Remedies Outline
Remedies Outline
Remedies Outline
Overview
Determine the area of substantive law (may be more than one, normally
torts, property or contracts).
Function of Remedy
Damages:
o Compensatory Damages: The goal is to put the P in their rightful
position.
Compensatory damages provide an award of money to the
aggrieved party to compensate for any loss or injury.
Restitution:
o Restores to P any benefit the wrongdoer may have gained from
misconduct.
Specific Relief:
o Gives the injured party the precise performance promised rather than
its equivalent in money.
o Specific performance of contracts, in which the D is ordered to perform
his promise, illustrates this type of relief.
Preventive Relief:
o Affords protection of the Ps rights by a decree prohibiting (enjoining)
the D from doing certain acts or engaging in particular activities
infringing on the P interests.
Declaratory Relief:
o A declaratory judgment conclusively determines the rights of
parties involved in a contested issue, thereby settling the controversy
without awarding any additional relief, such as damages, restitution, or
a coercive decree.
Tort Remedies
Overall Approach For Tort Remedies:
o Has P been/being injured?
ANSWER: Compensatory Damages
o Has D derived any Unjust Enrichment?
ANSWER: Restitutionary Damages
o Does P want the property back?
ANSWER: Replevin, Ejectment, Specific Performance
o Does P need an Injunction?
ANSWER: Preliminary, TRO, Permanent
o Nominal Damages: Where the P has no actual injury, the court may
award nominal damages to serve to establish or to vindicate the Ps
rights.
o Punitive Damages:
o Restitution:
Restitutionary Damages: Where the D has been unjustly
enriched, the court may award damages based on the benefit to
the D.
Calculation: The amount is calculated based on the value of the
benefit. However, where both compensatory and restitutionary
damages are available, P cant get both. Instead, he must make
an election of the two. Generally, the P should be awarded the
larger sum of the two.
No Restitution for Encroachment or Nuisance.
o Injunctive Relief:
Temporary Injunctive Relief: To recover to recover temporary
injunctive relief, P must meet a two part test:
Irreparable Injury: P must show that without the injunction, he
will incur irreparable injury while waiting for a full trial on the
merits.
o Balancing Test: harm to P if injunction is denied v. harm to
the D if injunction is granted.
Where D created the hardship (even if substantial)
balance likely to weigh in Ps favor.
Contract Remedies
Overall Approach For Contract Remedies:
Recovery in Contract may be limited by the requirement that
consequential damages be foreseeable.
Nominal Damages:
Nominal damages are also allowed, but punitive damages are
NOT allowed.
o If Ds conduct is willful, you can get punitive damages
because it's a tort.
Liquidated Damage:
Liquidated damage clauses are permissible, if they are valid.
o Liquidated damage clauses must show:
Damages are difficult to ascertain at the time of contract
formation
o Estimate was a reasonable forecast of what the damages
would be.
If liquidated damages are too high, they will be viewed as
a penalty.
o Result: If valid only liquidated damage amount.
o Result: If invalid dismiss liquidated damages clause and
determine actual damages.
o Cant recover both compensatory and liquidated damages.
But can get other remedies outside of actual damages, such
as specific performance.
Restitution:
o Unenforceable Contract: If a contract is unenforceable after P has
performed (due to mistake, capacity, illegality), P can get restitutionary
damages for property/money given to D, or for services rendered for D
for the value of the benefit.
Not necessary to find that the D actually benefited, only that D
received a benefit.
If the value of the services is greater than the Contract rate, P can
still recover that value.
Specific Performance:
o Five Part Checklist
Inadequacy of Legal Remedies:
Damages may be inadequate because:
o Theyre speculative,
o Defendant s insolvent;
o Multiple suits are necessary; and
o The thing bargained for is unique (tested at the time of
litigation, not during contract formation).
Liquidated damage clause $ is inadequate.
Mutuality of Remedy: Must show the other side can also secure
performance. Only an issue where P lacks capacity. Court will reject
mutuality if it feels secure that P can and will perform.
o Special Problems
Deficiencies Fact Pattern
Rescission
o Equitable Remedy: whereby one who is fraudulently induced into
entering a Contract may rescind the Contract.
o TwoStep Analysis:
REFORMATION
o The Court may modify a written agreement to conform w/ the parties
original understanding.
o Three Steps:
Determine if there is a valid contract.
Determine if there are grounds for reformation.
Mutual mistake
Unilateral mistake IF nonmistaken party KNOWS of mistake
Misrepresentation