Torts Damages

A. Compensatory Damages:
a. Definition
i. Compensates for injury or loss
ii. Measured by monetary value of harm
iii. Money damages is the
b. Types:
i. General Damages
1. Losses that a reasonable person would foresee/ naturally flow from
the tort and all plaintiffs would suffer
a. Ex. Pain and Suffering
ii. Special Damages
1. Losses that could not have been foreseen from the mere occurrence
of the wrong and are directly attributable to the tort that are unique
to each plaintiff
a. Often economic (i.e. medical bills, lost wages)
c. Limitations (some call them requirements)
i. Causation: Damages must be caused by the tortious act (“but for” test)
ii. Foreseeability—Damages must be foreseeable by a reasonable person at
the time of tortious act (proximate cause type analysis)
iii. Certainty—Damages must be capable of being calculated with certainty
and not be overly speculative
iv. Unavoidability—Plaintiff is denied recovery for losses plaintiff could have
reasonably avoided or mitigated
d. Calculation Considerations
i. Past Losses—P can recover for past losses
ii. Future Losses—certainty may be an issue
iii. Examples of value-measure of damages
1. Value of item
2. Value of the loss of the issue
3. Value for pain and suffering
4. Value for lost wages

HYPO: Dan, while riding his bike carelessly, entered Pam’s Garden and biked over her prized
roses, smashing them. The cost of new rose seeds is $50. The cost to buy fully grown
replacement roses is $500. Pam planned to cut the roses that day and enter them into a flower
contest, where the winning prize was $1,000. She cannot enter purchased roses into the contest.
The value of Pam’s home is the same with or without the roses.
What amount, if any, in compensatory damages can Pam recover if she can prove Dan was
negligent?

First, issue spot: Compensatory Damages?

Issue spotting: Measured by monetary value of P’s harm. Here, the harm is the smashed roses.
Special damages are those that are unique and unforeseeable. Here, that could be the plan to
enter them into a contest where they could potentially win $1,000.

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Analyze each of the following using the 4 limitations.
(1) Can P recover the $50 value of the seeds?
(2) Can P recover $500 value of the fully grown replacement roses?
(3) Can P recover the $1,000 she might have won from the flower contest?

Second, Election of remedies

- No double recovery
- P may recover one remedy for each distinct loss
- All relief awarded to P must be complementary rather than duplicative.

Third, Draft answer

Issue: Compensatory Damages

Rule: Compensatory damages are intended to compensate a plaintiff for a legally recognized
harm or injury. The goal is to place the plaintiff in the same position he was in prior to the tort.
Limitations on damages include causation, foreseeability, certainty, and mitigation.

Analysis (Template) : Here, the plaintiff will argue damages should amount to [this amount, the
plaintiff will always want the higher amount] because [the reason why this amount is
representative of the loss]... [Discussion of limitations as raised by the facts]...

Conclusion: Plaintiff will be entitled to [the appropriate amount].

NOTE: Bulk of the points on this problem is knowing that you cannot have double recovery of
both the seeds and the fully grown roses.

B. Nominal Damages
a. Awarded where rights were violated but no loss was sustained. No actual injury or
loss
b. Serves to vindicate plaintiff’s rights. Not available for negligence or fraud
because those causes of action require that P establish damages (this means don’t
talk about them for those types of issues).

HYPO: Dan, while riding his bike, entered Pam’s Garden and biked over her dirt path between
flowers causing no damage. While Pam did not suffer any damages to her land, she is annoyed
that Dan rode his bike into her garden. Can Pam sue Dan for his actions, and if so, what damages
would she be entitled to?

A: Yes, she can. Trespass is an intentional tort.

C. Punitive Damages (also known as Exemplary Damages)

a. Definition

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 i. Punishes a defendant who has engaged in willful, wanton, or malicious
tortious conduct
ii. Intended to deter others from similar conduct by making an example of
the defendant
b. Requirements
i. Actual damages needs to be established (compensatory or nominal) or
proven in the case of negligence where damages is an element of the tort.
ii. D’s culpability needs to be greater than negligence, i.e. willful, wanton, or
malicious conduct.
iii. Due process may be violated if punitive damages impose a grossly
excessive punishment  exceeding 10 times the compensatory damages
rarely complies with the Due Process Clause

HYPO: David was texting while driving. As a result, he swerved into the bike lane and hit
Vickie on her bike. She suffered minor injuries. The police took a report and issued David a
ticket but let him go. Later that day, David continued to text while driving. He was so engaged
in his conversation that he didn’t see a school zone sign. Once again, he swerved into the bike
lane and hit three school aged children causing injuries to all of them. A jury found that David
was negligent and awarded each child $20,000 for their economic and noneconomic damages.

May the jury also award the children punitive damages?

A: EVEN THOUGH THIS IS A NEGLIGENT ACTION, THIS GOES ABOVE THAT

BECAUSE HE CONTINUED to do it.

1. Actual damages are established

a. Jury awarded 20k each in comp. damages
2. Is culpability greater than negligence
a. P will argue D’s behavior was willful b/c D had been warned, ticketed and
already hit a person on a bike while texting and driving
b. D will argue he was negligent
c. Most likely greater than negligence because of D’s past experiences.
3. Is due process violated with grossly excessive punishment?
a. Damages should not exceed a single digit ration between punitive and
compensatory damage (or should not exceed 10 times the amount)

Homework:
Work on outline
Read for tomorrow’s class.

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Personal Property Damages
A. Tortious Destruction of Chattel
a. Damages/Measure
i. Value of chattel at the time of destruction – salvage + interest (no need to
mention interest on her exams)
b. Value
i. Fair Market Value (amount buyer would pay in arm’s length transaction)
ii. If FMV is inadequate compensation, courts may use value to owner
c. Loss of Use: Generally, not recoverable, except:
i. Income-producing property: Majority of courts permit lost profits
ii. Chattel difficult to replace: Loss of use damages (rental value of
replacement chattel or lost profits)

HYPO: Pat’s car is hit by another driver, who is found liable for negligence. Pat was
miraculously unharmed, but his car was totaled. Pat was also transporting a vase that is not
valuable to anyone other than him because his grandmother made it for him before she died. The
vase shattered beyond repair as a result of the car accident. How should Pat’s damages be
measured?

A: FMV for the car. For the vase, since no facts mentioning that it was income producing. Thus,
plaintiff likely won’t recover for loss of use. P would only recover the FMV (or value to the
owner) of the vase.

B. Injury to Chattels
a. For wrongful harm to chattels, P may recover damages measured by either
i. Diminution of the value of the chattel (i.e. diff. in FMV b4 and after
injury)
ii. Cost of repair (not to exceed FMV) + loss of use during repair

HYPO: Taking facts of previous hypo with Pat’s car, but this time the car is not totaled. Instead,
the negligent driver damaged the car, which was already very old. It would cost $30,000 to repair
the car, even though the car was worth $15,000 before it was damaged by the negligent driver. If
Pat doesn’t repair the car, he can sell it for scraps for $5,000. How much should Pat be able to
recover?

A: Pat would be able to recover FMV because it is the $15k FMV – the scraps ($%k), because
plaintiff has to mitigate damages. Thus, P would be able to recover $10k.

C. Dispossession of Chattels
a. Conversion: a major dispossession of chattels
i. D’s intentional interference with P’s right of possession in the chattel that
is serious enough to warrant that D pay the full value of the chattel

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 1. Intent Required: Mere intent to perform the act that interferes with
P’s right of possession is enough; BFP may be liable (even if
innocent)
2. Damages/Measure: FMV at time of conversion + interest +
compensation for time & money spent to pursue property
3. Chattel Improved by D: Enhanced value can be recovered only
where the conversion is willful (e.g., lumber value versus tree
value)

HYPO: Taking facts of previous hypo with Pat’s car, but this time Pat’s car isn’t injured or
destroyed by another. Instead, it was stolen and sold by Dan. Pat took time off work to look for
the car, but could not find it. What can Pat recover from Dan?

A: The damages would be the FMV of the car at the time of conversion. As well as
compensation for the time spent to look for the car.

b. Trespass to Chattel (TTC): Minor dispossession of chattels

i. To be distinguished from Conversion, TTC involves interference with P’s
right of possession in the chattel that is not so serious in nature or
consequences
ii. Damages for loss of use (or nominal damages if no loss)
iii. Mistaken belief that D owns the chattel is no defense; intent to do the act
of interference with the chattel is sufficient

HYPO: Paul and Dan are roommates. Dan does not have a car. Paul is an Uber driver. Paul lets
Dan borrow his car every now and then. While Paul is sleeping, however, Dan takes Paul’s car
without his permission to run an errand. Paul wakes up shortly after Dan leaves because he gets a
ping on his phone that someone wants to hire him for a ride. Paul finds that his car has been
taken. What are Paul’s rights and remedies against Dan?

A: Since he is an uber driver, we can calculate wages based on what he didn’t make. He would
be able to recover for loss of use.

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Injuries to Personal Interests

A. Personal Injuries
a. Compensatory damages are most common remedy for tortiously caused personal
injuries
b. General Damages (noneconomic losses)
i. Pain and suffering
ii. Hedonic loss/loss of enjoyment of life
iii. Emotional distress suffered as a result of the physical injury
c. Special Damages (economic losses)
i. Medical expenses (includes psychiatric care in appropriate cases)
ii. Lost earnings and impaired future earning capacity
d. NOTE: It is not generally necessary to foresee the extent of the harm because a
tortfeasor takes the victim as he finds him (i.e. eggshell plaintiff)
e. Collateral Source Rule: Generally, damages are not reduced by benefits P
received from other sources (ex. health insurance or sick pay from employer).
B. Wrongful Death & Survival of Tort Actions
a. Survival of Tort Actions
i. Per survival statutes, decedent’s estate can sue for personal injury
damages accrued to decedent up to the time of death
ii. Most jurisdictions permit medical expenses, loss of earnings, &
decedent’s pain & suffering
b. Wrongful Death Action:
i. Damages accruing after death, such as loss of financial support, loss of
companionship, and funeral expenses

HYPO: Jack owned the world’s largest uncut diamond, the “Star,” worth $1 million uncut, but
$3 million if cut into finished gems. Of the 20 master diamond cutters in the world, 19 declined
to undertake the task because of the degree of difficulty. One mistake would shatter the Star into
worthless fragments.

One master diamond cutter, Chip, studied the Star and agreed with Jack in writing to cut the Star
for $100,000, payable upon successful completion. As Chip was crossing the street in the
crosswalk to enter Jack’s premises to cut the Star, Chip was run over and killed by Wilbur who
ran a red light. Chip left a widow, Melinda.

What damages may Melinda recover from Wilbur in her wrongful death and survival actions
based on negligence?

A:

Rule: In a wrongful death action, a plaintiff may sue for personal injury damages accrued to the
decedent up to the time of death. Compensatory damages would be the most common form of
recovery for tortiously caused personal injury.

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Here, M would sue to recover for pain and suffering, and medical expenses associated with any
attempted treatment of Chip before death. M could also recover for the loss of earnings of $100k
that Chip was set to earn from the diamond cutting job that he was on his way to complete. M
might have some resistance from the opposing party given that 19 of 20 experts believed the
degree of difficulty of the job was to great for it to be done successfully and the value of the
diamonds when cut was $3 million. Nonetheless, Chip was unable to execute the job because of
Wilbur’s tortious act which caused chips death.

Additionally, M may also be able to recover for the potential job opportunities that may have
been afforded to Chip had he been able to complete such a difficult job. Wrongful death actions
allow for recovery of damages that accrue after the death of the decedent. This could include
potential future business that are now cut off due to the wrongful death, as well as funeral
expenses, loss of financial support, and loss of companionship.

Review
Legal Damages
1. Compensatory Damages
a. General Damages
i. Loss of support and companionship; Decedents pain and suffering
b. Special Damages
i. Income from Star Job (100k); Funeral expenses; Chips medical expenses
c. Requirements/limitations
i. Causation, foreseeability, certainty, unavoidability
1. Critical to talk about this. I missed this in my analysis.
2. Nominal Damages—N/A
3. Punitive Damages—N/A
NOTE: If there is time, raise and dismiss things that don’t apply.

For the remaining damages, there are not major issues worth many points
Other damages include: funeral expenses; medical bills
General damages: Loss of consortium (support)

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TORT LEGAL RESTITUTION
A. Restitution: Prevents unjust enrichment of the defendant & can be an alternative to
compensatory damages.
1. Money Restitution: P is awarded money to compensate for value of the benefit D
received.
i. MEASURED BY:
1. Reasonable value of property, services rendered, etc.
2. Reasonable rental value or use value
3. Profits D gained or received.

Yes, unjust enrichment because she received the huge check so even though she didn’tdo
anything wrong like stealing the money, the bank made the mistake. Bank will say that she was
unjustly enriched so they should get their money back

Answer: No because there (see pic you took)

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Answer: P’s compensatory damages may be limited to the $1,000 she contributed. Under legal
restitution, however, P may recover D’s unjust enrichment (presumably up to $10,000).

2. Replevin: Recovery of specific personal property (plus damages for loss of use)
i. MEASURED BY P showing:
1. P’s right to possession, and
2. There is a wrongful withholding by D.
ii. IF SUCCESFUL:
1. Property is returned to P pursuant to court order, and
2. P can recover damages for time deprived of chattel (or money
restitution for benefit to D during that time)

Answer: P can recover from D the FMV of the painting…presumably for what she bought it for.
Form the BFP, the defendant technically didn’t have title to convey. So, the BFP is technically a
converter. So, P, to the extent they want the painting back, could file a replevin action. However,
P cannot have double recovery. But if there was something like a loss of use and she loss profits
from not having it for some time, then she can sue to recover for that.

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 3. Ejectment: Recovery of real property (plus damages for time deprived of real
property/loss of use)—same elements as replevin, we’re just dealing with real
property.
i. MEASURED BY P showing:
1. P’s right to possession, and
2. There is a wrongful withholding by D.
ii. ADDITIONALY, P can recover damages for:
1. The value of the use of land (ex. Its rental value)
2. Any harm caused to land during D’s possession

Answer: This is a real property issue meaning that it is an ejectment. Thus, go to the two
elements listed above and answer accordingly.

Here, Pam can seek an ejectment because Pam has the right to posses the property and there is a
wrongful withholding by Dina. So, D will no longer have permission to stay there. Also, on top
of that, there is lost rental income that Pam can recover.

B. Equitable Restitution: Only available when the remedy at law, money damages, is
inadequate. The goal of an equitable remedy is to prevent unjust enrichment
1. Constructive Test (CT): Legal fiction created by a court to compel D to convey
title to unjustly retained property to P (D essentially holds the property in trust
for P)
i. Better than money restitution for the following reasons
1. If D is insolvent, P can recover the specific property that is the
subject of the trust
2. With a CT, P becomes a secured creditor and gets priority to the
trust property over unsecured creditors who must compete for
whatever assets can be found
3. And, P will get advantage of any property value increase

ii. REQUIREMENTS:
1. Inadequate legal remedy
a. Ex. D’s insolvency

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 b. Ex 2. Uniqueness of the property that D wrongfully
acquired
2. Wrongful act/unjust enrichment
a. Essentially saying that D’s retention of property would
constitute unjust enrichment because D obtained it in a
wrongful way
b. Ex. Embezzlement, Fraud, theft/conversion
3. D has legal title to item subject to the CT (usually not the original
item taken by D)
a. Ex. D stole $ to purchase something that D now has title to
b. D sells stolen item for $ (D now has legal title to $)
c. D steals property that has been exchanged for other
property that he now has title to
d. Note: If D does not have legal title, P can use replevin to
regain stolen item from D
4. Property can be traced to the wrongful act/behavior
a. CT cannot be imposed on property merely improved by
proceeds of P’s property.
i. Reason: Improved property was not obtained by use
of the misappropriated money.
b. Courts will allow tracing to commingled funds to support
CT by applying the Lowest Intermediate Balance Rule,
which presumes
i. Investor/Spender fiction- D invests/spends own $
first so any investment/purchases deemed to come
from D’s own funds first
ii. After D’s own funds are exhausted, any remaining
balance is from the wrongfully obtained funds.
iii. BUT, once traced proceeds are withdrawn, they
are gone.
1. In sum, Money deposited into the account
does not replenish P’s money unless
evidence shows and affirmative intention by
D to repay P’s money by depositing back
into the account. (This is the exception that
does not really get tested on the BAR)
5. P must have priority over third parties with an interest
a. P will prevail unsecured creditors (ex. Credit card issuers)
since proceeds from P’s property purchased the subject of
the CT.
b. However, P will not prevail over a Bona Fide Purchasers
(BFP)
i. CT (& EL) not available against BFP
1. Ex. Purchaser who paid value & did not
have notice of facts giving rise to the CT or
EL

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 c.
d.
iii. Important Notes
1. P gets the benefit of an increase in value with a CT
2. But an action for a definciency judgment is not allowed after a
CT is imposed
a. Meaning P cannot recover the difference in value if the new
property is worth less than what’s owed to P.
i. In this situation, an Equitable Lien would work
better…

EXAMPLES
D wrongfully uses $10,000 of P’s money to make repairs on his house.
- Answer: CT cannot be imposed
D wrongfully uses $100,000 of P’s money to buy a house for $200,000 in his name.
- Answer: CT can be imposed with half of the house belonging to P

EXAMPLE 2

What can P recover if D withdraws $10,000?

- Investor/spender fiction: D invests/spends his own money first.
- P can get a constructive trust for $5,000
What if D withdraws $15,000
- No constructive trust available
What if D withdraws $15,000 & deposits $25,000 of own funds?
- Still not CT available to P (once traced funds withdrawn, they are unrecoverable P)
What if D withdraws $12,000, and then deposits $4,000?
- P can get a CT for the $3,000 (i.e, $15,000 minus $12,000)
o Would be able to maybe recover the full 5k if affirmative intention

2. Equitable Lien (EL): Legal fiction implied by a court that creates a security
interest/lien in property held by D
i. REQUIREMENTS

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 1. Same as CT. See above
ii. BENEFITS of an EL vs. CT
1. Deficiency Judgements are Allowed for EL
a. Unlike a CT, an equitable lienholder can obtain a
deficiency judgement for any shortfall
b. Thus, EL is preferred when property has decreased in value
2. Tracing for EL
a. Unlike CT, an EL can be imposed on D’s property that was
merely improved by wrongfully acquired funds
b. Other tracing presumptions are same as CT, including
Lowest Intermediate Balance Rule
iii. DIFFERENCES
1.

EXAM TIPS:
- Always talk about both! Then use facts to explain which is better and why
- CT is better to use when value of wrongfully acquired property goes up because P will
receive the benefit of the increase.
- EL is better to use when value of wrongfully acquired property goes down (P can get
deficiency judgment for the difference), or when P’s property was used to improve D’s
property.

MORE EXAMPLES
D misappropriates money from P & uses it to buy shares of stock.
1) What would be better if the stock increased in value?
a. CT because P gets the stock itself & the increase in value.
2) What if the stock decreased in value?
a. P should sue for full amount of misappropriation, get an EL imposed on the stock,
& seek to recover any deficiency from D (which is not allowed with a CT).

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 C. Equitable Defenses—Defenses to equitable actions are remedial rather than substantive;
courts have the discretion to refuse to apply them if there are countervailing equitable
considerations.
1. Laches—Denial of equitable relief due to delay (“Equity aids the vigilant”)
i. ELEMENTS
1. Unreasonable delay in pursuing equitable relief from the time that
P was aware or should have been aware that his rights were
infringed
2. Delay resulted in prejudice to D
ii. EXAM TIP: Analyze laches whenever a time delay is stated in the facts;
look for a gap in time between the harm & seeking of relief.
2. Unclean Hands—P must not have been guilty of any wrongful or unethical
conduct with respect to the subject of the complaint
i. THINGS TO CONSIDER
1. P’s previous misconduct that does not relate to current claim
may not bar recovery
2. If D profited from P’s wrongful conduct, this defense cannot be
invoked
ii. EXAM TIP: Even though you may conclude this defense is ineffective,
you should discuss it anyway if the facts trigger it.

INJUNCTION
A. An injunction is an equitable remedy where the court orders one to perform an act or
stop performing an act. There are 3 Types:
a. Temporary Restraining Order (TRO)
i. Purpose: To preserve status quo until a preliminary injunction hearing can
be held
ii. Timing: Injunction for short time (e.g., 10-14 days)
iii. Notice: Required, but can be obtained ex parte in exceptional
circumstances, such as an emergency

b. Preliminary Injunction
i. Purpose is to preserve status quo pending a full trial on the merits
ii. Timing: Issued until a final judgement by the court
iii. Notice: unlike the TRO, PI cannot be issued ex parte (D has to be given
an opportunity to be heard).
iv. NOTE: Most jdx. Require a bond to be posted to reimburse the enjoined
party for damages caused by the injuction if it’s ultimately not granted.
c. (AKA Interlocutory Orders or Provisionary Remedies)
i. REQUIREMENTS
1. Irreparable injury if the interlocutory injunction is not issued
a. Money damages are inadequate
i. Insolvent D
b. Replevin/Ejectment not feasible

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 i. Chattel cant be found. P wants encroaching
structure removed
c. Multiplicity of suits
i. To avoid ongoing nuisance or trespass
d. Prospective tort
i. Imminent pollution
e. Injury to Land & rare family heirloom
2. P’s injury outweighs the harm that D would suffer if the
interlocutory injunction is not granted (*COMMONLY TESTED*)
a. Willful misconduct weighs heavily against the wrongdoer.
b. Public’s hardship and/or benefit will also be considered.
c. Note: Use all facts, present both sides, & explain why the
hardships balance in favor of the party you conclude
should prevail.
3. Likelihood of success on the merits of P’s underlying claim
a. Ex. If underlying claim is nuisance, discuss entire nuisance
claim to show a likelihood of success on the merits on that
claim.
d. Permanent Injunction
i. Timing: Issued after full trial on the merits
ii. Purpose: To prevent violation of P’s rights or restore P’s rights that have
been violated (not just preserving the status quo like the interlocutory
injunctions)
iii. Requirements
1. Inadequate legal remedy
a. Same as section C
2. Balancing of hardships
a. Same as section C
3. Feasibility of enforcement
a. Negative injunctions: Easier to enforce due to court’s
power to order contempt for non-compliance
b. Affirmative injunctions: More difficult to enforce
(supervision issues)
c. Series of acts (more difficult) v. one required act
d. Act requiring taste, judgment, or skill: Difficult to enforce
due to subjectivity in determining if the act has been
properly performed
e. Jurisdictional issues cause enforcement problems where the
court would have to supervise events outside of their
jurisdiction or assert control over nonparties to the
litigation
B. EQUITABLE DEFENSES
a. Laches (usually won’t work but must talk about it to get points)
i. Applies when the plaintiff has unreasonably delayed, resulting in prejudice
to the defendant.

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 1. HYPO: D starts constructing a building on his land, which
encroaches on P’s land. P is aware of this but says nothing. The
building is completed, and P sues for removal of the building.
a. Answer: P could have said something before the building
was completed, but P didn’t. Thus, D could assert the
defense of laches because P’s delay in bringing this action
prejudiced D after P had knowledge of P’s rights.
b. Answer (Change facts to P not knowing): If P didn’t know,
then it is no longer unreasonable.
i. However—we then get into balancing of hardships.
How hard is it to move a building? If P can get the
FMV of the land that the building is on, then P
won’t get injunctive relief.
b. Unclean Hands
i. Applies when a plaintiff has conducted herself unfairly in the same
transaction in dispute. Elements are (1) serious misconduct and (2) close
relationship to claim.
1. HYPO: P is seeking an injunction against D in connection with the
house D purchased from P. D learned that P has committed fraud
with P’s sale of other houses in the community. Could D use the
defense of unclean hands against P?
a. Answer: D could NOT assert this defense if P’s fraud was
not related to P’s claim against D

TRESPASS TO LAND
A. Simple/Mere Trespass
a. Damages:
i. Nominal damages when no physical injury results to the land
ii. Punitive damages if D trespasses after P has refused permission to enter
P’s land
b. Restitution: Traditionally, denied at common law, but some modern cases allow
such damages
c. Injunctive Relief: Damages may be inadequate to prevent future trespass, and
repeated trespasses would require multiple lawsuits
B. Trespass Causing Severance
a. Damages:
i. Reduced land value or value of severed items (conversion measure)
b. Restitutionary Remedies:
i. Replevin (without payment for improvements) or
ii. Restitutionary damages (value of severed property, unless D acted
willfully in which P can recover improved value)
c. Injunctive Relief:
i. Remedy at law is not adequate because land is “unique”
d. HYPO: D enters P’s land and cuts down some trees. D hauls off the trees and
converts them to timber, yielding a profit. The market value of the unfinished

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 trees taken from the land is $1,000. D invested his own money to process the trees
into lumber and sold the lumber for $2,100.
i. How would we value damages? What if D kept cutting down trees because
he did not think it was P’s land?
ii. Answer:
C. Trespass Causing Injury/Destruction: When D injures or destroys P’s property, including
buildings, trees, crops.
a. Damages:
i. Diminution in property value or
ii. Cost to repair/replace destroyed property + loss of use
b. Injunction:
i. To prevent D from injuring/destroying P’s real property
ii. Land is unique, so damages are not considered adequate remedy
c. HYPO: D clears land for cultivation of crops that he believes to be his. In fact, a
portion of the land belonged to P, and D removed P’s mature trees. How would
we value damages? What if P and D disagreed about who the land belonged to?
i. ANSWER:
D. Trespass with adding unwanted things
a. Examples: Dumping debris on property or storing gas in an underground
formation that extends into P’s property
b. Damages:
i. Rental value of land that was lost or
ii. Cost of removing the unwanted thing
c. Mandatory Injunction: Damages are inadequate because burden should be on D to
restore unique character of land & remove the unwanted thing.

ENCROACHMENT

A. D’s continuing trespass of P’s land (or airspace) with a structure or object (e.g., tree),
even if it was done in good faith.
B. Measure of Damages
a. Depends on the classification of the trespass/encroachment
i. Permanent: Market value of the occupied land
ii. Continuing: Rental value of occupied land
C. Ejectment is often impractical if the encroachment is large
a. Example: Sheriff executes a writ to remove the encroachment,
but the encroachment is a building or immovable structure
D. Injunction is usually sought instead.
a. Money damages are generally inadequate because an
encroachment deprives P of her land, which is considered unique.
b. Public interest may be considered in balancing the hardships.
c. Laches may be an equitable defense.
E. HYPO: D builds a 10-story building on his land which is completely on D’s property at
the ground level. But from the third story up, the building extends over P’s land due to an
outdoor balcony. D did not realize his building would extend over P’s land.
Would P be able to seek relief for encroachment?

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 a. Answer: If relief, it would be most likely monetary. Talk about the hardship
being too much.
F. HYPO 2: What if D did not build the 3rd story yet, and P is concerned about it
encroaching on her property?
a. Answer: Seek TRO

WASTE
A. Waste is injury to property by one in rightful possession against the interest of another
entitled to future possession (e.g., landlord, joint owner)
B. Voluntary/Affirmative Waste: Deliberate & Destructive act
a. Ex. Co-owner of property throws crazy destructive parties
C. Permissive Waste (inaction): Neglect/ property is poorly maintained
a. Damages for both are property value decrease or repair costs
b. Injunction available for voluntary waste, but rarely granted for permissive waste
due to supervision issues
i. Ex. Tenant accidentally floods bathroom but doesn’t clean up, causing
water damage and mold.
D. Ameliorative Waste: Impermissible alterations that enhances property value → No
damages since no loss in value, but injunction may be granted if D is a short-term tenant
a. Ex. Putting in pool against landlords wishes

NUISANCE
A. Overview
a. Nuisance is use of D’s own property in such a way as to unreasonably
interfere with P’s use and enjoyment of P’s property
b. Compare with Trespass, which involves an interference with the landowner’s
exclusive possession by a physical invasion of the land
c. Note: Some bar materials also discuss “public nuisance” and “permanent
nuisance”. We’re focused only on private nuisance for purposes of this course.
B. Nuisance Remedies
a. Compensatory Damages: Includes loss of use and enjoyment, abatement costs,
and emotional distress.
b. Injunctions: Damages are inadequate because (1) the harm relates to P’s
enjoyment of the property & (2) potential multiplicity of suits
c. Some courts do not balance the hardships in these cases because nuisance
is usually intentional. Courts that do balance weigh factors such as:
i. relative uses of the land
ii. whether injunction would require D to shut down a costly enterprise
iii. injury to the public (e.g., loss of jobs or a useful product)
C. Coming to the Nuisance
a. The fact that the nuisance already exists when P moved to it is ordinarily NOT a
defense to P’s suit for injunctive relief
i. However, in one case, injuctive relief was conditioned upon P paying D’s
costs to move the nuisance (a cattle feeding lot)
b. Coming to the nuisance is likewise NOT a defense to an action for damages

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 i. However, proof of loss may be difficult where the nuisance was already
reflected in the lower purchase price of P’s property.

CONTRACT DAMAGES
A. Legal Damages: Applicable where the parties have a contract, D is in breach, & P has
been injured by the breach & wants money to compensate for the loss
a. Types of Legal Damages
i. Compensatory Damages: To compensate for D’s breach (i.e., to put P in
the position she would have even in had D’s promise been performed)

Most common measure is: Expectation or reliance + Consequential +

incidental – Any cost or other loos P saved by not having to perform.
1. Expectation Damages
a. Known as the “benefit of the bargain”
b. Value of the breaching party’s performance that was lose
(ex. Sufficient damages for P to buy a substitute
performance)
c. Protects P’s “expectation interest”

HYPO: Paula was planning to move from Los Angeles to Hawaii. She signed a contract with
Dan to rent an apartment for $2,000 per month for one year beginning immediately in Hawaii.
After signing the contract, Paula packed up her apartment in L.A. and had a company move her
belongings to Hawaii, which cost $5,000. Upon her arrival, Paula learned that Dan rented out the
apartment to another person for $2,500 a month. Paula immediately began to look for another
apartment. In the meantime, Paula stayed in a hotel for a week at $200 per night and stored her
belongings in a storage unit for the week. After one week, she found a new similar apartment for
$2,500 per month for a one-year lease. Paula sued Dan for breach of contract. What expectation
damages can Paula recover?

ANSWER:
Rent: $2,500/month (Mp) – $2,000/month (Kp) x 12 months = $6,000 in expectation damages
Moving Costs: P would have spent $5,000 in moving expenses regardless of D’s breach so she
cannot recover these.
Hotel and Storage Costs: These would not be expectation damages; they are consequential
damages. Paula could get $1,400 for hotel costs ($200/night x 7 nights) and storage costs as long
as they were reasonable.

2. Consequential Damages
a. Special damages that reflect losses over & above standard
expectation damages
b. Compensates harm that occurs as a direct and foreseeable
consequence of the K not being performed.
c. These are damages specific to the particular P & may be
recovered only if at the time the K was made, a reasonable

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 person would have foreseen (knew or had reason to know)
the damages as a probable result of a breach
d. Examples: Lost profits/sales/rental income, costs incurred
to resell goods, expenses to look for other work
e. Note: Foreseeability is key issue!

HYPO: Dan and Pat enter into a written contract where Dan is to fix by a stated date a used
machine owned by Pat so that it will be suitable for sale by Pat to Cindy. Dan knows when they
make the contract that Pat has contracted to sell the machine to Cindy but does not know the
terms of Pat’s contract with Cindy. Because Dan delays in returning the machine to Pat by the
deadline, Pat is unable to sell it to Cindy and loses the profit that she would have made on that
sale. Is Pat entitled to recover the lost profit from this sale?

ANSWER: Yes, P

HYPO 2: Dan and Pat enter into a written contract where Dan is to fix by a stated date a used
machine owned by Pat so that it will be suitable for sale by Pat to Cindy. Dan knows when they
make the contract that Pat has contracted to sell the machine to Cindy but does not know that
Cindy promised to pay an exceptionally high price as a result of the special need for the machine.
Dan delays returning the machine to Pat by the deadline, and Pat is unable to sell it to Cindy. Is
Pat entitled to recover the exceptionally high lost profit from the sale of the machine to Cindy?

ANSWER: D is not liable for P’s loss of profit beyond what would ordinarily result because D
did not know; P did not tell D.

3. Incidental Damages
a. Most commonly associated with contracts for the sale of
goods (UCC) & includes expenses reasonably incurred by
D’s breach
b. Examples for Seller:
i. Expenses incurred in stopping delivery
ii. Costs incurred to resell goods
iii. Costs for transportation, care, or custody of goods
after buyer’s breach
c. Examples for Buyer:
i. Costs incurred to cover
ii. Costs to reject non-confirming goods (e.g.,
inspection, transportation, storage)
ii. Liquidated Damages (She won’t test this. Also, no UCC)
1. Damages stipulated to in the K by the parties
2. LD clauses will be enforceable if following 2 requirements are
met:
a. Breach of K damages when K formed were difficult to
estimate
b. Amount agreed upon must have been a reasonable forecast

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 3. If LD amount is unreasonable, courts will construe it as a penalty
and will not enforce the LD clause
4. Where a LD clause is proper, it controls and are the only damages
recoverable, even if there’s no actual damages.
5. Limitation on damages (F.U.C.C) also
a. 5th is Liquidated damages clause—Calid clause will control
and be the only measure of damages allowed for recovery.

HYPO: On June 15, a teacher accepted a contract for a one-year position teaching math at a
public high school at a salary of $50,000, starting in September. On June 22, the school district
informed the teacher that, due to a change in its planned math curriculum, the high school no
longer needed a full-time math teacher. The school district offered instead to employ the teacher
as a part-time academic counselor at a salary of $20,000, starting in September. The teacher
refused the school district’s offer. On June 29, the teacher was offered a one-year position to
teach math at a nearby private academy for $47,000, starting in September. The teacher,
however, decided to spend the year completing work on a graduate degree in mathematics and
declined the academy’s offer. If the teacher sues the school district for breach of contract, what is
her most likely recovery?

ANSWER: $3,000, the full contract amount less the amount the teacher could have earned in the
teaching position at the academy. (i.e the difference between what she was owed and what she
could have been able to mitigate with but turned down). The jobs must be similar to count for
mitigation.

HYPO 2: The Bank promised to loan Pat and one of his businesses $1 million. At the time of
the loan, the Bank was aware that Pat was in a distressed financial condition. The Bank knew
that, at the time Pat applied for the loan, Pat had been unable to secure other financing. After the
Bank agreed to lend the money, Bank officers reversed the decision. Pat was unable to obtain a
loan elsewhere, and as a result, he was unable to harvest timber on his property, losing profits of
$10,000. Is Pat entitled to recover the lost profits?

ANSWER: Pat has a claim for consequential damages, but a possible limitation may be
foreseeability. While it was foreseeable to the Bank that Pat would face a business default, the
specific loss may have been unforeseeable to the bank.

iii. Reliance Damages (alternative to expectation damages)

1. If P’s ex expectation damages are too difficult or speculative to
calculate, P may recover damages suffered based on reasonable
reliance on the K instead
2. Measured as cost to P in preparation of performance or in
performing the K (i.e., to put P in the position P would have been
in had the K never been formed)
3. Cannot exceed contract price

HYPO: Burger Queen enters into a franchise contract with P to allow P to sell its famous food in
a specific area for one year. In preparation for performance, P spends money on advertising,

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hiring staff, and acquiring premises that cannot be used for other purposes. Burger Queen then
repudiates before performance begins. Can P recover the expenditures described above?

ANSWER: Yes, because the profit P would have made if the K had been performed cannot be
established with reasonable certainty.
iv. Nominal Damages (wont be tested in this class)
1. Serves as declaration that contract has been breached, but P
suffered no actual injury
2. Purpose: To vindicate P’s rights
3. Not needed if Expectation Damages are available
4. Same as in Torts
5. Rarely tested on the bar... and will not be tested in this class.
B. Essay Approach Tips
a. Calculate from P’s point of view, as if K was fully performed
b. Consider any potential limits on damages
i. Causal/Foreseeable/Certain/Unavoidable/Liquidated damages clause
c. Calculate with numbers given in the facts
i. If numbers not given, identify by category (i.e., lost wages)
d. Include all relevant damages (except punitives)!
i. - Expectation, Consequential, & Incidental
ii. - Reliance
iii. - Liquidated (will not be tested in this class)
iv. - Nominal (will not be tested in this class)

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Contracts: Legal Restitution
A. Legal Restitution: Alternative to K dmaages to prevent unjust enrichment. Generally,
measure of restitution is the value of the benegit conferred upon D. If benefits are
difficult ot measure or would achieve an unfair result, recovery may also be measured by
P’s “detriment” (ex. Reasonable value of work performed or services rendered).

Types Include
a. Contract Breached & Canceled
i. When D breaches
HYPO—“Losing” Contract Example:
Owner and Contractor enter into a contract under which Contractor is to remodel Owner’s
kitchen for $30,000, to be paid on completion. During the remodel, Contractor realized he
underestimated the cost due to increasing supply costs. However, Owner ended up breaching
because he could no longer pay Contractor under the contract. Contractor ceased work on the
job. At that point, Contractor had worked up to $32,000 worth on the remodel. Can Contractor
recover $32,000 in restitution, even though his K would have been only $30,000?

ANSWER: If contractor wants to recover reliance damages, then can’t be more than Kp. But
because it is the owner breached and they are seeking restitution, there is no real limit. Thus, the
answer is yes, the contractor can recover the $32,000. You can argue both the detriment to the
contractor and the benefit received by the owner before the breach.
HYPO 2: D entered into a contract with P for her landscaping services for $600, payable upon
completion. P told D she is charging D half of her usual rate because D agreed to let P
photograph the completed landscaping project for an article she planned to propose to a
gardening magazine. P anticipated that the publicity from the article would more than
compensate P for her reduced fee because it would hopefully generate future business.

P completed 2/3 of the project when D unjustifiably repudiated the K. What damages can P
recover?

ANSWER: P could pursue expectation damages of $600. However, if they tried to recover on
restitution, they could recover $800. This number comes from doubling the $600 to get her usual
rate of $1,200, then multiplying that by 2/3 (the amount of work completed) in order to get that
$800.

Note: These are just examples of how legal restitution would come about.
b. Quasi-Contract (no K was made or K is unenforceable)
i. This action applies where there’s no legally binding contract, but D has
derived a benefit & fairness requires payment to P.
ii. A contract is implied in law to avoid unjust enrichment.
iii. Examples include:
1. Emergency services/No attempt to contract: P can recover value of
the benefit unjustly retained by D upon showing that:
a. P conferred a benefit upon D;
b. P had a reasonable expectation of being compensated;
c. D knew or had reason to know of P’s expectation; and

23
 d. D would be unjustly enriched if he were allowed to retain
the benefit without paying the P
e. Measure of Restitution: P recovers the value of the benefit
unjustly retained (often the reasonable value of services)

HYPO: Doctor witnesses an automobile accident and rushes to aid an unconscious victim. Can
Doctor recover for his services?
- Yes, he can recover reasonable compensation for services provided to the victim.

What if the doctor was related to the victim?

- Where the parties are in a close relationship to one another, it’s usually presumed
the benefits were given gratuitously. The party claiming relief bears the burden of
showing they were conferred with an expectation of being paid therefor.

HYPO 2: Owner employs Builder to remodel Owner's house. As Builder begins work, Owner
departs on a two-month trip to a remote tropical island. During Owner's absence, a tornado
damages the roof of the house, necessitating emergency repairs if the house is not to be left open
to the elements. Unable to obtain instructions from Owner, Builder makes the necessary repairs
to the roof and seeks compensation when Owner returns. The reasonable value of Builder's
additional work and materials is $15,000. If repairs had not been performed promptly, the house
would have needed $25,000 in repairs by the time Owner returned. Can Builder obtain restitution
from Owner?

ANSWER: Builder has a claim in restitution against Owner for $15,000

2. Unenforceable contract: Unjust enrichment can result where a K

was made but is unenforceable. A K can be enforceable due to:
a. Impossibility or frustration of purpose
b. SOF problem (K not in writing)
c. Illegal contract
d. Contract disaffirmed because of incapacity
3. Replevin/ Ejectment

HYPO: Owner hires Contractor to repair Owner’s house for $30,000. After Contractor has

24
completed half of the repair work, the house is destroyed by a tornado. Contract is discharged for
impossibility.
Can Contractor recover in restitution?

ANSWER

HYPO 2: P performs domestic services for D pursuant to an oral agreement by which D

promises, in exchange, to convey Blackacre to himself and P as joint tenants. D eventually
repudiates his promise.

Can P recover, even though D’s promise is unenforceable

under the Statute of Frauds?

ANSWER: Yes, P has a claim against D to recover the reasonable value of her uncompensated
services.

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EQUITABLE RESTITUTION
A. RECISSION: Permits a party to invalidate a contract. Restores parties to their pre-bargain
positions
1. Equitable Recission (by court decree)
a. Usually followed by restitution to place contracting parties in the positions they
were in immediately before the K
b. Appropriate where court intervention is necessary
2. Recission by law (by action of the parties)
a. P cancels K with his own actions by giving prompt notice of the rescission to D
& tendering back any consideration received.
b. K is then regarded as terminated & P may seek restitutionary remedies
3. GROUNDS:
a. Mutual Mistake
i. Mistake must be material.
ii. Party seeking the recission must not have assumed the risk of the mistake
occurring
b. Unilateral Mistake
i. Advantaged party knows or should have known
ii. Mistake was material
iii. So extreme that it outweighs other party’s expectations under agreement.
c. Fraudulent Misrepresentation
i. Actionable tort w/ damages recoverable at law
ii. K can be rescinded if
1. D misrepresents material fact
2. D had knowledge of the falsity and inter to deceive
3. P justifiable relies on the misrepresentation.
d. Innocent/Material Misrepresentation
i. Not an actionable tort so no damages to recover. Only remedy is to rescind
K
ii. P can rescind if:
1. D honestly & in good faith asserts a material fact that’s not true; and
2. P justifiably relies on the misrepresentation
a. Except for S.O.G.
4. Other Grounds for recission
a. Duress, Undue influence, etc
B. Equitable Defenses to recission
1. Laches
2. Unclean Hands
3. Estoppel
C. Recission Election of Remedies
1. Seeking damages for breach of K & rescission are inconsistent remedies since any
election to seek damages affirms the K’s existence
2. Merely filing suit for damages is a bar to any later suit for rescission, regardless of
whether any damages are recovered

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 3. Seeking rescission first is not a bar to a subsequent suit for damages as long as D has
not accepted P’s offer to rescind

HYPO (Mutual Mistake): Sal finds a stone that appears to be valuable and shows it to his
friend Bob. The two do not know what the stone is but think it is a topaz. Sal agrees to sell the
stone to Bob for $100. The parties subsequently discover that the stone is a diamond worth
$1,000. Can Sal void the contract on mutual mistake grounds?

ANSWER: No, because the parties knew that their assumption about the stone was doubtful. It
was a mutual mistake, but both parties assumed the risk of the mistake occurring. NOTE: If there
is no fact that they knew (forsure) at the time that it was something different, then it is not a
mutual mistake.
- No recission

HYPO 2 (Mutual mistake): Sal finds a stone that appears to be valuable. This time he takes it
to an expert jeweler who, in good faith, tells Sal that the stone is a topaz worth very little and
offers to buy it for $100. Sal accepts, but subsequently discovers that the stone is actually a
diamond worth $1,000. Can Sal void the contract on mutual mistake grounds?

ANSWER: Yes, because Sal’s reliance on an expert jeweler’s opinion shows Sal did not intend
to assume the risk of not knowing about the stone.
-Yes, contract can be rescinded here. i.e voided.

Hypo (Unilateral Mistake): Seller agrees to sell Buyer different hardware items. Seller
computes total price at $15,000. Buyer agrees to pay this amount. Subsequently, Seller discovers
he made an error in computation & the price should be $17,000. Can Seller seek rescission of the
contract?

Answer: No, assuming that buyer was reasonably unaware of the unilateral computation error.
The error was not an error in the offer; the

Hypo 2 (Unilateral Mistake): Homeowner asks four contractors to submit bids to build a two-
car garage on Homeowner’s property. When Homeowner receives the bids they are: $17,000,
$19,000, $19,500, and $9,000. The last bid was due to a typographical error. Homeowner accepts
the $9,000 offer. Can that contractor rescind the K?

Answer: yes because Homeowner should have known, based on the other bids, that the $9,000
bid probably contained an error.

Hypo (Fraud): Seller sells her home to Buyer for $250,000. Before the sale, Buyer asked about
termite damage. Seller lied, saying there was no damage. In fact, there was damage that Seller
took active steps to hide and that will cost $20,000 to repair. Buyer discovers the damage shortly

27
after she moves in. The house is appreciating in value and is now worth $300,000 (once the
termite damage is repaired). Should Buyer rescind the contract?

Answer: No, don’t rescind since the house has gone up in value. Instead, they should seek
damages for the $20,000 cost to repair.

HYPO (Fraud): Buyer agreed to buy a painting from Seller because Seller told her that the
painting had been previously owned by a famous rock star. Seller knew that the rock start never
owned the painting. Is Buyer’s agreement voidable?

ANSWER: Yes, the misrepresentation is material because a famous prior owner would likely
make a reasonable person agree to buy the painting.

HYPO (Innocent mistake): Same facts as above about the painting that had allegedly been
previously owned by a famous rock star. This time the Seller had no reason to know that fact was
not actually true when he sold it to Buyer. Is Buyer’s agreement voidable?

Answer: Yes, the misrepresentation is material because …

Hypo (Estopel Defense): P discovers D made fraudulent misrepresentations to

induce P to purchase D’s business. Nevertheless, P continues to operate the business as his own,
enjoying the income and profits. Can P still rescind the K for his purchase of D’s business?

Answer: P may be barred from seeking equitable recission because of his conduct, although he
would not be barred from suing for damages.

D. REFORMATION
1. Permits a contract to be rewritten to reflect the parties’ true agreement.
2. GROUNDS:
a. Mutual Mistake of Fact
i. Both parties believed at the time K was signed that it reflected their
agreement (scrivener’s error)
b. Unilateral Mistake of Fact
i. When K was signed, advantaged party knew the writing
did not reflect actual agreement.
c. Mistake of Law
i. Mistake by the parties or drafter as to the legal meaning
of the terms used
d. Fraud/Misrepresentation
i. Can be innocent or fraudulent
ii. Will be reformed to reflect the expressed the intent of the parties.

Hypo: A and B sign a land contract that they both believe covers the land located at 1500
Summer Road. But the contract says 1600 Summer Road. Neither party noticed this
typographical error. Can the parties reform the contract?

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Answer: ???

Hypo 2: P seeks to get a specific type of insurance coverage. The insurance company agent
agreed to provide this coverage. But the policy mistakenly excluded the coverage type. Can P
seek reformation to include the coverage type?

Answer: Yes, the court can reform the policy to include the type of coverage the agent agreed to
provide.

Hypo 3: A & B agree to take title to property that will give either of them the right of
survivorship. They mistakenly believe this result is accomplished by a deed reciting that A & B
take as “tenants in common.” Will reformation be permitted?

Answer: Yes, the words used do not carry into effect …

Hypo 4 (Fraud): P and D contract for the sale of a condo. D never mentioned that the condo
taxes had not been paid in years. A title search came back showing $20,000 in taxes were due.
Can P reform the contract to exclude the taxes from her balance due to D when they close on the
condo?

Answer: Yes, the contract can be reformed because the parties already had an agreement and D
misrepresented the tax situation.

E. Equitable Defenses to Reformation

1. Laches
2. Unclean Hands
3. Sale to Bona Fide Purchaser (BFP)
F. NON- Defenses
1. P’s Negligence
2. Parole Evidence Rule
3. Statute of Frauds

HYPO:

ANSWER: Yes, buyer is entitled to reformation. The majority view…

Final Hypo: See Notes app.

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Injunctions
A. Temporary Restraining order (Same as Torts)
B. Preliminary Injunction (Same as Torts)
C. Specific Performance: Mandatory decree or injunction issued by the court to order a
contracting party to perform what has been promised under K (Frequently Tested)
a. Purpose is to give injured party the benefit of actual performance rather than
merely money damages. (Contracts version of a permanent injunction in torts)
b. REQUIREMENTS:
i. Valid K with certain and definite terms
1. Fairness requires certain & definite terms because the SP order is
enforceable with the court’s contempt power.
2. K terms need to be certain & definite so that the court knows with
specificity what can be enforced
3. Custom or business usage might be used to fill in a minor missing
detail, but it cannot fill in essential terms.
a. Exam Tip: Even if the facts say there’s a valid K and/or
you conclude P can reform it to reflect the parties’ true
agreement, you should still analyze whether the terms are
sufficiently clear & definite to command SP.
ii. P’s performance can be assured (conditions required for D’s performance
must be satisfied). To obtain SP, P must either:
1. Fulfill all her conditions under the K;
2. Be ready and able to perform; or
3. Be excused from performing.
a. Exam Tip: Explain how P has complied with the conditions
or is ready & able to do so.
iii. Inadequate legal remedy
1. For SP, the focus is whether money damages are adequate for
D’s breach of K. Reasons why money damages may be inadequate
depend on the type of K to be enforced. For example:
a. For Ks to buy/sell real property, damages are inadequate
because land is always deemed “unique.”
b. For personal services or sale of chattel, damages may be
adequate, unless the service or chattel are “unique” (but
see next slide about personal services)
iv. Feasibility of enforcement
1. SP cannot be too difficult for the court to enforce. Focus is on
the court’s supervision & jurisdiction. Negative injunctions are
easier to enforce because of the court’s power to order contempt
for noncompliance.
2. Examples of difficult situations for the court to enforce:
a. Series of acts over time
b. Acts requiring skill, judgment, or taste.
c. Personal services contract (difficult to compel best efforts
& decree would amount to involuntary servitude)
v. No defenses/unfairness (Relief must be equitable)

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 1. Factors to consider in determining equity/fairness.
a. Sharp Practices: P’s behavior contains elements of
unconscionability, duress, or undue influence
b. Mistake & Misrepresentation: No SP if assent to K was
obtained through P’s mistake or misrepresentation
c. Hardship: SP will not be granted if enforcement of K will
cause hardship to D or public that greatly outweighs harm
to P
d. Inadequate Consideration: Grossly inadequate
consideration can be a factor that weighs in favor of
unfairness
2. Traditional Equitable Defenses:
a. Laches – this defense concerns itself with the effect of the
passage of time and not with the mere passage of time (i.e.,
prejudice to D needs to exist)
b. Unclean Hands - P engaged in misconduct regarding the
same transaction which P is presenting suing D on

HYPO: Dan entered into a K to sell Paula a gold 1956 Ford pickup truck for $30,000. While
there are other 1956 Ford pickup trucks available, they are difficult to find and none of them are
gold, as that particular gold was a limited-edition color that no longer exists. Before Dan
delivered the car to Paula, Sam offered Dan $40,000 for the truck. Dan tells Paula he is going to
sell the truck to Sam instead. If Paula seeks specific performance, should the court grant her
request?

ANSWER:
- “GOLD” should be a trigger for SP
o First: valid K w/ certain and definite terms b/c D entered into a K to sell p a gold
1956 ford pickup
o Second: P is ready to pay.
o Third: Inadequate legal remedy. Here, the car is unique—a limited edition and is
no longer available.
 The damages are inadequate b/c P can’t buy a model of that color
o Fourth: Feasibility of enforcement. Court can order D to deliver the truck (court
can also issue a TRO/PI to prevent D from selling the truck.
 No JFX issues
 Bonus points for interlocutory injunctions
o Fifth: Defenses? None from these facts.

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SP COMPARISON TO TORTS

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