Equity

Injunctive relief against tortious conduct, specific performance, rescission, and reformation.

No. It is discretionary with the court.

No.

No.

When there is no adequate remedy at law.

The person.

No. The court must have the power to force compliance and must be able to determine whether there has been compliance.

As a general rule. Some courts require only a protectible interest.

By granting an injunction.

The defendant either to cease doing (negative injunction) or commence performing (mandatory injunction) a certain act.

Yes.

By holding the noncomplying party in contempt.

Mandatory or negative, interlocutory or permanent.

• Is the legal remedy inadequate?
• Is there a property right or protectible interest involved?
• Is enforcement feasible, practicable, and effective to vindicate the right?
• Are the hardships balanced?
• Does the defendant have any defenses?

They are aimed at maintaining the status quo until trial on the merits, but do not resolve any permanent rights between the parties.

Only after a full hearing on the merits. They are binding on the parties.

Until it has been vacated, modified, or set aside; it may not be ignored even if erroneous, unless the court was totally without jurisdiction.

Consider the baance of hardships. Injunctive relief against nuisance will generally be granted only against a private nuisance; an individual will not have the right to enjoin a public nuisance unless he can show that he has standing to sue, e.g., a special injury.

Consider the balance of ahrdships. Injunctive relief is proper where the trespass is continuous.

If waste exists, is it destructive, permissive, or ameliorative? Generally, equity will not grant injunstice relief in ameliorative waste situations.

These torts involve interference with an owner's interest in a chattel. Injunctive relief is proper where th einterference is continuous or the converted chattel is unique.

Look for the existence of a property right, but remember that equity courts are hesitant to enjoin mere libel or slander because of free speech rights.

At common law, no injunction would issue against invasion of privacy, since privacy was construed as a purely personal right. In New york, the courts have uniformly held that there is no cause of action for invasion of privacy apart from the Civil Rights Law (exception for implied promise of confidentiality made by a physician to a patient).

This may be a (i) wrongfuly instituted suit or (ii) wrongfully obtained judgment. Regarding the first type of abuse, recall that the court can enjoin the litigants, not the other court. As to a wrongfully obtained judgment, only extrinsic (not intrinsic) fraud is sufficient for equitable relief against enforcement of the judgment.

Remember equity courts are more likely to enjoin trade libel than "personal" defamation.

An injunction is generally proper when a defendant encourages someone to breach a contract with, or refuses to do business with, defendant's competitor.

When his attempt to induce third parties in their relationship with someone is privileged. In determining whether a privilege exists, the courts will consider the following: (i) What kind of relationship is defendant's conduct affecting? (That is, inducing someone to breach a contract is worse that inducing a refusal to deal.); (ii) What is the nature of defendant's conduct? (The "softer" the method of inducement, the more likely it is privileged.); (iii) What is the relationship between parties? If defendant is a competitor of plaintiff, he may have a privilege to induce a refusal to deal, but this privilege is usually not extended to cover inducements to breach a contract? What is the relationship to the third party being induced? If defendant has responsibility for the third party or a financial interest in the third party, or the third party sought his advice, there is likely a privilege; (iv) What are defendant's motives?; and (v) What social interests might be advanced?

A trade secret will be protected by the courts.

A trade secret is information not readily available that gives its possessor a competitive advantage.

Was the document stolen or memorized? Was the taking accomplished by improper conduct? Courts are more likely to issue an injunction if the information was wrongfully obtained?

Yes. Express covenants not to disclose trade secrets are always specifically enforceable. Howeer, an express contractual covenant is not required in seeking an injunction against disclosure of trade secrets.

Both the wrongful taker and/or the person who intends to use the trade secret can be enjoined.

The theories for liability include (i) violation of a property right in the trade secret, (ii) breach of fiduciary relationship, and (iii) breach of contract.

Yes.

• Generic terms;
• Descriptive terms;
• Geographic designations; and
• Personal names.

When there is a pulic likelihood of confusion as to the source of the goods (this is a question of fact. Look to similarity of: marks, goods, geographical marketplaces, types of marketplaces, customers, and price. Also consider the intention of the "second infringing" mark's proprietor.

Likelihood of confusion.

No.

Yes.

A trade name identifies the source of goods, services, and businesses.

There must be a secondary meaning present and the infringing name must be so similar as to be likely to cause confusion. (Analysis is essentially the same as for trademarks.)

Injunctive relief is not available for copyright infringement absent compliance with the federal statute. But state common law remedies still apply (i) for works not fixed in a tangible medium of expression, or (ii) where the rights involved are not equivalent to copyright.

The common law protects the invention's first introduction to the public. Further protection can be had only by compliance with federal law. (Analysis is roughly similar to copyright protection.)

There is no protection against imitation of one's products unless there is patent protection. Exceptons to the rule exist where there is (i) deception or (ii) improper taking.

State courts have a limited right to protect ideas not protected by federal patent and copyright law. Exceptions to the rule exist where there is (i) deception or (ii) improper taking.

Generally, yes.

Money damages, replevin, or ejectment.

• Damages are speculative;
• Defendant is insolvent;
• The injury is irreparable;
• A multiplicity of actions might be necessary; or
• Plaintiff has no right to damages (e.g., the tort is only prospective.

If defendant could put up a replevin bond for a unique chattel or if there has been change in the chattel (so that the sheriff would not be able to identify it).

The sheriff refuses to act.

Yes, so long as there is a "protectable" interest, which is something less than a property right (e.g., a right of privacy action).

A negative injunction is easier because no supervision is required. The recent trend is to be more liberal in giving mandatory injunctions.

In these cases, look to the complexity of the act to be performed and whether continuous acts are required. Remember, a court may avoid the problem by couching the decree's terms negatively.

No. The court is more likely to grant injunctions if the defendant is a resident of the court's jurisdiction. The court is hesitant to grant a mandatory injunction in these cases, but will still do so under proepr circumstances.

Weigh the benefit to the plaintiff if the injunction is granted against the hardship to defendant that would result from the injunction. If the benefit to plaintiff is greatly outweighed by the burden on defendant, the court generally will not issue an injunction. Also, consider the defendant's behavior: A willful defendant generally will not profit from this rule. Neither will a defendant who has proceded against the plaintiff's assertion of rights.

Yes.

Both standard tort defenses and equitable defenses may be available to the defendant.

• Unclean hands;
• Laches;
• Estoppel; and
• Defenses of Impossibility, Hardship, and Freedom of Speech

When the improper conduct relates to the same transaction involved in the litigation.

If plaintiff has unreasonably delayed in bringing an action and the delay is prejudicial to defendant.

When plaintiff has knowledge that a right has been infringed. Laches may serve as an earlier time bar than the statute of limitations; howeer, laches cannot be longer than the statute of limitations.

If one party acts wrongfully or negligently and thereby induces reliance by another who is entitled to rely and who changes his position to his detriment.

In appropriate circumstances.

To preserve the status quo between the parties until full trial on the merits can be held.

• Irreparable injury if a preliminary injunction is not granted; and
• The likelihood of prevailing at the later trial.

Yes.

Yes, to indemnify the defendant for damages if it is finally determined that the plaintiff was not entitled to the injunction.

Damages are generally limited to the amount of the bond.

In drastic circumstances.

Less formal notice is required; indeed, it may be granted without notice if the moving party makes a strong showing why notice should not be required.

At the earliest possible date.

Generally no, on constitutional grounds, as it would deprive defendant of the right to a trial by jury. But consider whether the crime is also a tort which may be enjoined.

Generally no, because of legal remedies, e.g., when mandamus is ufficient. But consider whether the conduct endangering the political right is also tortious and, thus, subject to relief.

The supreme court may enjoin distribution of bscene materials. Such actions are to be brought by the district attorney.

A remedy that orders one party to a contract to perform according to the terms of the contract.

• A contract exists;
• All contractual conditions have been fulfiled;
• The legal remedy is inadequate;
• Mutuality of remedy exists;
• Enforcement is feasible; and
• There are no defenses available to defendant.

Yes. In fact, equity requires the contract terms to be somewhat more certain than would a court in an action at law, although parol evidence may be used to make the contract more certain. The contract must be supported by consideration. Generally, equity courts will not examine the sufficiency of consideration unless it is unconscionable.

No.

A time of the essense clause requires one party to perform within a stipulated period of time. As a general rule, when the party does not perform within the stated period, his contractual rights are void.

Yes.

Yes.

No, a court will be likely to avoid the effect of the clause if (i) loss to the other party is small; (ii) the forfeiting party would suffer undue hardship; (iii) tardiness is "de minimis"; or (iv) seller has performed acts giving rise to a waiver situation.

Also look to see if judicial sale might be appropriate in a given case.

Yes.

Yes, but he will be unable to get specific performance if hte deficiency is very large.

Yes.

• The thing bargained for is rare or unique; or
• Money damages are inadequate.

Yes. Thus, both the buyer and seller of land can get specific performance.

When it is (i) unique in kind, (ii) of personal significance to the buyer (using a reasonable person test), or (iii) in short supply. If so, specific performance is avaialble. If not, money damages are adequate.

No, money damages are adequate.

Perhaps, but equity will not force a person to provide personal services to another, because of "involuntary servitude" problems and the difficulty of enforcement.

However, the defendant can be prevented from working for someone else by enforcement of a negative contract.

When damages are speculative, the defendant is insolvent, or multiple suits would be necessary.

Negative mutuality involves the argument that plaintiffs should be allowed to enforce the contract because defendant would not be able to.

When both parties are capable of performing and counterpeformance may be sufficiently secured.

Affirmative mutuality involves the argument that plaintiff should be allowed to enforce the contract because defendant would have been able to. Its only relevance today is to land sale contracts (i.e., the seller can get specific performance because the buyer could).

• Can the court supervise protracted performance and derive a standard to judge performance; and
• Can the court reach the defendant onr the res and effectively compel performance?

Generally, no.

Yes.

Yes, unless the seller brings the action and only he and the res are before the court.

• Standard contract defenses;
• Misrepresentation;
• Mistake; and
• Equitable defenses.

These include, e.g., the Statute of Frauds, inadequate consideration, misrepresentation, impossibility, and mistake. The most important here is the Statute of Frauds and the exception to its application, the past performance doctrine.

An oral contract for the sale of land may be enforced if there is part performance such that the parties cannot be placed in the status quo ante.

Actions sufficient to take the contract out of the Statute of Frauds include: (i) possession of the land by buyer coupled with valuable improvements or payment or (ii) performance of the land by buyer coupled with valuable improvements.

Insufficient acts for past performance include: (i) mere payment of the purchase price; (ii) mere possession of the land; (iii) possession of land coupled with minor improvements or improvements that can be compensated for in money; (iv) performance not exclusively referable to the contract but which may be explained on some other theory (e.g., rent payments); and (v) performance of services of which there can be adequate compensation in an action at law.

• Possession of the land by buyer coupled with valuable improvements or payment; or
• Performance of the land by buyer coupled with valuable improvements.

• Mere payment of the purchase price;
• Mere possession of the land;
• Possession of land coupled with minor improvements or improvements that can be compensated for in money;
• Performance not exclusively referable to the contract but which may be explained on some other theory (e.g., rent payments); and
• Performance of services of which there can be adequate compensation in an action at law.

Yes, if it goes to a material factor. Concealment of a material fact will prevent specific performance as long as the party concealing this information stands in a confidential relationship to the other contracting party. The level of misrepresentation necessary to qualify as a defense to specific performance is not as high as that necessary to result in a rescission of the contract.

Yes, if it is bilateral, material, and a mistake of fact rather than a mistake of law. Unilateral mistake is a defense to specific performance only if the non-mistaken party either knew of, or reasonably should have known of, the mistake.

No.

• The service must be unique;
• The covenant must be reasonably necessary to protect legitimate interests of the employer and reasonable as to both geographical scope and duration;
• The covenant must not unreasonably burden the parties; and
• The covenant must not harm the general public.

If the contract is reasonably necessary to protect the buyer and reasonable in geographic scope and duration.

Yes.

Yes, as long as the property involved is unique.

Yes.

Only if they are in writing.

Nevertheless, under proper circumstances (e.g., part performance doctrine), specific performance will be granted.

Under the doctrine of equitable conversion, the buyer is considered the owner of the land (and therefore has the real property interest) and the seller is considered to hold legal title only as security for the purchase price (and therefore holds a personal property interest).

Yes.

NOTE: This is not the result where the will gives a discretionary power of sale to the executor or where the will makes a specific devise of particular property; i.e, devisee will be entitled to the proceeds from the sale.

Upon exercise of the option.

The seller, unless the contract provides otherwise or the buyer has either legal title (e.g., there has been a closing) or possession at the time of the loss.

No remedy. The buyer may rescind and receive back any consideration paid. The buyer, at his option, may also get specific performance with abatement in the purchase price. Where the destruction is immaterial, both the buyer and seller are entitled to specific performance but the buyer is entitled to partial abatement.

Yes.

Rescission voids the contract and leaves the parties as though the contract had never been made.

• Mistake;
• Misrepresentation;
• Special Rule for Attorney-Client Contracts; or
• Duress, undue influence, illegality, lack of capacity, or failure of consideration.

The mistake must go to a material fact. Mutual mistakes as to collateral facts (e.g., quality, desirability, or fitness of the property involved) are not grounds for rescission where there have been no express or implied representations. Mutual mistakes of fact involving compromise of a disputed fact or where a claim is known to be doubtful are not grounds for rescission when the fact as to which the parties compromised is also the one on which they were mutually mistaken.

Generally, no. However, exceptions to the rule exist when the other party knew of, or should reasonably have known of, the mistake or, under the modern trend, when the nonmistaken party has not yet taken steps in reliance on the contract or when the mistaken party would suffer great hardship.

Yes.

Typical fact pattern: contractor's bid that is substantially lower than the other bids; so low that the other party should know it is a mistake.

When it can be justified by analogy with mistake of fact.

That it was entered into the client with full knowledge of all material circumstances known to the attorney. The attorney must also show that the contract was free from fraud on her part or misconception on the client's part, and that the attorney did not abuse confidences. The burden rests entirely on the attorney to show absence of any misconduct.

No, but the court may make such restoration a condition precedent to relief.

Yes.

NOTE: Under the general rule, negligence of a plaintiff is not a defense to a suit for rescission.

According to some courts, yes, as long as the failure of the rescission action was not based on the merits of the fraud issue.

Reformation changes the written agreement to make it conform to the original intent of the parties.

With rescission, you are arguing that there is no contract because there was no true "meeting of the minds." With reformation, you are arguing that there was a "meeting of the minds" but that the agreement is not accurately reflected in the written contract.

Yes.

Mistake and misrepresentation.

Yes.

The mistake can be of either fact or law.

The recent trend is to allow reformation for unilateral mistake when the writing does not conform to the original agreement and one of the parties is aware of this (unilateral mistake coupled with fraud or inequitable conduct).

THe mistake can be of either fact or law.

Yes. It may be innocent of fraudulent. An instrument will be reformed to reflect the expressed intent of the parties.

Look for the usual equitable defenses such as unclean hands, laches, etc.

No. This is a defense to reformation.

Generally, no.

As a general rule, no.

Yes.

EXCEPTION: Where the donee has substantially relied to his detriment on gifts as conveyed.

No, even if the gift instrument does not confirm to the original intent of the donor. Some courts, however, allow reformation where the donee has detrimentally relied on the donor's original intent which was not expressed in the instrument. As a general rule, the donee may have a gift reformed against the donor's heirs.

A restitutionary remedy imposed by courts to prevent unjust enrichment when a wrongdoer has gained title to property through misappropriation of another's money or property. Defendant's title must be traceable solely to the misappropriated propery (most courts also require a showing that the legal remedy is inadequate). If established, the court will force the trustee to convey to the plaintiff title to the misappropriated property or its product. This gives the plaintiff priority over unsecured creditors. The usual equitable defenses are applicable, and transfer to a bona fide purchaser terminates a plaintiff's equitable right to the proprety.

The court will force the trustee to convey to the plaintiff title to the misappropriated property or its product. This gives the plaintiff priority over unsecured creditors.

The usual equitable defenses.

Yes.