remedies

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sfjohnson1010
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remedies
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2011-07-12 18:58:29
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remedies
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  1. General Damages
    Those natural and expected from the claim
  2. Special or Consequential
    often unique, based on individualized facts, must be proven specifically
  3. Limitations on damages (elements)
    • Causation
    • Foreseeability
    • Certainty
    • Avoidable Consequences(mitigation)
    • Agreed Remedies (liquidated Damages)
  4. Tort Foreseeability
    Proximate cause and limit on scope of duty
  5. Contract Forseeability
    Contemplation of the parties
  6. Hadley's Core Principle
    • Were the damages foreseeale at the time of contracting
    • General are presumed, but special must be brought within the contemplation of the parties
  7. Contemplation of the Parties
    What tehy in fact know, or what they should have known if they had given it thought
  8. Aspects of Certainty
    • Fact of damages
    • Amount of damages
  9. Certainty in Contract (NC)
    reasonable showing of the amount of damages will suffice
  10. Avoidable Damages
    Damages that could have been avoided by actions of a reasonable person are not recoverable
  11. Loss of Chance formula for Valuation
    Amount Recoverable is equal to the percent of chance multiplied by the total value of a complete recovery
  12. Certainty (story parchment)
    Where damage is certain result of the wrong, and uncertainty is respect to only the amount, then liberalize rule
  13. Certainty (Kodak)
    Defendant whos wrongful conduct rendered it difficult to ascertain the precise damages is not entitled to complain that they cannot be measured with precision
  14. Duty to undergo Treatment
    If proposed treatment could aggravate existing condition, or develop additional condition, or if prospect for improved health is slight there is no duty to undergo treatment
  15. Liquidated Damages unenforceable unless (1st restatement)
    • Amount fixed is a reasonable forecast of just compensation and
    • the harm that is caused by the breach is one that is incapable or very difficult of estimation
  16. Liquidated damages enforceable (2nd Rest.)
    • only at an amoiunt which is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss
    • a term fixing unreasonably large damages is unenforcable as it is a penalty
  17. Punitive Damages
    • conduct must be more than negligent, but not necessarily intentional
    • Conscious or criminal indifference, wanton, malic, reckless disregard
  18. Punitive Factor Test
    • 1. degree of reprehensibility
    • 2. Disparity between harm to plaintiff and amount of punitives (ratio)
    • 3. Comparable Civil Penalties
  19. Inadequacy
    whether the remedy at law compares favorably with the remedy afforded by an equity court
  20. Another Inadequacy quote
    as complete, practical and efficient as the equitable remedy
  21. Harsh Rule (unclean Hands)
    any wrongdoing of Plaintif bars equitable Relief
  22. Equitable Estoppel
    Acts to prevent a party who has misrepresented a fact from denying his representations regarding that fact
  23. Equitable Estoppel Elements
    • Recipient mst have justifiably relied upon misrepresentation
    • Reliance must have substantially prejudiced the party who relied
  24. Difference between Promisory and Equitable Estoppel
    Promissory Estoppel involves a clear and definite promis, Equitable Estoppel involves missrepresentation
  25. Laches
    An unreasonable delay in pursuing a claim in equity that prejudices the adversary
  26. Purpose of Civil Contempt
    induce compliance, protect/compensate party
  27. Purpose of Criminal Contempt
    Punish/Vindicate Court
  28. TRO without Notice requirments
    • Immediate and irreparable injury, loss or damage, will result before the adverse party can be heard
    • Movant's attorney certifies in writing any efforts made to give notice, and reasons why it shouldnt be required
  29. Contents of TRO without Notice
    • State date and Hour issued
    • Describe injury and why its irreparable
    • state why it was issued without notice
  30. Contents and Scope of Every Injunction and RO
    • State reasons why it issued
    • terms
    • describe in reasonable detail the act or acts restrained or required
  31. Standard to issue TRO
    • Likelihood P will prevail on the merits
    • threat of irreparable injury to P if not issued (no adequate remedy at law)
    • degree of harm to D if injunction issued
    • Public interest
  32. Who is bound by Equitable Degree
    agents, abettors, successors in interest, and acting in concert with party with actual notice
  33. When Liability in restitution is based on a benifit in a form other than money the most suitable measure of the unjust enrichment may be
    • Value of the benifit in advancing the purposes of recipient
    • Cost to claimant of conferring Benefit
    • Market Value of the Benefit
    • Price fixed by agreement between parties
  34. Measure benefit in quantum meruit by
    value of the goods and services provided
  35. earning capacity
    award available for reduced earning capacity available even if no actual reduction in earnings
  36. Show lost capacity by
    • past earnings
    • lost profits
    • specific lost opportunities in future
    • skills, aptitude
    • statisticts as to future
  37. Traditional Actuarial Approach
    Current wages x work life years - discount reducing to present value
  38. how to measure loss
    • experts on market value
    • subjective factors based on owner use
    • cost of repairs
  39. permanant injury
    when costs of repairs exceeds value of building before injury
  40. value of apparel and household goods
    reasonable value of their use to the owner at the time of their distruction
  41. Public Nuisance
    an act not warranted by law, or an omission to discharge a legal duty, which acauses damage to the pucblic in the excercise of common rights
  42. Private Nuisance
    the interference with the right of specific people
  43. Permanent nuisance
    • one action for all injury
    • SOL applies to the whole
    • where nuisance from very character of lawful activity creating nuisance
  44. Temporary Nuisance
    • Successive actions for past injury
    • SOL applies only to portion
    • where nuisance is feasibly abatable
    • where caused by negligence
  45. Election of remedies doctrine
    a plaintiff who has two inconsistent remedies muyst elect between them and pursue only one of them
  46. when are remedies inconsistent
    • when one remedy results from affirming the transactionand the other from disaffirming
    • recision and damages remedies
  47. All damages remidies are considered to _______ the contract
    affirm
  48. Pre-trial election rule
    plaintiffs conduct before trial can be treated as an election to affirm the transaction even if that is not the intent
  49. Ways to Affirm
    express election, passage of time and acts of ownership
  50. Recission requires offer
    Status quo ante unless wrongful acts make impossible
  51. Proximate result rule
    • A defrauded party is entitled to all out of pocket losses
    • He is entitled to the benefit of the bargan
    • He is entitled to the cost of installing missing represented items
    • H is entitled to all consequential damages
  52. Benefit of bargain Rule
    A person may recover the difference between the value the thing would have had if false representations true and the price paid
  53. Out of Pocket Measure
    recover the price paid for property less the market value of the property
  54. Mistake in performance defenses to restitution
    • Assumption of risk
    • Mistake of Law
    • Changed Circumstances
  55. Assumption of risk
    a party who knows they do not know about a crucial fact, voluntarily makes payment on assumed fact has assumed the risk
  56. Change in Circumstance
    circumstances that have so changed that it would be inequitable to require the other to make full restitution
  57. Rescission appropriate where
    there is a mistake of a material fact either as to the subject matter of the sale, the price, or some collateral fact materially inducing the sale
  58. Elements of Mutual Mistake
    • shared by both parties
    • Relate to an essential element of agreement
    • not be a matter of mere expectation or opinion about future events, but fact capable of ascertainment at time of contract
  59. Extrinsic Intention of Party Factors
    • Language of agreement
    • Circumstances of negotiation and execution including representation of legal counsel
    • Seriousness of unknown injury
    • Consideration Paid

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