36 terms
Terms | Definitions |
|---|---|
 Torts Remedies - list them all | 1. Legal Remedies - Damages 2. Restitutionary remedies the legal ones - restitutionary damages - replevin - ejectment the equitable ones - constructive trusts / equitable liens 3. Equitable remedies - Injunctions |
| Four things to establish for compensatory damages in tort | 1. Causation - but for 2. Foreseeability - proximate cause 3. Certainty - cannot be too speculative, generally, the stronger the proof that something happened, the less certain the damages measure has to be. 4. Unavoidibility - mitigation, must take reasonable steps to avoid loss. |
| Personal injury cases - do we require certainty for non-economic losses? | No we do not! a jury can award all the damages it wants subject to a proper instruction. |
| Form of judgment issues - do we take into account for inflation? | No we do not - unless it's the modern view, in which case we do! And discount the present payment to adjust for future value. Example: you deserve 2 million in 20 years, invest whatever it would take now to reach 2 million in 20 years. |
| Restitutionary remedies - legal (rule statement) | Use this language: Restitutionary remedies are bsaed on the theory that the defendant should not be unjustly enriched. Therefore, we look at any benefit conferred on defendant as a product of his tortious conduct, and we give that value to plaintiff, based on the VALUE of the benefit conferred on defendant. This damage award focuses on the value to defendant as opposed to the injury suffered by plaintiff, which is the analysis in a compensatory damage award. |
| Can you imagine some scenarios where LEGAL and RESTITUTIONARY remedies are available in the same case? | Hypo 1: Defendant destroys plaintiff's car - no restitutionary damages... no benefit conferred on defendant. Hypo 2: Defendant drives his trucks across plaintiff's land to cut down his commute - saving money on gas and labor, give that to Plaintiff. Restitution! Hypo 3: Defendant steals your copy machine and uses it in his business. BOTH remedies are available, but you only gon' get one. Write about both, give plaintiff the larger sum. |
| Replevin - two part test | Plaintiff recovers possession of a specific piece of personal property. Must establish 1. plaintiff has a right to possession 2. there is a wrongful withholding by defendant. |
| Replevin - timing of recovery | The plaintiff can recover the chattel before the trial if he posts a bond, but defendant can defeat that recovery by posting a re-delivery bond. The defendant then keeps the chattel until after the trial. Always remember: it's the SHERIFF who does the recovery, not a self-helping plaintiff. (Always look for damages (compensatory or restitutionary) when discussing replevin because of lost use during time of detention) |
| Ejectment | Plaintiff recovers possession of specific real property - requires a two-part test. 1. The plaintiff has a right to possession 2. There is a wrongful withholding by defendant Ejectment is only available against a defendant who has possession of property. And you best get the sheriff. |
| Constructive Trust / Equitable Lien | Constructive trust - imposed on improperly acquired property to which defendant has title. The defendant serves as trustee and must return the property to the plaintiff. Equitable lien - imposed on improperly acquired property to which defendant has title. Property will be subject to an immediate court directed sale, and the proceeds will go to the plaintiff. If the proceeds of the sale are less than the fair market value of the item when it was taken, a deficiency judgment will issue for the different and can be used against the defendant's other assets. These can only be used when the defendant has title to the property. |
| List the four rules for using equitable restitutionary remedies. | Rule 1. Your legal remedy must be inadequate. So, money damages won't be enough... maybe the defendant is insolvent, and maybe the property is unique (necessitating a constructive trust) Rule 2. Tracing is allowed - if your property is sold by the defendant, you can go after the proceeds from the property. Rule 3. BFPs prevail over plaintiffs - so you can't get a constructive trust placed on property that has since been transferred to a BFP. You have to use "tracing" to get the money back. Rule 4. Plaintiff will stand on equal footing with unsecured creditors. So use a constructive trust to get your actual property back. |
| When do you pick constructive trust vs. equitable lien? | If the property value goes UP - get it back! Constructive trust. If the property value goes DOWN - get that money! Equitable lien, and use a deficiency judgment for the rest. If the defendant's property CANNOT be traced solely to plaintiff's property, only an equitable lien is available on the house to get the money back. |
| What are the contract remedies? (list all of them) | LEGAL: Compensatory Consequential EQUITABLE: Rescission Specific Performance Reformation Declaratory Relief |
| What do you need to show to get compensatory damages? | Causation - "but for" Forseeability - as of the time of formation of contract Certainty - sometimes an issue with new businesses where profits are speculative Unavoidability - plaintiff must take reasonable steps to mitigate his loss. |
| Do you use the four-part test for consequential damages? | yes - these are damages beyond the breach, involving damages or expenses as a consequence of the breach, and also lost profits as a result of the breach. |
| How do you get specific performance | 1. valid and enforceable contract, definite and certain 2. party has met all the required conditions 3. the legal remedy is adequate 4. the remedy is feasible. |
| How do you get rescission? | This is the undoing of a contract... mistake and misrepresentation are the usual grounds - it must have existed at the time of contract. Unilateral mistake - the traditional rule is that a unilateral mistake is not grounds for rescission, but the modern trend is to allow for rescission if the mistake is basic and the mistaken party's hardship outweighs the non-mistaken party's expectation. misrepresentation - false statement of material fact that the defendant knew was false (for damages only - if you don't know, it's not actionable for damages but is actionable for rescission) and that was reasonably relied upon by plaintiff to his detriment. |
| how do you get reformation? | The court modifies a written agreement to make it say something different - to conform to parties' prior understanding. Requires a valid agreement. Grounds include mutual mistake of fact including scrivener's error, unilateral mistake where one party knows of error but other does not, mistake of law as to legal meaning of terms. and fraud. |
| What is an an "equitable lien" and why would you want one? | If a wrongdoer misappropriates funds but then co-mingles them and purchases property with them, you have to get a lien on the account and the property. |
| how do you get PUNITIVE damages in TORT? | For willful and wanton conduct amounting to fraud / oppression / malice. Fraud is intentional lying or concealment of material fact to cause injury. Oppression is conduct that subjects a person to cruel and unjust hardship in disregard of their rights. Malice - conduct intended to cause injury. |
| What are the limitation of punitive damages? | Due process requires at least a single-digit multiplier between compensatory damages and punitive damages. Injuries of non-parties can be used to show reprehensibility, but not to calculate amount of damages. |
| Why might a legal remedy be inadequate? | a. damages too speculative - trademark infringement, stolen item of high personal value but not much actual value b. multiplicity of suits - a factory emits noxious gas. c. irreparable injury - building encroaches on a land, makes it not unique anymore. |
| What is the most important factor in "balancing the hardships" for an injunction? | The defendant' conduct must be INADVERTENT. If it was willful, the court will not consider the hardship to the defendant. |
| What is "laches?" | It's the concept that equity rewards the vigilant. If the EFFECT of the passage of time results in more hardship to the defendant while the plaintiff is not acting, the result will be that an injunction will not issue. |
| What is "unclean hands?" | Any equitable relief is subject to the defense that the plaintiff engaged in "unfair dealing." |
| Injunctions against crimes | you (usually the state's AG) generally can't get them, unless you are seeking an injunction against a public nuisance (protecting the public, not punishing the defendant.) |
| What are the general requirements for a preliminary injunction? | plaintiff must show: - likely to succeed on the merits - irreparable injury if allowed to continue until a trial. |
| List the requirements for receiving specific performance. | 1. Valid contract whose terms are definite and certain 2. Legal remedy inadequate 3. Mutuality of remedy - the court must be satisfied it can ensure that party seeking specific performance will likewise perform - but usually they HAVE performed, so it's cool. 4. feasibility of enforcement |
| Grounds for rescission | 1. a mutual mistake in formation of the contract affecting the basis of the bargain. 2. a unilateral mistake where the other party knew or should have known of the mistake 3. misrepresentation - plaintiff must show actual reliance on a material misrepresentation of fact. |
| grounds for reformation | a valid contract can be reformed to conform to certain terms, but NOT to meet the statute of frauds. mutual mistake as to the drafting of an agreement. |
| What remedies would be available in a contract to buy and sell personal property? | 1. Damages - usually an adequate remedy 2. Specific performance is available if chattel is unique or damages are highly speculative (output contract) |
| What remedies would be available in a contract to buy and sell real property | 1. damages - out of pocket losses OR benefit of bargain for the buyer when the seller breaches -- where the buyer breaches, the seller recovers difference between market price and contract price. 2. restitution - could rescind the contract and get the return of benefits conferred. 3. specific performance - go through the four elements (inadequacy / feasibility / satisfaction (marketable title) / no defenses like SOF, laches, etc.) |
| What remedies would be available in a construction contract? | 1. damages - lost profits / cost of completion 2. restitution - if the owner breaches, builder could rescind and get the value of what he built. if the builder breaches, restitution of benefits conferred in excess of the contract rate 3. specific performance - tough. |
| What remedies would be available in a personal service contract? | 1. damages - obtaining a replacement / wages promised 2. restitution - value of services rendered / paid but unearned wages 3. specific performance - feasibility problems abound (however, covenants not to compete or contracts for exlusive services might be upheld) |
| what remedies would be available if you steal money from someone? | 1. damages 2. restitution for quasi-contract, or constructive trust if the money can be traced, or equitable lien if funds were commingled or traced to the purchase of some property |
| what remedies would be available for destruction of property? | 1. damages - "value of chattel plus interest minus salvage" for destruction / full market value for conversion / cost of repair plus loss of use and maybe punitive damages 2. restitutionary remedies - replevin, quasi-contract, constructive trust, mandatory injunction |
