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  1. Tort Remedies
    • 1) Preliminary Injunction
    • 2) Permanent Injunction
    • 3) Constructive Trusts
    • 4) Equitable Liens
  2. Injunctive Relief: Threshold Inquiry
    • Determine if you're required to discuss a permanent or preliminary injunction.
    • Permanent: Issued after full trial on the merits
    • Preliminary: issued pending trial on merits.
    • If in doubt, lien towards permanent, though this isn't definitive.
  3. Preliminary Injunctive Relief: Two Part Test
    • 1) P must establish that there is an 'irreparable' injury.
    • 2) P must establish the likelihood/probability of success
  4. Preliminary Injunctive Relief: Irreparable injury
    • discuss facts in a time frame context.
    • one must show he will incur irrparable injury whie waiting for a full trial on the merits; hence he needs relief now.
    • Note: Irreparable injury is weighed against any hardship D will suffer if a temporary injunction is granted.
  5. Preliminary Injunctive Relief: likelihood of success
    Remember to mention that the court should impose a bond requirement on P to reimburse D if the injunction injures him and P does not succeed.
  6. Temporary Restraining Order
    • Issued pending a hearing to determine whether a preliminary injunction should issue.
    • Test:
    • 1) irreparable injury to P; and
    • 2) likelihood fo success.
    • Distinct from a preliminary injunction:
    • (i) TRO proceedings can be ex parte for emergencies (though a good faith effort to allow the D to appear is required)
    • (ii) thus, no notice is required.
    • (iii) no adversarial proceeding is required.
    • TRO is limited to 10 days (14 in federal court), after which P must obtain a preliminary or permanent injunction hearing.
    • Note - it is very difficult to obtain any type of preliminary injunctive relief that is mandatory inthis form.
  7. Permanent Injunctive Relief
    • Five-part Checklist (Mnemonic: "I put five bucks down"):
    • 1) inadequate legal remedy alternative
    • 2) protectible interest requirement
    • 3) feasibility of enforcement
    • 4) Balancing of hardships
    • 5) Defenses
  8. Permanent Injunctive Relief: Inadequate legal remedy alternative
    • Rule: P must establish there is no viable legal remedy alternative (P's Burden).
    • Four recognized reasons:
    • 1) irreparable injury. Note - 'unique' property is regarded as an irreparable injury
    • 2) monetary damages would be too speculative
    • 3) continuing wrong; injunction avoids multiplicity of actions
    • 4) defendant is insolvent

    Note - Replevin and Ejectment (remedies for regaining possession of personal and real property) are other legal remedy alternatives.
  9. Permanent Injunctive Relief: Protectible Interest Requirement
    • Rule: P must show there is a protectible interest involved (P's Burden).
    • Examples:
    • D builds a fence encroaching on P's property
    • D infringes on P's trademark
    • D stalks P.
  10. Permanent Injunctive Relief: Feasibility of Enforcement
    • Rule: the injunction must be enforceable (P's burden)
    • Negative Injunctions (requiring D to stop doing something) have no enforcement problems.
    • Mandatory Injunctions (requiring D to affirmatively act) - may be an enforcement problem based on (i) the difficulty of supervision or (ii) concern with effectively ensuring compliance.
    • Examples:
    • 1) complex act involving great taste, skill or judgment; injunction denied.
    • 2) a series of acts over a period of time; injunction denied.
    • 3) out-of-state act required; granted if D is a resident; denied if D is a non-resident.
  11. Permanent Injunctive Relief: Balancing of Hardships
    • Rule: equity balances P's benefit against D's hardship.
    • There must be substantially more hardship than benefit.
    • Even then, there will be no balancing of D's hardship if his conduct was willful.
    • Hardship to the public is also taken into account (here it would be P's benefit v. D's hardship + public hardship)
    • If you decide to balance hardships, in whole or in part, consider the alternative of giving P money damages most of the time. If you deny injunction based on public hardship, grant money damages.
    • Balancing hardship is almost always discussed for the torts of nuisance and trespass to land.
  12. Permanent Injunctive Relief: Defenses
    • 1) Unclean Hands
    • 2) Laches
    • 3) Free Speech
  13. Permanent Injunctive Relief: Defenses - Unclean Hands
    • Rule: P's improper conduct will cut off the right to equitable relief, provided however, that the improper conduct must be related to the lawsuit.
    • Note - if P is a undeniably bad guy, but his bad qualities have nothing to do with the lawsuit, the defense will not work.
  14. Permanent Injunctive Relief: Defenses - Laches
    • Rule: Inequitable delay by P in seeking equitable relief cuts off the right to it.
    • When does the clock start? When P knows of the injury.
    • When does the delay cut off the right to relief? When it has been both unreasonable and prejudicial to the D.
    • If laches applies, consider giving P monetary damages
  15. Permanent Injunctive Relief: Defenses - Free Speech
    if the tort is defamation or publication of private facts or false light, the best exam answer is to deny the injunction on free speech grounds.
  16. Constructive Trust
    • Imposed on improperly acquired property to which D now has title. D must return the property to P.
    • Rules:
    • 1) Inadequate legal remedy alternative (i.e. D is insolvent or the property is unique)
    • 2) tracing is allowed (i.e. D sold the property and put the cash in the bank)
    • 3) Bona fide purchasers prevail over P.
    • 4) When D's property cannot be traced solely to P's property, a constructive trust is unavailable.
  17. Equitable Lien
    • Imposed on improperly acquired property to which D now has title. Property will be subject to an immediate court-directed sale. The proceeds go to the P.
    • If the proceeds of sale are less than the fair market value of the property when it was taken, a deficiency (money) judgment will issue for the difference and can be used against D's other assets.
    • Rules:
    • 1) Inadequate legal remedy alternative (i.e. D is insolvent)
    • 2) Tracing is allowed
    • 3) bona fide purchasers prevail over P.
    • 4) When D's property cannot be traced solely to P's property, only an equitable lien is available.
  18. Constructive Trust v. Equitable Lien
    • If the property value subsequent to the taking goes up --> P prefers a constructive trust.
    • If property value goes down --> P prefers an equitable lien.
    • When D's property cannot be traced solely to P's property, only an equitable lien is available.
  19. Contract Remedies
    • 1) Specific Performance
    • 2) Rescission
    • 3) Reformation
  20. Specific Performance: Five-part checklist
    • 1) K is valid
    • 2) performance of P must be assured
    • 3) Inadequate legal remedy alternative
    • 4) Feasibility of Enforcement
    • 5) Defenses
  21. Specific Performance: K is valid
    P must show the K is valid (P's Burden)
  22. Specific Performance: Assured performance of P
    • P must be able to show his performance is assured (i.e. already performed or ready and able to perform)
    • (P's Burden)
  23. Specific Performance: Inadequate Legal Remedy Alternative
    • P must show no viable legal remedy alternative(P's Burden).
    • Four reasons
    • 1) damages are too speculative
    • 2) D is insolvent
    • 3) multiple suits are necessary
    • 4) thing bargained for is unique
  24. Specific Performance: Inadequate Legal Remedy Alternative - Uniqueness
    • Real Property: land is always unique, even if the question makes it look the same. This applies equally to buyers and sellers. Both can get specific performance.
    • Personal Property - General Rule: personal property is not unique; damages are adequate.
    • Personal Property - Exceptions:
    • 1) one of a kind or very rare
    • 2) personal significance to buyer
    • 3) circumstances make the chattel unique (e.g. OPEC cuts production, rendering gasoline unique); uniqueness measured at the time of litigation - not at the time of contract formation.
  25. Specific Performance: Feasibility of Enforcement
    • P must show enforcement is feasible (P's Burden).
    • Enforceability of Personal Services Ks: not specifically enforceable b/c of enforcement problem/involuntary servitude
    • Covenant not to compete - 2-part test: (1) the services are unique (sales clerk v. president); and (2) the scope (geographic and durational) is reasonable.
  26. Specific Performance: Defenses
    • 1) Unclean Hands (same as tort remedies)
    • 2) Laches (same as tort remedies)
    • 3) Unconscionability
    • 4) Mistake (see contract rescission)
    • 5) Misrepresentation (see rescission)
    • 6) Statute of Frauds (see rescission)
  27. Specific Performance: Defenses - Unconscionability
    • More than simply a 'bad deal.' There must also be some 'smell factor' that brought it about.
    • Tested at the time of contract formation; not the time of litigation.
    • Basic Test: whether, in light of the general commercial background and needs of the parties, the contract is so one-sided as to be unconscionable.
    • Possible unconscionability in the event of an unfair surprise.
  28. Specific Performance Mnemonic
    • Vacant Properties Intensify Foreclosure Disaster
    • Valid K
    • Performance of P Assured
    • Inadequate Legal Remedy
    • Feasible Enforcement
    • Defenses
  29. Rescission
    • Definition: original K is considered voidable and rescinded.
    • Analysis (Mnemonic: "Good Dog"):
    • 1) grounds for rescission
    • 2) Defenses
  30. Rescission: Grounds
    • 7 General Grounds:
    • 1) Mistake
    • 2) misrepresentation
    • 3) coercion
    • 4) undue influence
    • 5) lack of capacity
    • 6) failure of consideration
    • 7) illegality
    • ** all of these are problems with formation.
  31. Rescission: Grounds - Mutual Mistake
    • Material Mistake: Rescission Granted.
    • Collateral Mistake: If the mistake was collateral (going to quality, desirability, or fitness for a particular purpose) --> Rescission Denied.
  32. Rescission: Grounds - Unilateral Mistake
    • General Rule: Rescission denied
    • Exceptions:
    • 1) If the non-mistaken party knows or should know of the mistake, rescission will be granted (different from unilateral mistake defense in reformation).
    • 2) Modern Trend Exception: Rescission will be granted if the mistaken party would suffer an undue hardship if rescission were denied.
  33. Rescission: Grounds - Misrepresentation
    Rescission Granted - P must show that he actually relied upon the misrepresentation.
  34. Rescission: Defenses
    • 1) Unclean Hands
    • 2) Laches

    Notable Non-Defense: Plaintiff's negligence will not serve as a defense.
  35. Rescission: Availability of Restitution
    If P who is entitled to rescission has previously rendered performance on the K, he can be compensated for it or get the property back via restitution.
  36. Reformation
    • Definition: Changes written agreement to conform with the parties' original understanding.
    • 3-Step Analysis (Mnemonic: "Very Good Dog"):
    • 1) Valid K
    • 2) Grounds for Reformation
    • 3) Defenses
  37. Reformation: Grounds
    • Mistake
    • 1) Mutual Mistake = reformation granted
    • 2) Unilateral Mistake = reformation denied unless the non-mistaken party actually knew of the mistake (no 'should-have-known' exception).
    • Misrepresentation
    • Misrepresentation = reformation granted for innocent and intentional misrepresentations.
  38. Reformation: Defenses
    • 1) Unclean Hands
    • 2) Laches

    Note - reformation is not allowed where it would adversely affect the rights of a subsequent bona fide purchaser.
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