Remedies July 2014 checklist

I. Torts remedies
A. Damages
B. Legal Restitution
1. Money
2. Replevin
3. Ejectment
C. Equitable Restitution
1. Constructive trust
2. Equitable Lien
D. Injunction
II. Contracts Remedies
A. Damages
B. Legal restitution
1. Moneyquasi contract
2. Replevin
3. Ejectment
C. Equitable remedies
1. Rescission
2. Reformation
D. Injunction
III. Real Property
A. Encroachments
B. Waste
1. Voluntary
2. Permissive
3. Ameliorative




















I. TORTS REMEDIES
A. DamagesCENP
1. Compensatorygoal = to make P whole
a. Limits
b. Types:
i. General
ii. Special
2. Pure economic lossrecovery not allowed w/o property loss or personal injury
3. Nominal damagesPs rts violated but no loss
4. Punitive damagesD displayed willful & wanton tortious misconduct
B. Legal Restitution. Goal prevent unjust enrichment
1. MoneyP awarded $ value of benefit received by D (can only get compensatory
damages or $ restitutionnot both)
2. Replevinrecovery of specific chattel before trial
3. EjectmentP recovers specific real property that he was wrongfully excluded from
C. Equitable Restitutiononly if remedy at law ($ damages) is inadequate. Goal = prevent
unjust enrichment
1. Constructive trustuse if value of prop goes up or stay same (b/c P who was
wrongfully deprived of prop is entitled to receive any increase in props value &
thats assured by returning prop to P through CT). use when:
a. Wrongful act like embezzlement, fraud, theft, conversion of prop
b. D has legal title to prop (not just possession)
c. Money damages are inadequate
d. Property can be tracedProperty must be solely traceable to its current form
and not mingled with other prop subject to a constructive trust b/c title to prop
will be given to P
e. Priority over 3
rd
partiesCT nor ordered where BFP w/legal title holds title.
Unsecured creditors dont prevail
2. Equitable Lienuse when value of prop goes down bc P can get a lien against prop
& try to obtain a deficiency judgment for the balance if any. Can be obtained with a
damages award (CT cant). Use if wrongfully obtained prop was use to improve
other prop.
a. Wrongful acts: embezzlement, fraud, theft, conversion
b. D has legal title to prop
c. Inadequate legal remedy
d. Property can be tracedbut doesnt req that prop be solely traceable to its
current form. Its ok to trace Ps prop to a different piece of prop even if 2 are
commingled and Ps prop was used to improve another piece of prop owned by
D (unlike CT)
e. Priority over 3
rd
parties
D. Injunction
1. Types:
a. Affirmative
b. Negative
2. Temporary restraining orders (TRO)preserve status quo for short time pending
further litigation re prelim injunction. Granted if:
a. Irreparable harm if not granted
b. Likely success on merits
c. Remedy at law inadequate
d. Hardship must balance in favor of P
3. Preliminary injunctionspreserve status quo pending full trial on merits. Same as
above + no defenses
a. No defensesnot granted if D has valid defense
i. Laches
ii. Unclean hands
iii. Ineffective defense
Coming to the nuisance
Sale to BFP
4. Permanent injunctionsct orders to perform act or stop performing act
a. Inadequate legal remedy
b. Property interest
c. Feasibility of enforcement
d. Balancing of hardships
e. no Defenses

II. CONTRACTS REMEDIES note that P can recover either compensatory damages or money
restitution but not both!
A. Damagesparties have K, D breached, P injured & wants $ to compensate for loss
1. Types:
a. Expectation/compensatorygoal = give P what he would have received if K
property performed
b. Consequentialcompensate for damages that are direct & foreseeable
consequence of K not being performed, found in addition to lost expectation
c. Incidentaldamages incurred trying to cover in a breach of K for sale of
goods
d. ReliancePut P in position would have been if K never made. Measure =
cost to P of his performance (cant be greater than K price or expectation
damages)
e. Liquidatedactual damages difficult to calculate, stipulated amt bears
reasonable relationship to anticipated loss. Substitute for all other forms of $
damages (but P may be entitled to SP)
f. Nominaldeclaration that K was breached but P wasnt injured
g. Punitivenot awarded unless indep tort
2. Limitations on damages
a. Causation
b. Foreseeable
c. Certainty
d. UnavoidableP has duty to mitigate
e. Liquidated damages clause controls
B. Legal restitutiongoal = prevent unjust enrichment. (or P wants property back)
1. Moneyquasi contractparties dont have legal K but D derived benefit &
fairness requires payment to P. arises in 3 ways:
a. No attempt to KP gets value of benefit unjustly retained by do
b. Unenforceable KP gets value of benefit unjustly retained by D
c. Breached K
i. P is non-breacherP gets value of benefit conferred or property back
ii. P in breachtraditionally no recovery, modern rule recovery but not
more than k price any damages D incurred from breach
2. Replevinrecovery before trial of specific chattel wrongfully taken
3. Ejectmentrecover specific real prop from which P was wrongfully excluded
C. Equitable remediesremedy at law ($ damages) must be inadequate. Goal = prevent unjust
enrichment
1. RescissionK is treated like it never existed bc fraud, mistake, misrep induced
innocent party to K, so no meeting of minds
2. Reformationwhere there was a meeting of minds but written doc doesnt
accurately reflect parties agreement because of fraud, mistake, misrepresentation
D. Injunctionequitable remedy where ct orders to perform or stop performing act
1. Temporary restraining orders
2. Preliminary injunctions
3. Specific performancepermanent injunction in K where ct orders D to perform on
K as promised. Reqs:
a. Valid K
b. K conditions imposed on P are satisfied
c. Remedy at law ($ damages) inadequate
d. Mutuality of performance
e. Feasibility of enforcement
i. Negative
ii. Affirmative
iii. Jurisdictional issues
f. No defenses
i. Laches
ii. Unclean hands
iii. Defense to underlying K
III. Real Property
A. Encroachmentstrespasses where Ds structures invades Ps property. P entitled to
damages, ejectment, & injunction
B. Wasteinjury to real prop by 1 w/PI against FI holder
1. Voluntarydeliberate destructive act. Remedy = diminution of value or cost of
repair and/or injunction
2. Permissivepoorly maintained. Remedy = damages for cost of repair. Usually no
injunction
3. AmeliorativePI makes impressible improvement that enhance prop value. No
damages but injunction may be granted