remedies.txt

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228331
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remedies.txt
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2013-07-27 16:48:20
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ca bar remedies
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ca bar remedies
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  1. Legal remedies
    • 1. Money damages
    • 2. Restitution (money, replevin, ejectment)
  2. Equitable Remedies
    • 1. Restitution (a. constructive trust, b. equitable lien)
    • 2. Injunction
  3. What is a Constructive trust?
    court imposed obligation on defendant to convey specific property to the plaintiff
  4. 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
  5. what is an injunction?
    negative or mandatory order by the court
  6. Tort Damages available?
    • 1. actual damages
    • 2. Nominal damages (small amount awarded when actual damages cannot be proven)
    • 3. Punitive damages
  7. 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
  8. 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.
  9. 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
  10. Equitable Remedies available in tort?
    • 1. Constructive Trust
    • 2. Equitable Lien
  11. 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
  12. 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
  13. 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
  14. Negative injunction:
    order to D to refrain from doing something
  15. Affirmative injunction:
    order to D to do something
  16. 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
  17. Preliminary Injunction in tort, what requirements:
    • Provisional remedy designed to maintain the status quo pending a trial
    • issued after notice and an adversary hearing
    • Elements:
    • 1) Irreparable injury
    • 2) Likelihood of success
    • 3) Balance of hardships (must weigh in favor of P)
    • 4) Public Interest
  18. Permanent Injunction in tort, what requirements?
    • 1) Inadequate Legal Remedy
    • 2) Feasibility
    • 3) (no) Defenses
  19. 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
  20. 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
  21. 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
  22. When is an injunctive decree feasible?
    • 1) court must exercise too much supervision
    • 2) negative or mandatory injunction appropriate?
  23. 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
  24. Hardships balanced in a nuisance case?
    always balance hardships in a private nuisance case
  25. 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]
  26. 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
  27. 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
  28. 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.
  29. 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
  30. Special remedies:
    • 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!]
  31. 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)
  32. Defenses to recission?
    • 1) unclean hands
    • 2) latches
    • 3) election of remedies (P sues for damages first, recission is NOT allowed!)
    • 4) estoppel
  33. 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
  34. defenses to reformation?
    • 1) latches
    • 2) sale to BFP (cuts off remedy)
    • 3) parol evidence rule, SOF, negligence are not defenses!

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