merits which is why P needs relief now.
o Parties, Employees and agents acting with notice & third parties acting with notice are bound by injunctions:
PRELIMINARY INJUNCTION: Issued PENDING trial on the merits. Court considers:
o Whether a preliminary injunction is necessary to maintain the status quo;
o Balancing of Hardships; and
o Plaintiff’s Likelihood of Success: Plaintiff must establish this probability.
TEMPORARY RESTRAINING ORDER (TRO): Pending hearing on temporary injunction. Must establish:
o Irreparable injury and Plaintiff’s likelihood of success.
PERSONAL PROPERTY TORTS REMEDIES
Interference with Chattels
o Compensatory damages: Actual damages suffered by impairment of the property or loss of its use; Loss of use only if the chattel is not easily replaceable.
o Restitutionary damages: If the defendant benefits from the use.
o Constructive trusts / Equitable liens: If the defendant is insolvent and has title and/or tracing facts involved
o Compensatory damages: The difference between the value of the property immediately before and immediately after it was damaged + reasonable cost of repairs + damages resulting from the loss of use of the property, including loss of profit
o Compensatory damages: Full value of the chattel before destruction less salvage or difference between pre- and post- tort value
o Value: Typically market value, but if chattel is a unique item, may be measured by value to the owner
o May be able to get punitive damages if there is malicious conduct
REAL PROPERTY TORTS REMEDIES
(TRESPASS, DESTRUCTION, DISPOSSESSION)
o Nominal damages: Where there is no actual injury
o Restitutionary damages: If trespasser has been unjustly enriched from trespass
o Injunction: To avoid multiple suits
Destruction / Damage of realty
o Compensatory damages
o Compensatory damages: Value of actual damages suffered by impairment of the property or loss of its use
o Restitutionary damages: If tortfeasor benefits from use
o Ejectment (thus no injunction): Available where the p proves the right of possession and wrongful withholding by the d and the p recovers the property.
o Constructive trusts / Equitable liens
REAL PROPERTY TORTS REMEDIES
(ENCROACHMENT, NUISANCE, EASEMENTS)
Encroachment: Where the defendant’s structure invades the plaintiff land or airspace
o Compensatory damages: Difference between rental value the property would have without the harmful encroachment and what that rental value would be with the encroachment
o Injunction: Balancing of hardships (land is unique; consider laches and public interest defenses)
o No restitution
Nuisance: Where the invasion of the property is temporary and no physical harm has been done
o Compensatory damages: Loss of use and enjoyment, emotional distress, etc. for the period of the invasion
o Injunction: Emphasize balancing of hardships (coming to the nuisance is not a good defense).
o No restitution
Easements: Interference with easement
o Compensatory damages: For loss of use
o Injunctive relief
PERSONAL INJURY TORTS REMEDIES
Compensatory damages: Damages for conscious pain and suffering proximately caused by a tortfeasor's wrongdoing (physical pain or injury)
o Economic losses/special damages (lost wages): Certainty rules apply.
o Non-economic loss/general damages (pain & suffering): Certainty rules do not apply; conversion of such injuries into a dollar value is left to the discretion of the trier of fact.
o Lump sum payment: Inflation not considered.
Injunction: Only against prospective intentional tortious conduct
TORTS: FRAUD REMEDIES
o Punitive Damages
o Constructive trusts / Equitable liens
CONTRACTS LEGAL REMEDIES: DAMAGES
Compensatory (Nominal & Punitive not allowed; based on injury to the plaintiff).
o Four Requirements (Same as Torts): (1) Causation, (2) Foreseeability (time of formation), (3) Certainty, (4) Mitigation (focus on injury to the plaintiff).
Consequential damages: Available for related damages foreseeable at time of contract (includes reputation damages).
Nominal Damages: Does not come up.
Punitive Damages: Cannot recover
Liquidated Damages: Requires: (i) Damages were very difficult to ascertain at contract formation, and (ii) Clause was a reasonable forecast of what they would be. If the amount is excessive, it will serve as a penalty.
o If valid, only liquidated amount is available; if invalid, still get damages, but only actual compensatory damages are available.
o A clause that provides for either actual damages or liquidated damages is invalid provision.
CONTRACTS: LEGAL RESTITUTIONARY DAMAGES
Prevents unjust enrichment (value of benefit to the defendant). Depends on whether the contract fails because it is unenforceable or because of a breach.
o Quasi-Contract / Unenforceable Contract: Mistake, lack of capacity, Statute of Frauds, illegality, misrepresentation. Plaintiff can recover:
• Restitutionary damages for property / money /services rendered to the defendant.
• Replevin: Can recover if property is unique or the defendant is insolvent.
Breached Contract: Ask, ‘Which party has breached?’ Applies only where the Plaintiff is a non-breaching party.
o If the plaintiff is the breaching party:
• Traditional view: No recovery (this governs)
• Modern view: Recovery is allowed. Breaching party is entitled to monetary award, but it cannot be greater than the contract rate and is reduced by any damages suffered by the d resulting from breach.
• Cannot get both compensatory & restitutionary
CONTRACT EQUITABLE REMEDIES: SPECIFIC PERFORMANCE
The defendant must perform the contract if 5 requirements are met. Consider any defenses.
Contract validity: Contract must be valid to be enforceable.
Any Plaintiff’s conditions must be satisfied: The plaintiff must be able to show that his or her contract’s conditions have been fulfilled (satisfied or excused).
Inadequate Legal Remedy Available
o Money damages inadequate because: too speculative, Defendant is insolvent, would cause multiple suits, contract involves a unique item (determined at time of trial – look for rare, personal significance).
Mutuality of Remedy
o Traditionally, specific performance would not be enforced if the remedy was not mutual.
o Modernly, specific performance can be granted – even if the remedy is not mutual.
Feasibility of Enforcement
o Court must be able to enforce the contract.
o Enforcement is NOT feasible with service contracts.
Equitable Defenses: Unclean Hands, Laches, Unconscionable
Contract Defenses: Mistake, misrepresentation, statute of frauds
CONTRACT EQUITABLE REMEDIES: RESCISSION
Original contract considered voidable and rescinded.
Election of Remedies:
o If the plaintiff sues for damages first, rescission is not allowed (because the damages affirm the contract).
o If the plaintiff sues for rescission first, damages are allowed (can sue for both & choose before judgment).
Availability of Restitution: If the plaintiff who is entitled to rescission has previously performed on contract, the plaintiff can get compensation for it or get the property back via restitution.
Grounds for Rescission: Determine if there are grounds for rescission (Mistake, fraud/misrepresentation, coercion, undue influence, lack of capacity, failure of consideration, illegality.)
Valid defenses: Determine if there are valid defenses:
o Unclean Hands
o Non-Defense: Negligence on behalf of Plaintiff is NOT a defense.
CONTRACT EQUITABLE REMEDIES: REFORMATION
Changing the written agreement to conform to parties’ original understanding.
Valid Contract: Determine if there is a valid contract.
Grounds for Reformation: Determine if there are grounds for reformation:
o Mutual mistake: Granted
o Unilateral mistake: Denied, unless non-mistaken party knew (not should have known)
o Misrepresentation: Granted, available to both innocent & intentional misrepresentation as the rewriting reflects expressed intent of parties
Valid Defenses: Determine if there are valid defenses.
o Unclean hands
Non-Defenses: Negligence of the plaintiff, Statute of Frauds, and Parol evidence rule.
o Reformation not allowed when would adversely affect rights of subsequent bona fide purchaser
CONTRACTS REMEDIES: PERSONAL PROPERTY SALE CONTRACTS
o If the Seller breaches (does not convey or delivers damages goods)
o If the Buyer breaches (does not pay)
o For unenforceable / Breached contracts
Specific Performanceo Where personal property is not unique - but with exceptions
CONTRACTS REMEDIES: REAL PROPERTY SALE CONTRACTS
o If the seller breaches (does not convey)
o If the buyer breaches (does not pay)
o For Unenforceable / Breached contracts
o Where land is unique
o Buyer & Seller can get specific performance
o Deficiencies / Time of Essence Clauses (“conditions”) & Equitable Conversion facts
• Deficiency in Land Sale Contract:
• If Seller is the plaintiff, s/he can enforce the contract only if the defect is minor (unless the seller can cure by closing in a Property cross-over).
• If Buyer is the plaintiff, s/he can enforce even if the defect is major – unless the facts reveal it is so major to constitute an extreme hardship
CONTRACTS REMEDIES: CONSTRUCTION CONTRACTS
o If the owner breaches (does not pay)
o If the builder breaches (non-completion, defective completion)
o Only builder for work done, unless owner pre-paid
Specific Performanceo Only owner, but very difficult because enforcement problems
CONTRACTS REMEDIES: PERSONAL SERVICE CONTRACTS
o If the employer breaches (wrongfully terminates)
o If the employee breaches (wrongfully quits)
o Only employee for services rendered, unless employer pre-paid
Specific Performanceo No: Employment contract
o Yes: Valid covenant not to compete