CAB Remedies

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  1. 3-step listing of categories of remedies
    • Legal Remedies
    • Restitution Remedies (legal and equitable)
    • Equitable remedies
  2. Types of Legal Remedies
    • Damages: D is ordered to pay money to plaintiff
    • 3 types: compensatory, nominal, punitive (except Ks)
  3. Types of legal restitutionary damages
    • Restitutionary damages
    • replevin
    • ejectment
  4. Types of equitable restitutionary damages
    • construstive trusts
    • equitable leins
  5. Types of equitable remedies
    Injunctive relief
  6. Requirements for: Legal remedies - damages
    • Causation (but for)
    • Foreseeability (proximate)
    • Certainty (cannot be speculative)
    • Unavoidability (P must take reasonable steps to mitigate)
  7. Certainty rules: economic loss vs. non-economic loss
    • Economic loss: calculation must be with sufficient certainty
    • Non-economic loss: Jury may award any amount
  8. Slap down for form of judgment payment
    "The judgment must be a single lump sum payment that will be discounted to present value without taking inflation into account (except under the modern rule)"
  9. Three rules for punitive damages
    • Must have been awarded compensatory, nominal, or tort-related restitutionary damages first
    • Fault must be greater than negligence
    • Awarded in amount proportional to actual damages (max. 9x)
  10. Three main concepts for legal restitutionary damages
    • the defendant should not be unjustly enriched
    • based on the benefit to the defendant
    • calculated based on value of benefit received
  11. Definition and elements: replevin
    • Plaintiff recovers possession of a specific personal property
    • 1) P has right to property
    • 2) there is a wrongful withholding by D
    • Note: almost always accompanied w/ damages for loss of benefit of use
  12. Definition and 2-part test: Ejectment
    • Plaintiff recovers possession of specific real property
    • 1) P has a right to possession
    • 2) there is a wrongful withholding
    • Note: sheriff ejects D
  13. Definition: Constructive Trust
    Imposed on improperly acquired property to which D has title. D serves as trustee only to convey property to P.
  14. Definition: Equitable lein
    • Imposed on improperly acquired property to which D has title.
    • Property subject to crt-ordered sale w/ money going to P.
    • If proceeds from sale are less than FMV of property, a deficiency judgment is issued against D's assets
  15. 4 rules for using Constructive trusts and Equitable leins
    • Inadequate legal remedy (D is insolvent/property is unique)
    • Tracing is allowed
    • BFP prevail over P
    • P will prevail over unsecured creditors
  16. Two part test for temporary injunctive relief
    • There is irreparable injury (discuss facts/balance hardships)
    • P's likelihood of success (discuss probability/bond requirement)
  17. 4 part-checklist for injunctive relief
    • Inadequate legal remedy alternative (look for repeat activities)
    • Feasibility of enforcement
    • Balancing of hardships
    • Unclean hands
    • "I'm Feeling Bold & Determined"
  18. 4 balancing of hardship rules
    • Must be gross disparity b/tw D's detriment and P's benefit
    • No balancing if D's conduct is willful
    • Consider awarding monetary damages
    • Hardship on the public (jobs loss?)
  19. 2 types of Compensatory damages under K's
    • Direct: damages flow inherently from the wrong (expectation measure)
    • Consequential: related damages foreseeable at the time of formation (flour mill case)
  20. 2 part test for validity of liquidated damages clause & results
    • Damages are very difficult to ascertain at time of K formation
    • Amount is a reasonable forecast of what they would be
    • If valid: only liquidated amount available
    • If not: only actual damages available
  21. Specific performance 5-part checklist
    • Contract is valid, certain, and definite
    • P's obligations have been are able to be performed
    • Inadequate legal remedy alternative
    • Feasibility of enforcement
    • Defenses
  22. Rule concerning SoF/Part performance doctime involving land and oral K
    If one has rendered valuable part performance in reliance on the contract this will take the case out of the Statute of Frauds and specific performance will be granted
  23. Specific performance: 4 situations where legal remedy alternatives would be inadequate
    • Damages are speculative
    • D is insolvent
    • Multiple suits would be necessary
    • Thing bargained for is unique

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Author:
cfontanesi
ID:
322020
Filename:
CAB Remedies
Updated:
2016-07-20 12:55:58
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CAB remedies
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CAB remedies
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