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  1. How do you spot a remedies question?
    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
  2. What are the 3 kinds of remedies available?
    1) Legal Remedies

    2) Restitutionary Remedies

    3) Equitable Remedies 
  3. It is important to make the the plaintiff _________ when spotting a remedies issue
    The plaintiff must have a great chance of winning the case.
  4. What are the 3 kinds of remedies in a tort situtaion and what are they?
    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 
  5. What are the requirements for a damages remedy in tort?
    1) Actual Cause;

    2) Proximate Cause;

    3) Damages cannot be too speculative

    4) The plaintiff has to take reasonable steps to mitigate the damages
  6. In tort, ______ damages have to be established with more certainty than _________ damages.
    Past,  Future
  7. For future damages, the plaintiff must show that the damages are _____________.
    More likely than not.
  8. When do the certainty rules not apply to a compensatory damages measure?  When do the certainty rules apply to a compensatory damages award?
    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.
  9. What is the one-sentence rule on compensatory damages awards?
    Tort damages must be a lump-sum payment, discounted to present value, and exclude inflation (the modern rule includes it though).
  10. What are nominal damages?
    Damages awarded when the plaintiff has no actual injury.
  11. What are punitive damages?
    Damages awarded to punish the defendant
  12. What are the three rules for getting an award of punitive damages?
    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)
  13. What is the basis for the restitutionary remedies?
    They are awarded where the defendant was unjustly enriched, and are based on the benefit to the defendant, not the harm to the plaintiff
  14. Can a plaintiff be awarded both restitutionary and compensatory damages?
    No, never.
  15. What are two things to watch out for on the bar exam with regard to restitution damages?
    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.
  16. What is required to establish replevin?
    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
  17. What are the timing and bond issues that are associated with a replevin remedy in tort?
    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.
  18. What is required for an action of ejectment?
    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
  19. What is a constructive trust?
    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
  20. What is an equitable lien?
    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.
  21. What must be true for equitable liens and constructive trusts to apply?
    The defendant must have title to property.
  22. What are the rules regarding an equitable lien or a constructive trust?
    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.
  23. When is it better to choose an equitable lien?  A Constructive trust?
    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.
  24. Why would a legal remedy be insufficient in the context of an equitable lien or a charitable trust?
    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.
  25. If a defendant's property cannot be traced solely to the plaintiff's property what remedy is available to the plaintiff?
    The equitable lien only.
  26. When is a permanent injunction levied?  When is a temporary injunction levied?
    1) Permanent: after a full trial on the merits.

    2) Temporary (interlocutory, preliminary, etc.): Issued pending trial on the merits.
  27. What is required to show temporary injunctive relief?
    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
  28. What is a temporary restraining order?  What are the requirements?
    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 
  29. What is the difference between a temporary restraining order and a temporary injunction?
    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.
  30. What is the time limit on a temporary restraining order?
    10 days in California and 14 days in federal court
  31. What is required to create a permanent injunction?
    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)
  32. What are the potential enforcement problems of a mandatory injunction?
    1) difficulty of supervision;

    2) concern with effectively ensuring compliance
  33. What are the rules for balancing hardships in the permanent injunction context?
    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
  34. What is the defense of "unclean hands"?
    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.
  35. What is the defense of laches and what are it's requirements?
    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. 
  36. What remedies are available when the defendant has committed a tort to dispossess the plaintiff's property?
    • 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 
  37. Are compensatory damages available in a simple trespass action?
  38. Are restitutionary damages available on an encroachment tort action?
  39. Are restitutionary damages available in a nuisance action?
  40. What are the requirements for compensatory damages in contract?
    • 1) Causation;
    • 2) Forseeability;
    • 3) Certainty;
    • 4) Mitigation 
  41. When are direct damages available as a contract remedy?  When are consequential damages available?
    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.
  42. Are punitive damages allowed in contract law?
  43. When will a liquidated damages clause be valid?
    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.
  44. Can a person elect to get either liquidated or compensatory damages?
    No, such a clause is invalid.
  45. In what situations is a plaintiff entitled to a restitutionary remedy in contract?
    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.
  46. Can a plaintiff who breaches a contract recover restitution damages?
    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.
  47. What are the five requirements for specific performance on a contract?
    1) Contract is valid and definite;

    2) Contract conditions of plaintiff are satisfied;

    3) Inadequate Legal remedy

    4) Feasibility of Enforcement

    5) No Defenses 
  48. What is required to show the conditions of a contract are satisfied when a plaintiff seeks specific performance?
    The plaintiff has to show that the contract conditions have been fulfilled (e.g. already performed, ready and able to perform, excused from performance).

  49. When showing that a contract condition has not been fulfilled by reason of failure to fully perform on a contract, what must the plaintiff show?
    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.
  50. When showing that a contract condition has not been fulfilled by reason of breach of a "time is of the essence" clause, what must be shown?
    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.
  51. In a situation where a time-of-essence clause is breached, what typically results?
    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.
  52. When is personal property unique (and therefore make a money damages remedy inadequate?)
    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.
  53. Do liquidated damages clause make money damages adequate?
    NO unless they specify that the money damages are to be the only remedy.
  54. When can a covenant not to compete be enforceable?
    1) If the services are unique;

    2) If the scope is limited in geography and duration.
  55. What is the Statute of Frauds/Part Performance problem in granting specific performance in contracts?  What is the rule in that situation?

    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


    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.
  56. When there has been a land contract in violation of statute of frauds, can specific performance 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.
  57. What is recission and what is required to raise it?
    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 
  58. When a plaintiff sues for damages, how does that affect his ability to seek recission as a remedy?
    Recission is not allowed then because that counts as affirmance of the contract
  59. What is required for a valid reformation 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 
  60. What are the available remedies in a real property sale contract?
    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
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