Term
| What are the 3 types of remedies in order they should be discussed on an essay? |
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Definition
1) Legal
2) Restitutionary (Legal, then Equitable)
3) Equitable |
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Term
| Basic definition of compensatory damages in tort |
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Definition
| Plaintiff is entitled to compensator damages to put her in the position she would have been in had the wrong and resulting injury not occurred |
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Term
| 4 requirements for compensatory damages in tort |
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Definition
1) causation - actual (but-for)
2) foreseeability - proximate causation, injury foreseeable @ time of tortious act
3) certainty - damages cannot be too speculative
[past > future, hitsorical records can help]
4) unavoidability (P must take reasonable steps to mitigate) |
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Term
| What is the "all or nothing" rule for a plaintiff to recover future compensatory damages in tort? |
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Definition
| Test under certainty (damages not speculative) - the plaintiff must show that the damages are more likely to happen than not |
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Term
| For economic losses under compensatory damages in personal injury torts, the calculation must be performed with: |
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Definition
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Term
| For general damages in personal injury tort (pain and suffering, permanent disfigurement), jury may award |
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Definition
| any amount it wishes, subject to proper instructions |
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Term
| Rule for how a judgment must be paid for compensatory damages in tort |
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Definition
"The judgment must be
1) in a single lump sum payment
2) that will be discounted to present value
3) without taking inflation into account (except under the modern rule)" |
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Term
| What are 3 kinds of damages (under legal remedies) in tort? |
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Definition
| Compensatory, Nominal, and Punitive |
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Term
| What are nominal damages in tort? |
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Definition
| They are awarded where P has no actual injury. They serve to establish or to vindicate the P's rights. |
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Term
| What is the basic concept of punitive damages in tort? |
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Definition
| They are awarded to punish the defendant |
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Term
| What are the 2 conditions necessary to get punitive damages in tort? |
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Definition
1) Plaintiff must have first been awarded compensatory or nominal damages
2) defendant's type of fault must be greater than mere ordinary negligence |
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Term
| The amount of punitive damages awarded in tort |
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Definition
| The amount of punitive damages awarded in tort is proportionate to actual damages (limited to a single digit multiple, unless conduct of defendant is extreme under the facts) |
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Term
| What is the basic concept of "legal" restitutionary remedies in tort? |
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Definition
They are based on the benefit to the defendant.
The amount calculated is based on the value of the benefit to the defendant (what did the D unjustly gain?)
(Unlike compensatory damages, which focus on injury to the plaintiff) |
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Term
| Can P be awarded both compensatory and restitutionary damages in tort? |
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Definition
No - write about both and give P the higher award
NOTE: punitive damages CAN be attached to restitutionary damages, as long as the underlying cause of action is in tort |
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Term
| What is the basic concept of the "legal" restitutionary remedy of replevin? |
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Definition
| Plaintiff recovers possession of specific personal property |
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Term
| What is the 2 part test for replevin? |
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Definition
1) Establish that plaintiff has a right to possession
2) Establish that there is a wrongful withholding by defendant |
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Term
| How and when can P recover chattel under replevin (timing and process) |
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Definition
P can recover before the trial
P will have to post a bond, BUT D can defeat by posting a redelivery bond |
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Term
| Replevin is almost always coupled with... |
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Definition
| damages (compensatory or restitutionary) for lost use or benefit to the defendant during the time of detention |
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Term
| What is the 2 part test for ejectment? |
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Definition
P must establish that
1) he has a right to possession
2) there is a wrongful withholding by D
(same as replevin) |
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Term
| Ejectment is almost always coupled with... |
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Definition
| damages (compensatory or restitutionary) for lost use or benefit to defendant during time of wrongful witholding |
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Term
| Constructive trusts and equitable liens can only be used when.... |
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Definition
| defendant has title to property |
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Term
| Definition of constructive trust |
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Definition
| A constructive trust is imposed on improperly acquired property to which the defendant has title, and there has been unjust enrichment. The defendant serves as "trustee" and must return the property to the plaintiff |
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Term
| Definition of equitable lien |
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Definition
| An equitable lien is imposed on improperly acquired property to which the defendant has acquired title, and there has been unjust enrichment. The property will be subject to an immediate court-directed sale, and 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 the defendant's other assets. |
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Term
| Four rules of constructive trusts and equitable liens |
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Definition
1) there is an inadequate legal remedy alternative (money damages) because (a) D is insolvent, or (b) for constructive trusts, the property is unique
2) tracing is allowed
3) BFPs prevail over plaintiff
4) Plaintiff will prevail over unsecured creditors |
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Term
| How to choose between remedy of constructive trust and equitable lien? |
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Definition
1) If the property value subsequent to taking goes UP, go with constructive trust.
2) If the property value subsequent to the taking goes DOWN, go with an equitable lien
3) When defendant has improved property with other property besides plaintiff's property (e.g., musing embezzled money to remodel kitchen), ONLY an equitable lien is available. |
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Term
| Difference in timing between permanent injunction and temporary injunction |
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Definition
Permanent injunction - issued after a full trial on the merits
Temporary / preliminary injunction - issued pending a trial on the merits |
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Term
| To obtain preliminary injunctive relief P must meet a 2 part test: |
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Definition
1) plaintiff has to establish irreparable injury in which he needs relief now (discuss in time frame context)
2) establish likelihood of success (discuss the "probability". The court should impose a bond requirement on the plaintiff to reimburse the defendant if the injunction against him does not succeed |
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Term
| A Temporary Restraining Order is issued... |
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Definition
| pending a hearing to determine whether preliminary injunction should issue. It may be issued ex parte, and notice or an adversarial proceeding is not required |
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Term
| What is the 5 part test for permenant injunction? |
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Definition
IPFBD - I'll Put Five Bucks Down
1) Inadequate legal remedy alternative (no replevin/ejectment/money dmgs)
2) property right / protectable interest - traditional rule, modern rule
3) feasibility of enforcement - mandatory (NOT negative) -> difficulty of supervision, concern w/ effectively insuring compliance (non-resident denied)
4) balancing of hardships - gross disparity b/t detriment & benefit, no balancing if willful, hardship to public
5) defenses - unclean hands, laches, impossibility, free speech |
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Term
| Permanent injunction - 1) why would legal remedies be inadequate? |
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Definition
1) Replevin - Sheriff can not find or recover chattel, defendant can file re-delivery bond and run off / destroy chattel
2) Ejectment - Sheriff may refuse to eject
3) Money damages - too speculative, defendant is insolvent, irreparable injury, there have been a multiplicity of actions (prior history of litigation between two parties) |
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Term
| Permanent injunction - 2) property right - traditional and modern rule |
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Definition
Traditional rule - equity will grant relief only where a protectable property right is involved
Modern view - you don't need a property right, any protectable interest will suffice |
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Term
| Permanent injunction - 3) feasibility of enforcement |
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Definition
Negative injunctions - when you are trying to stop the plaintiff from doing something, there is no enforcement problem
Mandatory injunctions - when you want the plaintiff to affirmatively do something, there may be an enforcement problem due to:
1) difficulty of supervision (important)
2) concern with effectively ensuring compliance |
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Term
| Permanent injunction - 4) balancing of hardship |
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Definition
Majority view: if harm to P outweighs harm to D, court will grant injunction. Otherwise, court will limit plaintiff to damages, UNLESS defendant's conduct was intentional or there is hardship to the public.
Strict (minority) view: no balancing of harships |
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Term
| General framework of discussion of balancing hardships with respect to hardship to public |
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Definition
1) discuss the defendants' hardship
2) discuss the public hardship
3) deny the injunction
4) award the plaintiff money damages |
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Term
| Permanent injunction - 5) defenses |
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Definition
| Unclean hands, laches, impossible for defendant to carry out terms of injunction, free speech |
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Term
| Permanent injunction - unclean hands defense |
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Definition
| The party seeking equitable relief must not be guilty of any "unfair dealing" related to the the transaction sued upon (the lawsuit!) |
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Term
| What is the defense of laches? When do laches begin to run? |
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Definition
That there was an unreasonable delay by P in initiating his equitable claim that resulted in prejudice to the D.
Laches run from the time P had knowledge that one of his rights has been infringed |
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Term
| Injunctive relief is almost always coupled with ______________. |
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Definition
| damages for injuries incurred in the time period prior to obtaining the injuncton |
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Term
| Rule for third parties being bound to injunction |
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Definition
| The third party must be acting "in concert" and with notice. This means that a t-shirt vendor selling counterfeit t-shirts who knows there is an injunction against the manufacturer is acting "in concert" with notice |
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Term
| Bar exam compensatory damages language (tort) |
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Definition
| "Plaintiff is entitled to compensatory damages to put her in the position she would have been in had this wrong and resulting injury not occurred. On these facts, ... |
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Term
| Set of tort fact pattern questions to ask self regarding type of injury |
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Definition
1) has / is the plaintiff been / being injured? (compensatory damages)
2) has defendant derived a benefit (restitution - unjust enrichment)
3) does plaintiff want property returned (replevin, ejectment, constructive trust)
4) does plaintiff need an injunction (ongoing immediate harm) |
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Term
| Set of tort fact pattern questions to ask regarding timing of injury |
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Definition
1) do wrongs relate to past only (damages - compensatory, restitution)
2) do wrongs relate to future only (replevin, ejectment, injunctive relief)
3) do wrongs relate to both past and future? |
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Term
| 3 types of personal property torts and types of damage for each |
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Definition
1) Destroyed property - compensatory damages
2) Damaged property - compensatory damages
3) Dispossession - wrongful taking or witholding
a) compensatory damages
b) restitutionary damages
c) replevin
d) mandatory injunction - if chattel unique and replevin won't work
e) constructive trust / equitable lien - defendant insolvent, tracing facts
f) self-help - reasonable force to recapture |
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Term
| What are the 4 requirements for compensatory damages in contract? |
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Definition
Causation
Foreseeability (tested at time of formation)
Certainty (no future profits of business)
Mitigation
NOTE: basically same as torts |
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Term
| Two types of compensatory damages |
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Definition
Direct - flowing inherently from the wrong
Consequential - damages that were foreseeable at the time of formation |
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Term
| Types of legal remedies in tort |
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Definition
1) Compensatory damages (direct, consequential)
2) Nominal damages - allowed
3) Punitive - not allowed like in tort (but check to see if there are tort elements) |
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Term
| What is the 2 part test for validity of liquidated damages |
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Definition
1) Damages are very difficult to ascertain at time of contract formation
2) there was a reasonable forecast of what the damages should be (not a penalty)
If valid, ONLY liquidated damages are available
If invalid, ONLY actual damages are available |
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Term
| What is the basic bar exam restitutionary "contract" fact pattern? |
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Definition
The contract "fails" after plaintiff has rendered performance (partial or complete). The 2 ways this happen are
1) the contract is unenforceable
2) the contract is breached |
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Term
| Rule for damages in unenforceable contracts when plaintiff is non-breaching party vs breaching party (restitution) |
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Definition
Unenforceable due to: mistake, lack of capacity, illegality, and fraud.
Non-breaching party:
1) plaintiff can get restitutionary damages for property or money given to, or services rendered for, the defendant
2) plaintiff can get property back if it is unique or D is insolvent
Breaching party: modern view is that recovery is allowed, but
a) cannot be greater than contract rate
b) recovery is reduced by damages suffered by the defendant as a result of the breach |
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Term
| If P is the breaching party, can they get restitutionary damages (traditional and modern view) |
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Definition
Traditional view - no recovery
Modern view - recovery allowed (but cannot be greater than contract rate, and is reduced by and damages suffered by D as a result of the breach) |
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Term
| What is the 6 part test for specific performance in contract? |
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Definition
Cha Cha Is My Favorite Dance
1) Contract is valid - certain and definite terms
2) P has fulfilled her Conditions / terms (already performed, ready and able to perform, excused from performing)
3) Inadequate legal remedy alternative (money damages speculative / D insolvent / multiple suits / thing bargained for is unique [LAND, not personal property unless rare or personal]
4) Mutuality of remedy - P cannot enforce against me b/c I could not enforce against him
5) Feasibilty of enforcement (no personal services, covenants not to compete OK if unique + reasonable scope)
6) Defenses (equitable: unclean hands, laches, unconscionabilty @ time of formation | contract: mistake, misrepresentation, SoF |
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Term
| Contracts - specific performance - 1) contract is valid |
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Definition
| plaintiff must show that the contract terms with more CERTAINTY and DEFINITENESS than would be the case for money damages at law |
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Term
| Contracts - specific performance - 2) contract conditions of plaintiff must be satisfied |
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Definition
| plaintiff must show that her contract conditions have been fulfilled (already performed, ready and able to perform, or excused from peformance) |
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Term
| In a land sale contract and the seller is plaintiff, the seller can... |
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Definition
| enforce the contract if the defect is minor, but NOT enforce it if the defect is major (unless defect could be cured by closing) |
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Term
| In a land sale contract where buyer is plaintiff, the buyer can... |
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Definition
| enforce the contract even if the defect is major, but NOT enforce the contract if the deal is minor |
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Term
| Contracts - specific performance - if SP is granted in land sale contract and defect still remains, what happens to purchase price? |
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Definition
| Court will lower the purchase price to take into account this defect in consideration |
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Term
| What 4 factors can court look at to avoid forfeiture in a land sale contract with a time is of the essence clause (buyer has made late payment)? |
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Definition
Loss to seller is small
Tardiness is de minimis
Waiver (seller has accepted late payments in the past)
Buyer would suffer undue hardship |
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Term
| Contracts - specific performance - 3) Inadequate legal remedy alternative |
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Definition
Money damages are inadequate if:
1) damages are specultative
2) defendant can't pay because he is insolvent
3) multiple suits are necessary
4) the thing bargained for is unique
NOTE: even if there are liquidated damages, can still be inadequate legal damages UNLESS contract provides that LD is "only remedy" |
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Term
| How to determine if property is unique |
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Definition
Real property - land is unique, even if it is identical!
Personal property - generally not unique, except for
1) one of a kind or rare item
2) personal significance to buyer
3) circumstances make chattel unique (shortage, must be at time of litigation) |
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Term
| Contracts - specific performance - 4) Mutuality of remedy |
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Definition
Defendant will argue: plaintiff should not be able to enforce K against me because I could not enforce it against him
Rule: court will REJECT mutuality argument if it feels secure that the plaintiff can and will perform. Specific performance will be granted with a court decree for simultaneous performance. |
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Term
| Contracts - specific performance - 5) Feasibility of enforcement |
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Definition
Personal services contracts - never feasible to enforce
Covenants not to compete - feasible to enforce if
1) services are unique
2) the scope (geographic and duration) of services is reasonable) |
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Term
Contracts - specific performance - 6) Action must not be blocked by any defense
Equitable defenses?
Contract defenses? |
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Definition
Equitable:
Unclean hands
Laches
Unconscionability
Contract defenses:
Mistake
Misrepresentation
Statute of Frauds |
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Term
| In a land sale contract, if there is a time of the essence clause and a forfeiture provision, and there has been partial performance (e.g., late payment), what happens? |
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Definition
| Seller will want to keep both the land and any performance rendered (the down payment / late payment). Evaluate whether forfeiture wil stand (equity abhors forfeiture) |
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Term
| If there is a Statute of Frauds problem involving part performance of contract for sale of land (oral K for land) - when will SoF be granted? |
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Definition
If one has rendered
valuable part performance
[2 of payment / possession /
valuable improvements / valuable services]
in reliance on the contract
this will take the case out of the SoF and specific performance will be granted |
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Term
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Definition
Rescission cancels the contract where it results from mistake, fraud, or duress, or where the contract is materially breached. It can be legal (by action of the parties) or equitable (by court decree).
Legal - plaintiff gives prompt notice and tenders back anything received under the contract
Equitable rescission - court intervention is necessary |
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Term
| What are the 7 general grounds for rescission of a contract? What do they all relate to? |
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Definition
all relate to K formation
mistake
misrepresentation
coercion
undue influence
lack of capacity
failure of consideration
illegality
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Term
| Defenses for contract rescission |
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Definition
Unclean hands and laches
NOTE: If plaintiff sues for damages first, rescission is NOT allowed because K has been affirmed. If P sues for Rescission firstl damages are allowed. Restitution is available |
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Term
| Rescission for mutual mistake will be granted if it is regarding a _________ rather than a ________ fact |
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Definition
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Term
| Rule for rescission for a unilateral mistake |
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Definition
Rescission for a unilateral mistake will be denied unless the non-mistaken party knows or should have known of the mistake
Ex: subcontractor bid that is so low that contractor should know |
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Term
| In order to get rescission of contract based on misprepresentation grounds, the P must show that they have ____________. |
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Definition
actually relied on the misrepresentation
(similar to fraud) |
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Term
| If Plaintiff sues for damages first, rescission of the K is (allowed / not allowed) |
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Definition
| not allowed - affirmance of the K has occurred |
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Term
| To determine if you can have reformation, see if you have a Good Dog |
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Definition
Grounds for Reformation
Defenses |
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Term
| Definition of reformation |
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Definition
| Reformation is an equitable remedy for modifying a written instrument to reflect the parties' true agreement |
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Term
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Definition
Very Good Dog
Valid contract
grounds for reformation
valid defenses |
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Term
| Reformation - rule for mutual mistakes and unilateral mistakes |
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Definition
| Reformation is granted for mutual mistakes, but is not granted for unilateral mistakes UNLESS the non-mistaken party knows of the mistake (e.g., fraud) |
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Term
| Reformation - rule for misrepresentation |
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Definition
| Reformation is granted for misrepresentation |
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Term
| Remedies for simple trespass (real property) |
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Definition
Nominal damages
Restitionary damages
Injunction (want to avoid multiplicity of actions) |
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Term
| Remedies for destruction / damage of realty (real property) |
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Definition
Compensatory damages
Injunction |
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Term
| Remedies for encroachment (real property) |
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Definition
Compensatory damages
Injunction - probably emphasize balancing of hardships
a) discuss defendant's hardship
b) discuss public hardship
c) deny the injunction
d) award the plaintiff money damages
NOTE: NO restition |
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Term
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Definition
Compensatory damages
Injunction (probably emphasize balancing of harships)
Note: NO restitution |
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Term
| Remedies for personal injury tort |
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Definition
1) Compensatory
a) economic losses / special damages - must be certain
b) non-economic losses / general damages (pain and suffering) - do not have to be certain
c) lump sum payments - discounted to present value, inflation NOT taken into account
2) injunction - only against prospective intentional tortious conduct |
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Term
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Definition
1) damages (compensatory, restitionary)
2) constructive trust / equitable lien
3) maybe punitive damages
NOTE: see if situation can also be analyzed as contracts case |
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Term
| Rule for quasi-contract rights |
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Definition
| Quasi-contract is a legal restitionary remedy that awards plaintiff that sum of money measured by the reasonable value of defendant's ill gotten gain from an unenforceable on non-existing contract (contract should have been formed, but it was not) |
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Term
| constructive trust / equitable lien - rule for tracing |
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Definition
| Where funds have been commingled with other funds, victim may obtain a constructive trust / equitable lien to the extent of the lowest intermediate balance |
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Term
| Contracts - anticipatory repudiation |
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Definition
Anticipatory repudation occurs when words or conduct of the promisor unequivocally indicate that she cannot or will not perform on the contract. This entitles the non-breaching party to
1) treat the anticipatory repudation as a breach and sue
2) suspend performance and wait to sue on the date of performance
3) treat the repudation as a rescission
4) ignore the repudation and urge the promisor to perform |
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