Remedies

1) The question uses the words remedies;

2) The question uses the word relief;

3) The question states a specific remedy such as specific performance or an injucn

1) Legal Remedies

2) Restitutionary Remedies

3) Equitable Remedies 

The plaintiff must have a great chance of winning the case.

1) Legal remedies -- damages, where plaintiff is ordered to pay money to the plaintiff (compensatory, nominal, punitive)

2) Restitutionary remedies --

A) Legal: restitution, replevin, ejectment;

B) Equitable: -- constructive trust/equitable lien 

3) Equtiable remedy -- Injunctive Relief 

1) Actual Cause;

2) Proximate Cause;

3) Damages cannot be too speculative

4) The plaintiff has to take reasonable steps to mitigate the damages

Past,  Future

More likely than not.

When the losses are non-economic, that is they are pain and suffering damages, the certainty rules do not apply.

When the losses are economic in nature, that is they are to compensate for lost earnings or medical expenses, the certainty rules do apply and the calculation must be with sufficient certainty.

Tort damages must be a lump-sum payment, discounted to present value, and exclude inflation (the modern rule includes it though).

Damages awarded when the plaintiff has no actual injury.

Damages awarded to punish the defendant

1) The plaintiff must first have been awarded compensatory or nominal damages;

2) The defendant's fault muse be greater than negligence;

3) The punitive damage award is relatively proportional to actual damages (usu. single digit multiple)

They are awarded where the defendant was unjustly enriched, and are based on the benefit to the defendant, not the harm to the plaintiff

No, never.

1) Write about both compensatory and restitutionary, and then give plaintiff the larger one;

2) Punitive damages can be assigned to restitution awards in tort only.

1) Plaintiff has a right to possession

2) There is a wrongful withholding by the defendant

**Replevin is an action to recover possession of specific personal property

1) the plaintiff will usually have to post a bond in case he was wrong to compensate the defendant;

2) the defendant can post a redelivery bond in case he was wrong in order to keep the chattel after trial.

1) Plaintiff has a right to possess;

2) There is a wrongful witholding by the defendant

3) The defendant has to be in possesion of the property at the time of the action

Where the defendant has improperly acquired property and has title to the property, the defendant becomes the trustee and must return the property to the plaintiff

Where the defendant has improperly acquired property and has title to the property, the property can be subject to an immediate out of court sale, and the money received would go to the plaintiff.

Note: If the sale price is less than FMV of property, a deficiency is entered against the defendant and the plaintiff can foreclose on defendant's other assets.

The defendant must have title to property.

1) Defendant has title;

2) The legal remedy is inadequate;

3) The plaintiff can trace proceeds from the sale of the property;

4) Bona Fide purchasers will prevail over the plaintiff though.

5) Unsecured creditors will lose to the plaintiff though.

Use the equitable lien when the value of the property has gone down so the plaintiff can get a deficiency judgment.

Use the constructive trust when the value of the property has gone up so the plaintiff can get the property back with increased value.

1) The defendant is insolvent or judgment proof;

2) The property is unique and the plaintiff wants to get it back, but this only makes sense if the plaintiff seeks a constructive trust.

The equitable lien only.

1) Permanent: after a full trial on the merits.

2) Temporary (interlocutory, preliminary, etc.): Issued pending trial on the merits.

1) There is an irreparable injury -- show that the plaintiff will incur irreparable injury while waiting for a full trial on the merits, and **weigh this** against d's hardships by granting injunction.

2) The plaintiff has a likelihood of success at trial -- there is usually a requirement to post a bond

Issued pending a hearing and is used to determine whether a preliminary injunction should issue. 

1) Likelihood of success at trial;

2) Plaintiff must establish irreparable harm if not granted 

The TRO can be heard ex parte, so:

1) No notice is required;

2) Adversarial proceeding is not required.

3) The timeframe is even more urgent than that for a temporary injunction.

10 days in California and 14 days in federal court

1) Inadequate legal remedy (go through replevin, money damages, ejectment);

2) Feasibility of enforcement (the court has to be able to enforce the injunction)

3) Balance of hardships (Plaintiff's benefit v. Defendant's hardship)

4) No equitable defenses (consider unclean hands, laches, impossibility, and first amendment)

1) difficulty of supervision;

2) concern with effectively ensuring compliance

1) There must be a gross disparity between the defendant's detriment and the plaintiff's benefit;

2) The defendant's conduct must not be willful, if it is then there is no balancing;

3) If interests are being balanced, then consider denying the injunction to instead award money damages;

4) Take into account the hardship to the public by granting the injunction

Where the defendant argues that a permanent injunction should not be granted because the plaintiff acted immorally or in bad faith in this lawsuit.

**Note: it is irrelevant how bad of an actor plaintiff is generally, all that matters is how plaintiff acts in this lawsuit.

It is the equitable equivalent of passing of a statute of limitations.

1) Starts at time plaintiff learns of injury

2) The passage of time bars recovery where it is both unreasonable and prejudicial to the defendant.

3) If laches is a defense, consider awarding money damages. 

• 1) Compensatory
• 2) Restitutionary;
• 3) Replevin;
• 4) Mandatory injunction (if the property is unique)
• 5) Constructive Trust/Equitable Lien (to get it back or to get it traced)
• 6) Reasonable force is allowed 

No.

No.

No.

• 1) Causation;
• 2) Forseeability;
• 3) Certainty;
• 4) Mitigation 

Direct damages are an expectation measure and flow inherently from the wrong.

Consequential damages are available for related damages that are forseeable at the time contract formation.

No.

1) When damages are very difficult to ascertain at the time of contract formation;

2) Where the clause is a reasonable forecast of what the damages should be.

No, such a clause is invalid.

Restitution in contract is the same as it is in Torts, it's where there has been a benefit conferred for value that plaintiff aims to recover (non-breaching party, usually).

1) Where the contract is unenforceable?

2) Where the contract has been breached.

Traditional View: No recovery;

Modern View: Recovery is allowed but (a) it cannot be greater than the contract rate; and (b) it's reduced by damages the defendant suffered.

1) Contract is valid and definite;

2) Contract conditions of plaintiff are satisfied;

3) Inadequate Legal remedy

4) Feasibility of Enforcement

5) No Defenses 

The plaintiff has to show that the contract conditions have been fulfilled (e.g. already performed, ready and able to perform, excused from performance).

 

1) If Seller:  Specific enforcement is granted where the defect is minor, but it will not be granted if the defect is major unless seller cures.

2) If Buyer:  Specific enforcement is granted even if the defect is major, but not if it is very major.

**NOTE:  The court will abate the purchase price to take into account a defect in consideration if specific performance is indeed granted.

1) usually a land sale contract;

2) contract contains a time of the essence clause;

3) there is a forfeiture provision that would provide for forfeiture of all performance rendered

4) there is partial performance

5) there has been **a late payment**

6) and the buyer brings an action for specific performance.

1) "Equity abhors forfeiture" so

2) grant specific injunction -- look to size of loss to seller, impact of tardiness, waiver because of previous tardiness, and buyer's hardship.

3) NOTE ON EXAM: the modern trend would award restitution if specific performance was not granted.

1) If it's rare or one-of-a-kind;

2) If it has person significance to the buyer;

3) If the circumstances make the chattel unique, where that is tested at time of litigation.

NO unless they specify that the money damages are to be the only remedy.

1) If the services are unique;

2) If the scope is limited in geography and duration.

Issue:

1) There is a contract involving land that would normally fall within the Statute of Frauds;

2) The contract is an oral one;

3) The defendant raises Statute of Frauds as a defense

Rule:

Where there has been two of any of the three of payment, possession, improvement, and there has been reliance on the contract, the contract is taken OUT OF the statute of frauds and specific performance on it can be granted.

Yes, where (1) there is reliance on the contract; and (2) Where 2 of the 3 are present: (a) possession, (b) part performance, (c) improvements.

Recission is where the original contract is considered voidable and rescinded.

1) Are there grounds for recision?

• a) Mistake
• b) Misrepresentation
• c) Coercion
• d) Undue Influece
• e) Lack of Capacity
• f) Failure of consideration
• g) Illegality

2) Are there any valid defenses?

• a) unclean hands;
• b) laches
• c) negligence won't work 

Recission is not allowed then because that counts as affirmance of the contract

1) Determine if there is a valid contract;

2) Determine if there are grounds for reformation (mutual mistake or misrepresentation)

3) Determine if there are any valid defenses 

1) Compensatory damages (if the seller doesn't convey the deed or the buyer doesn't pay the money)

2) Restitutionary damages (if there has been part performance)

3) Specific performance (remember the fact patterns for "contract conditions are satisfied" such as there is failure to perform because of a deficiency, or failure to adhere to a time of essence clause and subject to forfeiture)

4) Recission

5) Reformation