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. What would you like to do?
- 1. Money damages
- 2. Restitution (money, replevin, ejectment)
- 1. Restitution (a. constructive trust, b. equitable lien)
- 2. Injunction
What is a Constructive trust?
court imposed obligation on defendant to convey specific property to the plaintiff
what is a equitable lien?
- court-imposed security interest in specific property owned by the defendant
- "forced sale" + deficiency judgment, if the FMV has dropped
what is an injunction?
negative or mandatory order by the court
Tort Damages available?
- 1. actual damages
- 2. Nominal damages (small amount awarded when actual damages cannot be proven)
- 3. Punitive damages
Actual damages in tort?
- 1. Compensatory damages seek to put P back where he was before the tort. Actual damages in tort look to the past
- 2. General damages: compensate for foreseeable losses, e.g., P&S. these are presumed
- 3. Special damages: compensate for losses not necessarily foreseeable, e.g., lost wages. must be specially pleaded
Punitive damages purpose & requirements?
- 1. Punitive damages purpose is to punish and deter. They do not compensate for actual injury.
- 2. Must establish actual/nominal damages.
- 3. Must be some proportionality between actual/nominal damages and punitive damages. Rule of thumb < 10x
- 4. Wealthy defendants pay more than poor defendants.
What is restitution in tort?
- Benefit unjustly retained by the defendant. Does not need to be any injury to the plaintiff.
- 1. Money: look for benefit to the defendant
- 2. Replevin: recovery of specific PERSONAL property
- 3. Ejectment: recovery of specific REAL property
Equitable Remedies available in tort?
- 1. Constructive Trust
- 2. Equitable Lien
Constructive trust in tort, requirements?
- a) D has title to property
- b) acquisition of title was because of D's wrongdoing
- c) D's retention of property would be unjust enrichment
- d) inadequate legal remedy
- *P gets benefit of any increased value
- *cannot be used when D has improved property on P's land
- *tracing allowed
Equitable lien in tort, requirements?
- a) D has title
- b) wrongful acquisition of property can be traced to D
- c) D's retention would result in unjust enrichment
- *enforced only up to the value of P's claim (appreciation in value not recoverable)
- *can be imposed on property that was merely improved with the P's property, or the proceeds thereof
- *remedy is cut off by a transfer of title to a BFP
If P's property is not used to acquire title of the wrongful property, which remedy can be used?
Only equitable lien is available, not constructive trust
order to D to refrain from doing something
order to D to do something
TRO in tort:
- Order sought at the first stage in P's request for injunctive relief.
- 1) may be issued after a notice and a hearing
- 2) or, ex parte on a sufficient showing of urgency
Preliminary Injunction in tort, what requirements:
- Provisional remedy designed to maintain the status quo pending a trial
- issued after notice and an adversary hearing
- 1) Irreparable injury
- 2) Likelihood of success
- 3) Balance of hardships (must weigh in favor of P)
- 4) Public Interest
Permanent Injunction in tort, what requirements?
- 1) Inadequate Legal Remedy
- 2) Feasibility
- 3) (no) Defenses
When are legal remedies for damages/money restitution inadequate in tort?
- 1) too speculative
- 2) too small to compensate fully for actual injury
- 3) multiplicity of suits
- 4) injury may be irreparable
- 5) may be injury to land
When are legal remedies for replevin inadequate in tort?
- 1) D can keep the property by posting a bond
- 2) sheriff may be unable to find the property
When are legal remedies for ejectment inadequate in tort?
- 1) adequate remedy if P only wants a trespassing D off his land.
- 2) inadequate remedy if P wants removal of an encroaching structure
When is an injunctive decree feasible?
- 1) court must exercise too much supervision
- 2) negative or mandatory injunction appropriate?
Hardships balanced when D encroaches on P's land?
- 1. Intentional encroachment: no balancing, P always wins.
- 2. Innocent encroachment: court will balance, but lean strongly in favor of P seeking removal of encroachment
Hardships balanced in a nuisance case?
always balance hardships in a private nuisance case
Defenses to an injunction?
- 1. Latches (passing of time): has P's inaction encouraged D to act to his detriment?
- 2. Unclean hands: P has unclean hands, must be related to the transaction in the suit
- 3. Freedom of speech: 1st Am rule against prior restraints [national security, trade libel exceptions]
- 4. Criminal act: equity will not enjoin a crime [try to characterize it as a tort]
Contract damages available?
- Damages arise out of a breach of contract by the defendant.
- 1. Expectation damages: benefit P expected to get out of the contract. Look to the future.
- 2. Consequential damages: damages to P in addition to the lost expectation. Must be foreseeable and known by D at the time K was entered into
- 3. Liquidated Damages: damages specified by contract
What requirements for liquidated damages?
- 1) actual damages difficult to calculate
- 2) amount specified in K is a reasonable approximation
- *LD cannot be a penalty
Restitution in contract?
- Money restitution:
- 1) benefits unjustly retained by the D when there is a void or unenforceable K
- 2) benefits unjustly retained by D if P does not choose to sue under the K [quasi-contract, or quantum meruit]
- *breaching party may sometimes recover in restitution even though she breached.
Specific performance of a K?
- order the D to perform the K
- 1) definite and certain terms in a valid K [may need to be more definite than just a valid K requires!]
- 2) satisfaction of conditions/performance by P
- 3) inadequate legal remedy
- 4) feasibiliy
- 5) (no) defenses
- 1. Recission: K is void or voidable, deal is called off
- *GD -> good dog
- 2. Reformation: K is valid and enforceable, but the written form of the K is wrong. K is rewritten correctly and is then enforced.
- *VGD -> very good dog [Reformation requires a valid K!]
When is recission of a K proper?
- a) mutual mistake of material fact (but not if it's a collateral fact re quality or desirability)
- b) unilateral mistake (if the non-mistaken party knew or should have known)
- c) misrepresentation (granted if D actually relied on the misrepresentation)
Defenses to recission?
- 1) unclean hands
- 2) latches
- 3) election of remedies (P sues for damages first, recission is NOT allowed!)
- 4) estoppel
When is Reformation of a K proper?
- a) mutual mistake
- b) unilateral mistake (only if the non-mistaken party knew or should have known)
- c) intentional misrepresentation
defenses to reformation?
- 1) latches
- 2) sale to BFP (cuts off remedy)
- 3) parol evidence rule, SOF, negligence are not defenses!
What would you like to do?
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