VA - Equity - Equitable Remedies & Defenses

• Inadequate when money damages would not make P whole
• Common examples:
• 1. subject matter is unique or rare
• 2. setting an amount of damages would speculative
• 3. defendant is insolvent
• 4. multiple lawsuits would be required
• 5. irreparable harm will occur

• There must be present in the forum state either:
• 1) the person who is ordered to act, OR
• 2) the property which is subject to the suit
• Also, equity might decline injunctive relief if:
• 1) enforcement would require extensive supervision, OR
• 2) the court would lack standards to measure compliance
• EQUITABLE RELIEF IS ALWAYS DISCRETIONARY

prohibitory or mandatory

• Normally available: 1) continuous or repeated trespass to land, 2) conversion of a unique chattel, 3) to stop unfair competition
• Sometimes available: 1) to eliminate a private nuisance, 2) to prevent waste but not if it is ameliorative
• Not available: 1) defamation, 2) commercial defamation, 3) invasion of privacy torts, unless it involves unauthorized use of a person's name or picture, 4) pending criminal proceedings

• must show:
• 1) irreparable harm unless the status quo is maintained
• 2) reasonable probability of prevailing on merits, AND
• 3) public interest will not be adversely affected
• COURT BALANCES THE HARDSHIPS

• 1. a valid contract exists - including offer and acceptance
• 2. all contract conditions have been met, and
• 3. mutuality of remedy exists.

• 1) certainty of material terms (including, subject matter, consideration, duties/performance req'd, period for performance)
• 2) existence of consideration

• 1) time is of the essence provision: insists upon full performance by a specified date. Failure to comply w/ this condition can prevent specific performance unless the equity court chooses to ignore strict enforcement of this clause b/c a) the delay was very slight, b) the other party suffered no injury on account of the delay, c) invalidating the K would work extreme hardship on the late party, OR d) requirement has been waived
• 2) marketable title. if a seller can't convey mareketable title equity won't normally grant specific performance unless a) the deficiency in title is minor, in which case specific performance may be granted w/ a reasonable reduction in the price, OR b) if the buyer waives the deficiencies (again, reasonable reduction)

• one party to a contract is not entitled to specific performance unless the other parties would also be entitled to have the contract specifically enforced
• Mutual if:
• 1) both parties are able to perform, AND
• 2) both parties can be bound

• Tort aspect: using confidential information appropriated from a former employer to competitively injure
• Contract aspect: covenant not to compete
• Obtaining remedy: generally available b/c damages for profits lost from business would be speculative; for tort, issue injunction; for K, will grant specific performance fi restrictions are reasonable (employer's legitimate interests, employee's right to livelihood, sound public policy)
• And three key aspects of the agreement are 1) specific activities prohibited, 2) geographic limit, and 3) duration of the restraint

• Rescission: a remedy by which a voidable contract is put to an end and the parties are treated as though it had never been made
• Reformation: treats the contract as valid, and changes a writing setting forth or implementing the agreement to conform to the originally intended agreement

• Equity will cancel a contract if when entered into
• 1)mutual mistake as to a material fact, OR
• 2) unilateral mistake coupled with misrepresentation OR inequitable conduct
• 3) other grounds like duress, undue influence, lack of capacity or failure of consideration may also justify rescission
• Alternative Theories: recovery of damages for fraud and rescission of the agreement on the basis of this same fraud are mutually exclusive alternative remedies
• Rescission and Restitution: if an agreement is rescinded, restitutionary relief is generally available to recover any value exchanged prior to rescission
• Tender: not a prerequisite to bringing a rescission claim

• Will be reformed if
• 1) any mutual mistake; OR
• 2) unilateral mistake coupled with knowing misrepresentation
• (clear and convincing proof required for either ground)
• parol evidence may be used to show the agreement
• Statute of Frauds no bar

• dealing with unjust enrichment
• P shows that D 1) obtained benefit fromt he P, 2) upon request of the D, or in circumstances showing that D should have known that P expected recompense
• may choose legal (quasi-contract) or equitable
• not available against teh CW
• Remedies:
• 1. dollar awards
• 2. constructive trusts (can be traced to some asset, declares that P is beneficial owner of the asset and that the D must disgorge in a specified form)
• 3. equitable liens (P' money has gone into property of D; on realty requires existence of a writing)
• 4. specific restitution (specific items returned to P)

• Equitable accounting: study of the finances of a person
• Receiver: appointa person to manage a business (drastic)
• Partition of real property: co-owner sues to partition real property. Best interests of the owners controls. Based on proportional ownership and preferred outcome is partition in kind.
• Subrogation: any person who has paid the obligation of another can pursue the rights of the person whose obligation was paid
• Contribution: one joint tortfeasor or joint obligor who pays all to seek recovery from the others; recovery is pro-rata (not proportional)
• Equitable Indemnification: complete reimbursement; available when a party who is w/out personal fault is legally liable for damages cause by the negl of another
• Creditors' Suits: file a creditor's bill" when efforts to enforce thier rights under a judgment has failed. General creditors may only bring in exceptional cases. Whether there was a voluntary transfer or fraudulent conveyance of assets. Two ways to justify remedy - 1) voluntary transfer will be voided if creditor can prove a) inadequate consideration, b) creditor became such before the transfer, and c) debtor making tranfer was insolvent or rendered so by this transfer; 2) fraudulent conveyances will be set aside if applicant can sho a) transferor intended to defraud creditor and b) transfer was made with the effect of hindering or defrauding the creditor

prevents a P from obtaining an equitable remedy otherwise avialable; may be raised against any party except governmental bodies

if P is guilty of improper conduct proximately related to the same transaction (need not be illegal or actionable)

• flexible time bar
• available if
• 1. An adult P waits an unreasonable time before suing, considering when P obtained knowledge of the wrong, and
• 2. delay was prejudicial to D
• laches may bar sooner than SOL but may not extend SOL

• arrangement is fundamentally unfair
• renders unenforceable

indicative of the fact that equity won't order relief which is not feasible and that in equity relief is always discretionary

to whos fraud, must generally allege knowing misrepresentation of a present fact seeking reliance by the other party (clear and convincing evidence)

If party makes representation which foreseeably induces someone to act in reasonable reliance to his detriment, the reprsenting party may be barred from asserting rights inconsistent w/ representations.