How to Ace FYLSE/Remedies Outline

Question Type

• What are H's rights and remedies, if any?
• What are (H's rights and) remedies, if any?
• What remedies, if any, does C have against B?
• Is H entitled to an injunction?
• (What are A's rights and) to what relief, if any, is she entitled?
• What remedies, based on XXX theories, might P and A seek against D to the XXX; what defenses might D reasonably assert against P and A; and what is the likely result as to each remedy?
• What arguments might be made for and against an injunction incorporating each of the forms of injunctive relief being sought by P, and what would be the likely result of each? Discuss.
• How should the court rule on P's claims for past and prospective damages? Discuss.
• Can P obtain specific performance of XXXX? Discuss.

Damages

Causation, Foreseeability, Certain/ascertainable, mitigation

Expectation (Compensatory) Damages

The purpose of compensatory damages is to give compensation for the breach, ie., to put the nonbreaching party in the position he would have been in had the promise been performed.

In a breach of land sale contract, damages are measured either by out-of-pocket loss or by the benefit of the bargain (both are forms of compensatory damages). Under the common law rule, a buyer was limited to recovery of his out-of-pocket expenses, including the down payment, title search, escrow expenses, etc. Under the modern benefit-of-the-bargain rule, a buyer can recover the difference between the contract price and the fair market value of the land.

Consequential Damages

A special type of expectation damages, are those losses above and beyond expectation damages resulting from the breach that a reasonable person would have foreseen at the time of entry into the contract.

Incidental Damages

Incidental damages is expenses reasonably incurred by the nonbreaching party for the breach.

Restitutionary Damages

unjust enrichment

Punitive Damages

Only available under tort and not under contract

Equitable Remedy

Rescission

Rescission seeks to place the parties back in their pre-contractual position and thus represents an unraveling of the contract. Rescission is available where a contract is voidable as a result of a vitiating factor such as misrepresentation, undue influence or duress.

Inadequate Legal Remedy

In order to obtain an equitable remedy like Specific Performance or injunctive relief, P must show that legal (money) damages are inadequate. Ordinarily money damages are sufficient to compensate a party for a breach of contract involving a chattel.

Balancing Hardship

Injunctive Relief is denied where it would operate inequitably, and courts will balance the hardships of granting or denying injunctive relief to both parties.

Constructive Trust

A constructive trust, an equitable remedy, is a court-ordered obligation for one party who has been unjustly enriched at the expense of another.

Equitable Lien

A court can impose an equitable lien to prevent unjust enrichment.

Resulting Trust

purchase money resulting trust

A resulting trust is imposed when one person takes title in his or her name for the benefit of the person who supplied consideration for the property.

Temporary Restraining Order

TRO is an emergency order imposed to maintain the status quo until a regular, adversarial hearing may be held on a motion for a preliminary injunction.

Preliminary Injunction

A court may order a preliminary injunction to maintain the status quo until a trial on the merits can be held. It requires showing of irreparable injury and a likelihood of success on the underlying claim.

Specific Performance

Specific Performance is a mandatory injunction that orders a contract party to perform.

Replevin

Replevin is a legal restitutionary remedy that allows the recovery of specific chattels, permits the plaintiff to recover possession of the chattel at the commencement of the action.

Equitable Defenses

Laches

One can defend on the theory of laches regardless of the statute of limitations because they are complete different theories. Laches operates when a party has 1) unreasonably delayed assertion of their rights so that 2) there is prejudice to the other party.

Unclean Hands

Expressed by the legal maxim, "Equity does not help those who do not come to the court with clean hands.", unclean hands is a defense to specific performance where the plaintiff is guilty of some inequitable or wrongful conduct regarding the same transaction as to which she is presently suing the defendant.

Election of Remedies

The remedy for fraud and that of recession of the contract based on fraud are inconsistent and one must choose.