Remedies

Tort Analysis

Legal remedies, Restitutionary remedies (legal/equitable), Equitable remedies

Legal remedies for tort

Monetary compensatory, nominal, punitive; restitutionary legal (monetary, replevin, ejectment). No contempt for noncompliance

Tort - Monetary compensatory damages

Purpose: compensate P to return to pre-tort condition. Causation, foreseeability, reasonable certainty (economic damages only - cannot be speculative - historical record helps; future: all or nothing rule - more likely than not; certainty rule doesn't apply to non-economic losses), unavoidable (mitigation); judgment single-lump sum, discounted to present value, inflation not taken into account

Tort - Nominal damages

Nominal amount of money available when no actual damages can be proved.

Tort - Punitive damages

Punish willful, wanton or malicious conduct; and deter. Single digit multiple of actual/nominal damages to punitive. D’s wealth is a factor. Can be added to compensatory and restitutionary damages

Tort - Restitutionary damages purpose

Prevent unjust enrichment of D, even if no injury to P.

Tort - Monetary restitution damages

Based on value of benefit to D. Can’t get both restitution and compensatory damages – evaluate both and elect.

Tort - Replevin

Recovery of specific personal property - nearly always coupled with damages. P must have right to possession, must be a wrongful withholding by D. Prelim hearing; P must post bond; D can defeat w/ a redelivery bond. Sheriff ejects

Tort - Ejectment

Remove trespassing D from land – recover specific real property. P must have a right to possession, must be a wrongful withholding by D. Coupled w/damages for loss of use. Sheriff ejects.

Tort - Can P receive both compensatory and restitutionary damages (money damages)?

NO

Tort - Do holdover tenant fact patterns support punitives?

NO

Tort - Equitable remedies

Restitutionary (constructive trust, equitable lien); preliminary or permanent injunction

Tort - Defenses to equitable remedies

Laches (time); unclean hands; freedom of speech; criminal act; undue hardship.

Tort - When to use equitable

Use if legal restitution inadequate if D can keep property by posting bond, or if sheriff can’t find property.

Tort - How to decide between constructive trust/equitable lien?

If property goes up in value (or is unique), use constructive trust. If decreases in value, use equitable lien.

Tort - Constructive trust

Court-imposed obligation on D to convey specific property which D has title to P. $ if traceable. Often, insolvent D. BFP > P > unsecured creditors.

Tort - Equitable lien

Court-imposed security interest in specific property owned by D. Property subject to immediate sale, $ to P, + deficiency judgment (P becomes unsecured creditor). BFP wins. Often, insolvent D.

Tort - Injunction

Negative (refrain from doing something) or mandatory order. Punishment is contempt (civil - money, imprisonment but D holds keys; criminal - money, imprisonment for set time, constitutional protections apply.)

Tort - Preliminary injunction

Irreparable injury + likelihood of success (probability, P must post bond);

Tort - Permanent injunction

I put five bucks down. Inadequate legal remedy (replevin - sheriff, redelivery bond; ejectment - sheriff, $ - speculative, insolvent, irreparable - unique property, multiplicity of actions); property right (CL land, ML personal); feasible (enforcement prob. only on mandatory injunctions); balancing of hardships (benefit to P v. hardship to D. - must be gross disparity, no balancing if willful D, if balance give P $ in lieu of injunction, consider public hardship); defenses (unclean hands - P's bad acts related to lawsuit; Laches - clock starts when P learns, unreasonable & prejudicial delay cuts off relief, consider giving P $; impossibility; free speech - deny injunction in defamation, false light, private fact)

Tort - TRO

Same test as for prelim injunction; ex parte proceeding (notice/adversarial proceeding NOT required); not > 10 days

Tort - Act involves application of great taste, skill, judgment. Injunction is…

denied - not feasible for judge to determine whether requisite amount of taste, etc. is used.

Tort - A series of acts over a period of time. Injunction is…

denied, unless P's case is otherwise great.

Tort - An out-of-state act is required. Injunction is…

If D is a resident, injunction is granted (because court can monitor). If D is nonresident, injunction denied.

Tort - Equity will ________ enjoin crimes, but check to see if________.

Not… the crimes can be recharacterize as torts.

Tort - Who will be bound by injunction?

Parties; employees & agents acting w/ notice; 3d persons w/ notice

Tort - Erroneous injunction arises when __________; it _____ be obeyed; one must have it __________ or ___________.

facts or law change… must … modified or dissolved

Contract Analysis

Legal remedies (damages); Restitutionary remedies (legal - restitutionary damages, replevin, ejectment, equitable - constructive trusts, equitable liens); Equitable remedies (specific performance, rescission, reformation). P has duty to reasonably mitigate.

Contract - expectation damages - purpose

Benefit P expected to get out of the K.

Contract - expectation damages for K not yet started

K price – cost of performance (lost profits)

Contract - expectation damages for partially performed

K price – costs saved (promisee’s breach), or cost of completion – payments due (promisor’s breach)

Contract - expectation damages for fully performed

K price

Contract - expectation damages for defect

Diminution in value or cost of repairs

Contract - Consequential

Special damages in addition to expectation. Must be foreseeable at time K was entered into. Reputation fact pattern

Contract - Liquidated

Specified in K. Actual $ must be difficult to calculate, $ must be reasonable approximation. No penalty. If valid, no compensatory damages (but maybe specific performance); if invalid, use compensatory damages; K can't give choice of liquidated or actual.

If contract D's conduct is willful, see if you can characterize as a ________ case to get _______.

tort… punitive damages

Contract - Restitution comes up with:

Unjust enrichment - quasi-K or quantum meruit; unenforceable K. Available even to D (breaching party).

Contract - Money restitution damages

Value of benefit unjustly retained by D when K is void or unenforceable, or P chooses not to sue in K. P may recover > contract amount

Contract - Replevin - restitutionary remedy

Recovery of specific personal property, if it is unique or D is insolvent.

Contract - Ejectment - restitutionary remedy

Remove trespassing D from land – recover specific real property. Coupled w/damages for loss of use.

Contract - When P is breaching party, can P recover restitutionary damages? What's the special rule?

CL? No. ML? Yes. Restitutionary damages cannot be greater than contract rate and are reduced by any damages suffered by D as result of P's breach

Contract - Defenses

Laches (time); unclean hands; freedom of speech; criminal act; undue hardship.

Contract - Restitution

Use if legal restitution is inadequate if D can keep property by posting bond, or if sheriff can’t find property.

Contract - Constructive trust

Court-imposed obligation on D to convey specific property which D has title to P. $ must be traceable

Contract - Equitable lien

Court-imposed security interest in specific property owned by D. Deficiency judgment ok. BFP wins.

Contract - Specific performance

Valid contract (terms more certain than for money damages); P has performed/excused/ready and able to perform; inadequate legal remedy alternative; mutuality of remedy; feasibility of enforcement (never personal services Ks); defenses

Contract - Specific performance - Conditions fact patterns - deficiency

Seller can't deliver agreed-upon consideration, e.g., quantity of land: if P is seller, can enforce (get SP) only if minor defect; B can get SP unless defect is extraordinarily large; abatement - court WILL LOWER purchase price because of defect).

Contract - Specific performance - Conditions fact patterns - time is of the essence

Explicit, w/forfeiture provision, & facts include partial performance subject to forfeiture - e.g., buyer's down payment; buyer pays late => forfeiture; buyer sues for SP… Equity abhors forfeitures; factors (loss to S is small, tardiness is de minimis; waiver (seller may have accepted late payments in past?); buyer would suffer undue hardship. Almost always award SP - but NOT if buyer has done nothing to perform

Contract - On contracts questions, land is…

unique.

Contract - When can sellers get specific performance when all they have coming is money?

In land sale contracts

Contract - Personal property is not unique, except…

one of a kind/very rare; personal significance to buyer; circumstances (uniqueness tested at time of litigation, not time of K)

Contract - Mutuality arises when:

P should not be able to enforce K against D because D could not enforce it against P (e.g., P was a minor)

Contract - Court will reject mutuality when it feels ________ that P will ________.

secure… perform.

Contract - Defenses

Unclean hands, laches, unconscionability (smell factor, time of formation); mistake, misrepresentation, SoF

Contract - If P can show __________________, will get specific performance - no State of Frauds defense

P has rendered valuable part performance (payment - whole/part, possession, valuable improvements, valuable services (ML)), in reliance on K

Contract - Specific performance issue - equitable conversion

Property interests of buyer and seller switch on execution, so buyer has real property interest (specifically enforceable right to land) and seller has personal property interest (specifically enforceable right to money) - even before closing.

Contract - Equitable conversion - death: If S of land dies between execution and closing, his devisees inherit…

the money from the sale of the land - the buyer owns the land.

Contract - Equitable conversion - damage/destruction: Risk of loss - majority/minority rules:

majority - on buyer; minority - on seller

Contract - Covenant not to compete:

must be to protect legitimate interest and reasonable in duration and geography

Contract - Rescission

GOOD DOG: K is void, and deal is called off. Material (not collateral) mistake. Mutual? YES; Unilateral? No, unless non-mistaken party knew or should've known of the mistake; modern trend grants rescission of mistaken party would suffer undue hardship). BUT see defenses (P's negligence never good d)

Contract - Reformation

VERY GOOD DOG: K is valid, but written form is wrong. K is rewritten correctly and enforced. Grounds? Misrepresentation, material mistake - mutual; unilateral mistake only if nonmistaken party actually knew of mistake. Defenses? (Unclean hands, non-defenses - P's negligence, SoF, PAR)

Contract - Damages are not allowed if P sues for ___________ first.

rescission