Christin Hill Bar Review

REMEDIES
TORT REMEDIES
I. DAMAGES
A. Compensatory Damages: Plaintiff is entitled to compensatory damages to put her in the position she
would have been had the wrong not occurred. Must show:
a. Causation: But for
b. Foreseeability: The inury must been foreseeable at the time of the tortuous act
c. Certainty: The damages cannot be too speculative.
i. !pplies to economic losses "special damages#$ but not non%economic damages
"general pain and suffering$ disfigurement#
ii. All or Nothing Rule: &or future damages$ plaintiff must show that they are more li'ely
to happen than not.
d. Unavoidability: The plaintiff must ta'e reasonable steps to mitigate the damage
e. Calculation: single lump sum payment$ discounted to present value. &orget inflation.
B. Nominal Damages: (here the plaintiff has no actual inury$ the court may award nominal damages to
serve to establish or to vindicate the plaintiff)s rights.
C. Punitive Damages: (here the plaintiff)s inury results from willful, wanton, or malicious conduct on
the part of the defendant$ the court may award punitive damages to punish the defendant.
a. Plaintiff must first have been awarded compensatory$ nominal$ or restitutionary damages.
b. Calculation: Must be relatively proportional to actual damages. *++,: single-digit multiple
of actual damages unless the defendant)s conduct is e-treme.
II. RESTITIONAR! REMEDIES
A. Restitutionary Damages: (here the defendant has been unustly enriched$ the court may award
damages based on the benefit to the defendant.
a. The amount is calculated based on the value of the benefit.
b. .owever$ where both compensatory and restituionary damages are available$ plaintiff cannot
get both. /nstead$ she must ma'e an election of the two. 0enerally$ the plaintiff should be
awarded the larger sum of the two.
B. Replevin: /n an action for replevin$ the plaintiff may recover possession of specific personal property.
a. Must show: "1# that P has a right to possession$ and "2# there is wrongful withholding by 3.
b. Timing: !s long as 3 is still in possession$ P can recover the chattel before trial.
i. But$ to do so$ plaintiff will have to post a bond.
ii. !nd$ defendant may defeat an immediate recovery by posting a re-delivery bond.
Through which$ the defendant can 'eep the chattel until after the trial.
c. 0enerally coupled with damages for lost use of the benefit during the wrongful withholding.
d. 4o recovery is sale to a Bona &ide Purchaser
C. E"e#tment: /n an action for eectment$ the plaintiff may recover possession of specific real property.
a. Must show: "1# P has a right to possession$ and "2# there is a wrongful withhold by 3.
b. 5nly available against defendant who has possession of the property.
c. *sually coupled with damages for lost use of the benefit during the wrongful withholding.
D. Constru#tive Trust: 67uitable remedy imposed by the courts when the retention of property by 3%
wrongdoer would result in unust enrichment. 3 serves a trustee and must return the property to P.
a. 8egal remedies muse be inade7uate "e.g the defendant is insolvent or the property is uni7ue#.
b. Tracing: P can follow the property to whatever form it ta'es$ as long as the trust re can be id%ed
c. ona fide purchasers prevail over plaintiff
d. Plaintiff prevails over unsecured creditors.
E. E$uita%le &ien: where the defendant has improperly ac7uired title to a property$ an e7uitable lien allows
the court to order an immediate sale of the property$ and the monies received will go to the plaintiff.
a. Must show "1# 3 misappropriated P)s property creating a debt or obligation to pay$ "2# P)s
property can be traced to property held by 3$ "9# retention would : unust enrichment.
b. /f the proceeds from the sale are less than the fair m't value of the property when it was ta'en$
a deficiency udgment will issue for the difference and can be used against 3)s other assets.
c. (here misappropriated money is used to improve property$ only an e7uitable lien is available.
"e.g house remodel#
d. +ame rules as constructive trusts: tracing allowed; B&P)s prevail.
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Christin Hill Bar Review
III. IN'NCTI(E RE&IE)
A. Temporary In"un#tive Relie*: To recover to recover temporary in. relief$ P must meet a two%part test:
a. !rreparable !n"ury: P must show that without the inunction$ she will incur irreparable inury
while waiting for a full trial on the merits.
i. Balancing Test: harm to P if inunction is denied v. harm to the 3 if inunction is granted
ii. (here 3 created the hardship < even if substantial < balance li'ely to weigh in P)s favor
b. #i$elihood of success: P must show that he=she has a strong li'elihood of success on the
merits. The court will loo' to the probability of this success.
i. This is not an in7uiry on success of obtaining a permanent inunction.
ii. The court should also impose a bond re7uirement on the plaintiff to reimburse the
defendant if the inunction inured him=her and the plaintiff does not succeed.
B. Permanent In"un#tive Relie*: P must meet a five%part test >/ Put &ive Buc's 3own?
a. !nade%uate #egal Remedy: Money damages may be too speculative; 3 may be insolvent; the
sheriff may be unable or unwilling to enforce a replevin or eectment action.
b. &roperty !nterest'&rotectable !nterest:
i. Traditional (iew: e7uity will grant relief only were there is a protectable property right
involved.
ii. )odern (iew: !ny protectable interest will suffice.
c. Feasibility of *nforcement: only an issue with mandatory inunction. 6nforcement problems
may stem from "1# the difficulty of supervision or "2# concern with effectively ensuring
compliance.
d. alancing of +ardships: Plaintiff)s benefit v. 3efendant)s hardship @ the public)s hardship >But$
if the defendant)s conduct was willful$ no balancing?
e. ,efenses$ lac' thereof:
i. #aches: (here there has been an unreasonable lapse of time between when the P
learned of the inury and when the P filed the lawsuit$ and that lapse of time is
preudicial to the 3$ laches will cut off the right to inunctive relief "but not A damages#.
ii. Unclean hands: The persons see'ing e7uitable relief must not be guilty of any
improper conduct that is related to the lawsuit.
iii. !mpossibility: it would be impossible for the 3 to carry out the terms of the inunction.
iv. Free -peech: /nunction may be denied on free speech grounds.
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Christin Hill Bar Review
CONTRACT REMEDIES
I. DAMAGES
A. Compensatory ,amages: based on inury to the P
a. Be7uires: "1# causation; "2# foreseeability "tested at the time of formation; "C# certainty; "9#
unavoidability "mitigation#
b. Conse%uential damages: available for related damages foreseeable at the time of formation
c. -eller breaches a land sale .: ,3 D out%of%poc'et loss 5B benefit%of%the%bargain
B. Nominal damages are also allowed. But$ punitive damages are 45T allowed "if 3)s conduct is willful$
characteriEe as a tort$ so you can get P3s#
C. #i%uidated damage clauses are permissible$ if they are valid
d. 3amages are very difficult to ascertain at the time of F formation
e. This was a reasonable forecast of what they would be.
Besult: if valid : only li7uidated damage amount; if invalid : actual damages available.
II. RESTITTIONAR! REMEDIES
A. /f F is unenforceable !&T6B the P has performed "e.g. mista'e$ capacity$ +o&$ illegality#
a. P can get restitutionary damages for property=money give to$ or services rendered for 3 for the
G!8*6 of the B646&/T.
i. 4ot necessary to find that the 3 actually benefited$ only that 3 received a benefit
ii. /f the value of the services is greater than the F rate$ P can still recover it.
b. P can get the property bac' if it is uni7ue or 3 is insolvent.
c. /uasi-.: P awarded the reasonable value of 3)s illgotten gain or the difference between the
present value of the good less the value before the benefit conferred by P.
B. /f F is breached
a. (here P is the non%breaching party:
i. P may recover restitutionary damages for property=money given to$ or services
rendered for 3 for the G!8*6 of the B646&/T.
ii. P can get the property bac' if it is uni7ue or 3 is insolvent.
b. (here P is the breaching party:
i. Traditional Giew: P may recover 45T./40
ii. Modern Giew: P may recover restitutionary interest$ but it ,!445T be greater than the
F rate and is reduced by any damages suffered by 3 as a result of the breach.
III. SPECI)IC PER)ORMANCE
A. H part chec'%list < >/)m 3oing &ine Mom and 3ad? P must show:
a0 !nade%uacy of legal remedies. 3amages may be inade7uate b=c "1# they)re speculative$ "2#
defendant is insolvent; "C# multiple suits are necessary; "C# the thing bargained for is uni7ue
"tested at the time of litigation$ not F formation#. 8i7uidated damage clause I A is inade7uate
b0 ,efinite and Certain Terms: Terms of the F must be sufficient certain to constitute a valid F
c0 Feasibility of enforcement. J-. over the partiesK Too much court supervision neededK
d0 )utuality of remedy: must show the other side can also secure performance. 5nly an issue
where P lac's capacity: ct will reect mutuality if it feels secure that P can and will perform.
e0 #ac$ of ,efenses: *nclean hands; laches; unconscionability; mista'e; misrepresentation;
e7uitable conversion "sale to B&P#; +o& "satisfied if "i# part performance "ii# in reliance on F#.
B. -pecial problems:
a0 ,eficiencies fact pattern
i. +eller as P: ,!4 enforce F if the defect is minor. ,!445T enforce F if the defect is
maor unless the seller can cure the F before closing.
ii. Buyer as P: ,!4 enforce the F even if the defect is maor "abatement < court will lower
the purchase price to ta'e into account this defect#. ,!445T enforce the F if the
defect is very maor.
b0 Time of the *ssence Clause < w= forfeiture provision. 67uity abhors forfeiture.
i. !void forfeiture "and award +P#$ where: "1# loss to the seller is small; "2# tardiness is de
minims; "C# waiver < seller has accepted late payments in the past; "9# buyer would
suffer undue hardship
ii. Modern trend: cts would give P restitutionary relief if +P were not granted. But$ if buyer
has not made even an initial payment < the forfeiture clause will be strictly enforced.
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Christin Hill Bar Review
c0 *%uitable conversion: real property interest of the buyer and seller are switched upon
e-ecution of the land F.
i. Thus$ the buyer will be regarded as having the real property interest "the specifically
enforceable right to the land#.
ii. +eller will be regarded as having the personal property interest "the specifically
enforceable right to the money#.
d0 Personal +ervices Fs: Covenants Not to Compete
i. The covenant must protect a legitimate interest
ii. The covenant must be reasonable in both is geographical and durational scope.
I(. RESCISSION: e7uitable remedy whereby one who is fraudulently induced into entering a F may rescind F.
2%+tep !nalysis:
A. 3etermine if there are grounds for the rescission:
a. &ormation grounds: "1# mista'e; "2# misrepresentation "C# coercion; "9# undue influence; "H# lac'
of capacity; "L# failure of consideration; "M# illegality.
b. Mutual mista'e of material fact D grounds
c. Mutual mista'e of collateral fact I grounds
d. *nilateral mista'e I grounds *486++ the non%mista'en party 'nows or should have 'nown of
the mista'e.
B. 3etermine if there are valid defenses: *nclean hands; laches "negligence is 45T a good defense#.
C. -pecial &roblems:
e. *lection of remedies:
i. P sues for damages first: rescission is 45T allowed
ii. P sues for rescission first: damages !B6 allowed
f. Availability of Restitution: if a P who is entitled to rescission has previously rendered
performance on the F$ he=she can get compensated for it or get the property bac' via
restitution.
g. #egal Rescission: P accomplishes this by her own actions.
i. P gives notice and tenders bac' any consideration received
ii. P then sues for restitution for anything given to 3.
(. RE)ORMATION: ct. modifies a written agreement to conform w= the parties) original understanding. C%+teps
A. 3etermine if there is a valid contract
B. 3etermine if there are grounds for reformation
a. Mutual mista'e
b. *nilateral mista'e /& non%mista'en party F45(+ of mista'e
c. Misrepresentation
C. 3etermine if there are valid defenses: unclean hands$ laches
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