Card Set Information

2015-07-04 19:41:03
Bar exam

remedies law
Show Answers:

  1. Legal Damages
    A legal remedy awarded to make a plaintiff whole
  2. Compensatory Damages
    Money for the actual loss suffered and nothing more
  3. Issues that can limit Compensatory Damages
    • Causation 
    • Foreseeable
    • Certainty 
    • Unavoidable
  4. Causation Limitation to Damages
    Damages must be caused by the tortious act.  This is the actual, "but for" causation analysis
  5. Foreseeable Damages
    Damages must be foreseeable by a reasonable person at the time of the tortious act
  6. Certainty - Damages
    Damages must be capable of being calculated with certainty and not be overly speculative
  7. Damages must be Unavoidable
    a plaintiff has a duty to mitigate his losses.  The avoidable consequences doctrine limits damages to those that could not reasonably been avoided
  8. General Damages
    Those damages that flow from the substantive wrong complained of, for all plaintiffs, regardless of the special facts or circumstances.
  9. Value Measure
    One method to determine how much compensation is to be given. It is an objective measure giving market value
  10. Cost Measure
    An alternative method for determining how much compensation should be based on how much the item costs
  11. Special Damages
    losses which are peculiar to a particular plaintiff. The plaintiff must prove his loss and damages must be foreseeable
  12. Certainty Requirement
    says to get special damages, you must prove to the court evidence of losses with sufficient certainty and fact of damage
  13. Avoidable Consequences Rule
    This rule will deny recovery for any item of special damages which could have been avoided by reasonable acts. The rule can be stated in the negative (cannot collect for losses which could have reasonably been avoided) or the affirmative (can collect for any amount reasonably spent to try and avoid the consequences of the defendant's conduct).
  14. Collateral Source
    This rule says if the plaintiff receives a benefit from someone other than the defendant, i.e., a third party, the defendant is not allowed to introduce into evidence money or benefits received by the plaintiff from a collateral source. If the benefit conferred is from the defendant himself, then the rule will not apply.
  15. Pre-Judgement
    A form of damages. Interest may be awarded on the claim from the time it was originally due until judgment is awarded. The amount owed must be certain or capable of being made certain.
  16. Attorney's Fees
    Fees that are not damages, but operate as reparation for costs incurred by litigation.
  17. Punitive Damages
    sums awarded apart from compensatory damages, to punish or deter, due to the defendant's aggravated misconduct. It must be proven that the defendant displayed wilful and wanton totious misconduct, and some jurisdictions may require harm other than actual damage
  18. Pure Economic Damages
    Economic losses are generally not allowed, absent a showing of property loss or personal injury.  

    The only exception is Intentional Interference with business Relations
  19. Equitable Order
    These are given by a court of equity and give what the plaintiff seeks in fact (vs. a money equivalent). They operate in personam and are enforced by contempt powers of the court
  20. Injunction
    an in personam order given by an equity court, directing someone to act or not to act in a specific way. Since it is an equitable remedy, it must be proven that the legal remedy is inadequate
  21. Adequacy Requirement
    the legal remedy for the substantive wrong claimed must be inadequate before an equitable remedy is given.
  22. Preservation of Jury
    is one purpose behind the adequacy requirement. If an equitable remedy is given, there is no longer a right to a jury
  23. Economic Waste
    is one of the purposes behind the adequacy requirement. If performance is more expensive than damages warrant, economic waste will occur and thus, to avoid economic waste, may not be awarded
  24. Temporary Restraining
    an injunction which is given traditionally ex parte (without notice) in a situation where there is no time to get a preliminary injunction
  25. Preliminary Injunction
    an injunction which is given after a hearing based on declarations. If granted, the injunction will be effective until final judgment is rendered by the court.
  26. Permanent Injunction
    This injunction settles the rights and duties of the parties and continues in effect unless dissolved by further court order.
  27. Bond
    • 1.       
    • required at the preliminary level and
    • permanent injunction level in an amount equal to the amount of harm the
    • defendant would be caused if a permanent injunction is not granted. The bond
    • thus makes the plaintiff liable for all harm caused by the injunction if it should
    • not have been granted in the first place.
  28. Legal Judgment
    a declaration addressed “to the world,” and is enforced by the individual to whom it is awarded.
  29. Contempt
    the method of enforcement of equity decrees if the defendant fails to comply with the action ordered.
  30. Civil Contempt
    a form of contempt used to coerce the defendant to take the action ordered. The defendant is not entitled to a jury, even though the defendant may be sentenced to jail indefinitely, or the court may impose a fine which will accrue each day the defendant remains in contempt
  31. Criminal Contempt
    a form of contempt used when there is nothing left to coerce. If imprisoned for more than six months, the defendant is entitled to a jury. The sentence imposed will be for a set period of time. If sanctions are a fine, the amount of the fine will also be a set amount
  32. Mandatory Injunction
    This concerns the form of the injunction which requires an affirmative act.
  33. Prohibitory Injunction
    This injunction forbids certain conduct
  34. Encroachments
    a continuing trespass which results when the defendant builds a structure partly on his land and partly on the plaintiff's land. In granting an injunction, the court will balance the hardships of the parties by looking at the economic considerations involved and the conduct of the parties. If the plaintiff wins the balancing, an injunction will be granted. If the plaintiff doesn't win, he will get damages.
  35. Willful Encroachment
    If the defendant has been a willful encroacher and his conduct is deliberate and intentional, the majority of jurisdictions will grant, in equity, the injunction or removal, regardless of the hardship to the defendant.
  36. Nuisance
    the use by a person of his property in such a way as to unreasonably interfere with the use and enjoyment of another's property
  37. Permanent Damages
    damages which are awarded if the activity is found to be factually (will not stop on its own) and physically (court won't stop) permanent
  38. Temporary Damages
    damages to compensate for harm suffered up to the time of the injunction or until a permanent damages decree is given.
  39. Statute of Limitations
    This will block an award of permanent damages in a nuisance situation if the action is not brought within the period of the statute of limitations
  40. Legal Restitution
    Appropriate where the defendant has derived a benefit or has been unjustly enriched, and it would be unfair to allow the defendant to keep that benefit without compensating the plaintiff or where the plaintiff wants his property back.
  41. Money Restitution
    A legal remedy where the plaintiff is awarded the monentary value of the benefit.
  42. Replevin
    is a legal restitutionary remedy. Its purpose is the recovery of specific chattels wrongfully taken or detained before trial
  43. Ejectment
    a legal restitutionary remedy. Where the defendant is wrongfully in possession of the plaintiff's real property, the plaintiff brings this action to have possession restored to him.
  44. Quasi-Contract
    a legal restitutionary remedy where the plaintiff is awarded a sum of money measured by the reasonable value of the defendant's gain.
  45. Waiver of Tort and Suit in Assumpsit
    This is used when a quasi-contract remedy is sought as an alternative to compensatory damages in tort cases. Before this remedy can be used, the tort must result in a benefit to the defendant.
  46. Constructive Trust
    This is an equitable restitutionary remedy. It is implied in law and imposed by equity courts in situations where the defendant's retention of property would result in unjust enrichment.

    • 1) The defendant must have title to specific property involved;
    • 2) the defendant would be unjustly enriched if he were allowed to retain the property; and
    • 3) the plaintiff's legal remedy is inadequate
    • 4) Property must be traceable to the current form
    • 5) A BFP with legal title prevails over Plaintiff
  47. Tracing
    an equitable doctrine which allows the plaintiff to trace misappropriated money to its product, in instances where a constructive trust is sought
  48. Commingled Funds
    where the wrongdoer commingles his own funds and misappropriated funds and then uses the funds to purchase something else. The plaintiff may claim both the funds and trace what was purchased with the funds.
  49. Bone Fide Purchaser
    a defense to the imposition of a constructive trust. A bona fide purchaser is one who pays value without notice of the facts giving rise to the constructive trust.  Equitable rights are cut off by the transfer of legal title to a bona fide purchaser
  50. Equitable Lien
    this is an equitable restitutionary remedy. This lien is an equitable charge on property, imposed by law to prevent unjust enrichment. Its effect is to secure a debt owed to the plaintiff. The lien can be foreclosed and the property sold to satisfy the plaintiff's claim.
  51. Changed Circumstances
    a defense to restitution. If circumstances have changed after one receives a benefit, and that change makes it inequitable to require restitution, the defendant will not have to make restitution if the benefit was lost, destroyed, damaged, or passed on so he no longer has it or its equivalent.
  52. Volunteer Defense
    This is when

    • 1) one person confers a benefit upon another, not required by contract or legal duty;
    • 2) the recipient is unjustly enriched and required to make restitution, unless he was a volunteer.
  53. Gift Principle
    one way to make someone a volunteer. One who confers a benefit with the intent to make a gift cannot recover
  54. Laches
    person is guilty of “laches” when he has unreasonably delayed asserting an equitable claim and the delay has resulted in prejudice to the other party. He will be denied relief.
  55. Unclean hands
    a doctrine which says a person seeking equitable relief must not himself be guilty of any inequitable or wrongful conduct with respect to the transaction or subject matter of the present suit
  56. Rescission
    a contract remedy whose purpose is to restore the status quo ante. If applied, the contract will be cancelled and the plaintiff will be given back any consideration given by him to the defendant
  57. Legal Rescission
    Rescission at law is where the plaintiff effects the cancellation of the contract by his own actions, e.g., when he gives the defendant notice of the rescission and returns any consideration received
  58. Equitable Rescission
    rescission is where the rescission is effectuated by a decree of the court rather than by the action of the injured party. If rescission is granted, restitution is conditioned on the plaintiff's restoration of any benefits received from the defendant
  59. Mistake
    Mistake in the formation of a contract is one of the bases for rescission
  60. Mutual Mistake
    a mistake of fact common to all of the parties to the contract or instrument (i.e., every party must have entered into the contract under the same misconception of fact) that goes to the very basis of the bargain
  61. Unilateral Mistake
    A unilateral mistake will not be a basis for rescission unless the party's unilateral mistake is known, or should be known, to the other party (the non-mistaken party). 

    A unilateral mistake occurs when either party knows or has reason to know, at the time the instrument is signed, that the writing does not conform to the parties' actual agreement. Reformation will be granted
  62. Mispresentation
    A misrepresentation of a material fact, past or present, made with the knowledge of falsity and with the intent to deceive, upon which the plaintiff actually and reasonably relies, may be the basis for rescission
  63. Reformation
    Reformation is an equitable remedy by which a court modifies or alters a written instrument to make it conform to the parties' previous understanding or agreement. There must have been a prior valid agreement between the parties, and the writing fails to conform as a result of mistake or fraud.
  64. Expectation
    an interest protected in contract remedies. The purpose of damages is to put the plaintiff in as good as a position as if the defendant had performed the contract
  65. Reliance
    another interest which is protected in contract remedies. It is the money spent in reliance of the contract
  66. Essential Reliance
    the expenses incurred in the performance of a contract or in preparing to perform the contract. These expenses do not have to be foreseeable. Recovery is limited to the contract price.
  67. Incidential Reliance
    the expenses which were not necessary to comply with the contract, but incurred because of the contract. They must be foreseeable. The contract price is not a ceiling on the amount of recovery
  68. Specific Performance with Abatement
    a doctrine used in equity for land sale contracts when there is a quantitative defect and full performance cannot be rendered. The court will decree specific performance to the portion of the contract that can be performed, and grant abatement as to the unperformable portion of the contract.
  69. Proportionate Abatement
    the majority approach in determining abatement.  The price will be reduced proportionately to the missing land
  70. Decrease in value
    the majority approach in determining abatement.  The price will be reduced proportionately to the missing land
  71. Liquidated Damages Clause
    If there is a valid liquidated damages clause in a contract, it will be the sole remedy available upon a breach of the contract. A liquidated damages clause is valid if, at the time a contract is entered into, it appears that if there should be a breach:

    1. damages will be extremely difficult to ascertain, and

    2. the contractually stipulated amount is a reasonable forecast of what they will be.
  72. Penalty Provision
    an invalid liquidated damages clause because it doesn't meet one of the requirements that damages either be:

    1. difficult to ascertain, or

    2. the amount stipulated be a reasonable forecast of what those damages will be.
  73. Specific Performance
    Specific performance is an equitable remedy in the form of a mandatory decree or injunction which orders a contracting party to perform that which he has promised to perform under the contract.
  74. Definite and Certain Contract
    The requirements of the contract must be definite and certain before specific performance will be granted. There must be a contract between the parties and its terms must be sufficiently certain and definite that the court can determine what it must order each party to do to carry out their agreement.
  75. Mutuality of Remedy
    this will deny specific performance to the injured party if, at the time the contract was executed, specific performance was not available to the other party
  76. Mutuality of Performance
    this has replaced the Mutuality of Remedy Rule. Under the Restatement of Contracts, the court will grant specific performance if the plaintiff has already performed or if, by means of its decree, it can secure for the defendant the performance to which he is entitled under the contract.
  77. Indirect Specific Performance
    the method under which personal service contracts are enforced. The court will grant a negative injunction if the person has unique skills, there is an implied or expressed negative covenant in the contract, and the separate significance requirement is met (that the harm be other than breach of the contract)
  78. Negative Covenant
    a covenant promising not to do or perform some act
  79. Balancing of Hardships
    the court will weigh the hardship to plaintiff if the injunction is denied against the hardship to defendant if the injunction is granted

    A large disparity in hardships weighs in favor of the more severely impacted

    Willful misconduct weighs heavily against the wrongdoer

    Public interest - the hardship to the public and/or any public benefit can be factored into the analysis