remedy Flashcards
remedies
There are several possible remedies Mary can obtain for the tort of conversion.
The D’s best argument wil probably be unclean hands
Who will likely to prevail
Under these facts, unless the court deems that Mary’s conduct of trying to avoid creditors will bar her under the doctrine of unclean hands, she is likely to prevail. She will most likely seek a constructive trust or restitution for the additional money gained from the sale.
General formurla for expectation damages
if the benefits for a p to contract are ( ) and ( )
General formula for expectation damages is the difference contract price and maeket price plus any incidental damages ,plus any foreseeable consequential damages less any amount saved by non breaching party.
if the benefits for a p to contract are unclear or too speculative,
reliance damages will be awarded
(one way to over come this kind of damagesa is to include a liqudated damages clause that must be reasonable and not punitive)
Her damages are certain because we can place an exact dollar figure on her damages.
Restitution damages
Restitution is a equitable remedy to prevent a party from being unjustly enriched at the expense of another.
The plaintiff may also recover punitive damages
if a defendant …
The plaintiff may also recover punitive damages
if a defendant acts wantonly, willfully or maliciously
1 The punitives must be proprotional to the actual damages,
2 the conduct must be more than negligent
Generally punitive damages are not awarded for breach of contract action
Here, there is nothing to suggest that D dumped the trees willfully and with intent to harm P,
RESCISSION!
Rescission of a contract is an equitable remedy.
If the contract here is rescinded
A would receive purchase price while C would be put back in possesion of the house.
Rescission cancels the contract where it result from mistake,fraud, or duress or where the K is materially breached.
compensatory damages
compensatory damages (reliance damages actual damages) compensatory damages are payed for the victim’s damages that are reasonably certain and foreseeable.
nominal damages
Are awarded where plaintiff has no actual injury. Cf trespass to land
expactation damages short
The G constitutes the breach of the contract. Therefore the C is entitled to be placed in the position he would have been in but for D’s breach. expectation damages must be certain, foreseeable, and mitigated
. It is usually measured by the difference between the contract price and the market price (it is usually measured by the difference between the value of the good as accepted and the value of the good if it had been as warrantied.) Consequential damages are those damages specific to the P that were foreseeable at the time the contract was entered.
incidental damages
Incidental Damages are incidental to the breach of the contract Cf cost to return goods Those related to avoiding the loss from the breach
iyakukin
Liquidated damages Liquidated damages is valid a long a the amount appears to e reasonable in light of the seller’s anticipated and actual damages/ Many courts will uphold the retention of deposit of 10 p of the sale price or less wihout inquiry to its reasonableness. The facts indicate that the sale price was … therefore the P did not have actual damages because she can sell if for $10000 more, Thus she will not be able to enforce a liquidated damages clause in any higher amount
replevin
Replevin is legal restitutionary remedy That allow the recovery of specific personal property before the trial In order to prevent D’s unjust enrichment
To claim Replevin the P must show
1) P has a right to possession
2) there is a wrongful withholding by D
The sheriff could seize it for replevin but it may be difficult to find so specific performance is a superior remedy.
Ejectment is
Ejectment is legal restitutionary remedy (not equitable!!)
that allow the recovery of specific real property wrongfully taken
in order to prevent D’s unjust enrichment
To claim Ejectment The P must show
1) The P has a right to possession
2) there is a wrongful withholding by D
what is the condition to seek equitable remedy?
EQUITABLE —Don’t forget refer to the legal remedy is inadequate
to claim specific performance the plaintiff must show
tips mutuality はいずれ不要とするので入れていないケースも＊時間の点からはこちらを選択
To claim specific performance, the plaintiff must show
(1) there is a valid contract , with clear and definite terms
(2) conditions on plaintiff must be satisfied
(3) the legal remedies are inadequate,
* the property is unique and damages is speculative*
(4) feasible to enforce,
* Ordering behavior may be more difficult if the D is in another jurisdition.here that doesn;t seek to be the case.*
* The court can order S to perform his contract obligation and if fails to do so the court can hold him in contempt*
(5) no defense. (Cha Cha Is Favorite Dance)
* It is not clear whether the parcel is in the same state as the court but, in any event, t*he court has personal jurisdiction over Steve and can require him to convey the property to Belle. Thus, enforcement is feasible.
In what kind of case enforcement is feasible? A court enforce
A court enforce orders of specific performance through its contempt power so the court must have jurisdiction over either the property or the person
bwhat is the different between equitable lien and constractive trust
Equitable lien is generally most useful when the property of another has been used to improve some other property or
where the property has decreased in value and the owner of the property is seeking a deficeincy judgement
Consructive trust will allow a person to recover any increase in value of the property
Constructive trust tips
if the property wrongfully acquired is money
seeking damages is not reasonable option >>>
Don’t forget restitution
(at conversion, the amount of damages is the market value of the item that was converted )
Constructive trust
A court can impose a constructive trust on D
constructive trust is equitable restitutionary remedy
to prevent unjust enrichment
when
1) legal remedy is inadequate ,
2) the defendant wrongfully acquired the property of another.
( or property solely traceble from the property).
D is required to act as Trustee for the P as beneficiary.
Although it will not defeat a bona fide purchaser
The plaintiff can trace the property to another form, as long as the trust res can be identified. Additionally, the plaintiff is entitled to any increase in value in the property to avoid unjust enrichment to the defendant. Where the property has been commingled with other funds and withdrawals have reduced the account’s balance below the plaintiff’s claim, the plaintiff is entitled to the next lowest intermediate balance.
- 1) legal remedy is inadequate the ring is sold ,so replevin is unavailable 2) property must be solely traceable to current form 3) when the wrong doer commingles wrongfully obtained funds with his own fund in single account lowest intermediate balance rule applies. Presume D spent his own money first so the $600 was from the ring,(but the other 2400 was added later and cannnot be traced to the ring”*
https: //cw-cpa.com/how-does-the-lowest-intermediate-balance-rule-for-tracing-work/
The court may impose…
the court may impose an equitable lien(security interest ) in hte property which must be sold and the proceeds returned to the P. if the sale results in less mony than is owed, the P may get a defidiency judgment and a lien on the D’s other property to secure that judgment
However the P may not recover any enhanced value in the property.
Equitable lien is equitable restitutionary remedy to prevent unjust enrichmment
Tracing may used to ensure return of the property.
If the proceeds of the sale are less than is owed
the P may get a deficiency judgment will issue and a lien on the D’s other property to secure that judgment.
However the P may not recover rany enhanced value in the property.
A court can put purchase money resulting trust when
A court can put purchase money resulting trust when one party purchases property
Trust. A purchase money resulting trust occurs when one party purchases property, but another party supplies the consideration. The other party must have supplied consideration before the purchasing party obtains title.
In such a situation, the court imposes a resulting trust on the purchasing party, construing her as a trustee holding the property in trust for the beneficiary, which is the party who supplied consideration(出資した人が受益者として守られる）
injunction
contract specific performance
tort injunction
injunction is an equitable remedy
that orders defendant to do or refrain from doing something.
It requires that
1) legal remedy is inadequate,
2) that there is protectable interest
3) feasibility of enforcing of the injunction
4) the hardship to defendant does not outweigh the benefit of granting of the injunction .
( I Put Five Bucks)
negative injunction is easier to enforce the courts has power to order contempt for noncompliance jurisdiction
Preliminary injunction
is an order imposed by the court requiring or forbidding non moving party to take an action an injunction to maintain status quo until a trial can be held
To obtain the order P must prove
she wil likely succeed on the merits of her case,
imminent irreparable harm
the hardship to defendant does not outweigh the benefit of granting of the injunction .(bucks)
bA temporary restraining order is
Tips :
write TRO first !
then you can right in the clause of preliminary injunction
For the same reasons described above, the court would grant Belle a PI pending trial.
NODEFENSE Don’t write about defense. because it would be exparte process.
The court does not analyze the parties defenses when granting a TRO.
A temporary restraining order (“TRO”)
is an order from the court requiring, or forbidding, the nonmoving party to take an action,
while the nonmoving party seeks a preliminary injunction.
The court may require themoving party to post a bond
To obtain a TRO, a plaintiff must show ( almost the same as preliminary injunction)
For the same reasons described above, the court would grant Belle a PI pending trial.
A TRO will only expire after 14 days, unless it is extended for another 14 days
A plaintiff may seek a TRO ex parte - that is, without notice to the nonmoving party - if, in addition to showing a likelihood of irreparable harm, the plaintiff shows a strong showing for why notice could not be practically provided
reformation is
reformation is an equitable remedy to change the contract into the actual agreement of the parties. This is often applies to a clarical error.
