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100 Cards in this Set
- Front
- Back
Tort Remedies
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1. Damages:
- Compensatory - Nominal - Punitive - Interest and Attorney Fees 2. Restitution - Restitution Damages - Replevin - Ejectment - Constructive Trust - Equitable Lien - Injunction |
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Compensatory Damages
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- For loss or injury
- Damages mus be causal, foreseeable, certain & unavoidable |
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Nominal Damages
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Where no actual injury sustained
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Punitive Damages
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- For willful, wanton, or malicious conduct
- For ITs and recklessness |
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Due Process Limits to Punitive Damages
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- Grossly excessive PDs violate DP
- PDs should be no more than 9x the compensatory damages - Can consider non-party injuries as evidence of reprehensibility but NOT for determining the amount of PDs - DP violation if do |
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Key Point to Due Process for Punitive Damages
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Did D have fair notice of the possible magnitude of the Pds when considering:
- Reprehensibility of Ds conduct - Disparity between actual or potential harm suffered by P & the punitive award - Difference between PDs award & the criminal or civil penalties authorized for comparable misconduct. |
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Interest & Attorney Fees
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Only by statute or K
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Restitutionary Remedies
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Alternative to compensatory damage3s when D unjustly enriched
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Restitution Damages
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D pays P value of benefit unjustly obtained
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Replevin
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- P recovers possession of wrongfully taken/detained chattel
- Recovers before trial --> pre-trial hearing for valid seizure, bond posted |
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Ejectment
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Restore P's possession of real property from which ousted
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Constructive trust
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Trust to compel D to reconvey title to P when D acquired title to property at the expense of another
- Its advantage over monetary restitution is that P is secured creditor and gets any increase in property value |
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Requirements for constructive trust
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- D obtained title to property via wrongful acquisition of P's property.
- D's retention is unjust enrichment - P does not have adequate legal remedy |
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Defenses to constructive trust
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Laches, unclean hands, transfer of title to BFP
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Requirements for Equitable Lien
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- Imposed on property to which D holds title & to which wrongfully obtained property can be traced.
- Gives P priority in property over other creditors - Can be imposed on property that was merely improved w/P's property or proceeds thereof |
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Equitable Trust v. Constructive Trust
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- If P's property is not used to acquire title, only EL available.
- Lien can be enforced only up to amount of P's claim - Enhanced value of property does not go to P w/EL - P may seek deficiency judgment after imposing EL - EL cut off by transfer to BFP |
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Injunction
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Available if legal remedy is inadequate
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Why a legal remedy may be inadequate
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- $ damages inadequate
- Damages highly speculative/difficult to assess - Multiplicity of suits - Irreparable injury bc loss of something unique - Prospective tort - Inadequacy of Replevin to recover chattels |
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Inadequacy of Replevin to recover chattels
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- Hearing requirement
- D can recover property by posting bond - Difficulty in executing the writ |
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Feasibility of Enforcing Injunction
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- No injunction if difficult to enforce/supervise
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Mandatory v. Negative Injunctions
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- Negative = bar from doing something. Enforce with contempt
- Mandatory requires D to do something & is difficult to enforce |
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Decrees requiring acts in other states
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Allowed bc can supervise by framing injunction negatively and sequestering property
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Balancing Hardships
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Hardship to D should not greatly outweigh benefit P may get.
-Balance unless D acted intentionally - P only gets damages if balances in D's favor. - No balacing for TRO bc temporary - Preliminary injunction, balance at hearing - Permanent injunctions - balance at trial |
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Injunctive relief in tort
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1. Inadequacy of legal remedy
2. Feasibility of enforcing judgment 3. Balancing Hardships 4. D's must overcome |
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Defenses must be overcome
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- Laches
- Unclean hands - Freedom of speech - Injunction against criminal prosecution - Injunction against crimes |
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Laches
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- Ps unr/able delay in bringing claim results in prejudice to D
- Can be less time than SOL - Laches starts running when P knows his rights are infringed |
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Unclean hands
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P cannot be guilty of unfair dealing re: transaction suing upon
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Freedom of speech
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No injunction against personal defamation
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Injunction against criminal prosecution
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Only if irreparable injury to P will result
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Injunction against crimes
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-Generally no jx in equity
- Public nuisance exception if criminal prosecution inadequate |
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Misappropriation of $$ - Damages
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Damages: P must show identifiable money taken
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Injuries to personal property
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1. Destruction of chattels:
2. Injury to chattels 3. Dispossession of chattels: 4. Punitive damages if malicious conduct |
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- Successive converters
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liable for value of chattel when acquire it except to the extent of improvements made by previous innocent converter
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Misappropriation of $$ - Restitutionary Remedies
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Restitution:
-Quasi-K if D unjustly enriched by misappropriation of P's $ - Constructive trust if P can specifically ID trace stolen $ to D if funds used only to pay off debts, etc., majority view is that no Ct will lie against D's remaining assets bc there is no trust res. - Equitable lien: if misappropriated funds not used to obtain title to property or D commingles the $ |
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Injury to personal property - Destruction of chattels
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- value of chattel when damaged = salvage + interest.
- Loss of use if chattel is income-producing |
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Injury to personal property - Injury to chattels
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is the diminution of value OR cost of repair + loss of use.
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Injuries to Personal Property - Dispossession of chattels
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- Conversion damages = FMV at time of conversion + interest + cost of pursuit.
- No duty to mitigate by accepting chattel - If P does accept, damages reduced by value at return. |
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Injuries to Personal Property - Trespass to Chattel for minor dispossession
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Nominal damages for loss of use
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Injuries to Personal Property - Restitutionary Remedies
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Replevin, quasi-K CT, EL, mandatory injunction
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Injuries to Real Property
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1. Trespass to Land
2. Encroachments 3. Destruction of or injury to realty 4. Destruction of or interference with easements 5. Waste 6. Nuisance |
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Injuries to Real Property - Trespass to land
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Simple, trespass causing severance, trespass causing other injury, trespass effecting ouster
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Simple trespass
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- Nominal if no qactual damages
- Injunction to avoid multiple suits - Restitution |
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Trespass causing severance
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- Decreased land value or conversion measure
- Replevin - Restitution (value of property severed) - Injunction |
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Trespass Causing Other Injury
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- Cost of removing if trespass by object
- Rental value if trespass by person - Mandatory injunction if damages inadequate |
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Trespass effecting ouster
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- Ejectment
- No injunction |
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Encroachments
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- D's structure invades P''s land or airspace
- Damages: if continuing, rental value of P's land. If permanent, FMV of P's land - Ejectment not available bc impracticable. - Injunction is available if legal remedies inadequate. But, you have to balance the hardships if D's encroachment inadequate. |
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Destruction or injury to Realty
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- Decreased value of land if damaged
- If building destroyed, P can recover its value at destruction - If trees/ crops destroyed, damages either dimiuntion of value of land or value of crops/trees |
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Destruction of or Interference w/ Easements
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Damages -
If destruction, decreased value of land. If Interference, cost of restoration and loss of use. -Injunction possible if easement recognized at law. |
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Waste
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- Injuryto realty by one in rightful possession againstinterst of one entitled to future possession.
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Voluntary Waste
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- Deliberate destructive acts. Damages are decreased value of land or cost of repair or injury.
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Permissive waste
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Premises allwed to fall into disrepair. Damages = cost of repair.
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Ameliorative Waste
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Alterations to realty that increase value. NO damages. Injunction// short-term tenant.
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Equitable waste
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Those not chargeable w/legal waste effect material changes to premises. Remedy = Injunction
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Nuisance
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Damages = loss of use & enjoyment, costs of abatement, ED. No Future Damages.
Negative Injunction = Damgages inadequate bc land unique & multiplicity possible. Hardships usually not balanced bc nuisance intentional |
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Damages for Personal Injuries
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- Compensatory
- No restitution - Injx only if cont'ing course of conduct. - Economic losses (special damages) - Non- Economic losses |
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Economic Losses (special damages)
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- Recover all economic losses proximately caused.
- Recover in lump sum & future losses discounted to present value. |
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Non-Economic Losses
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Pain & suffering, ED, loss of enjoyment.
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Limits on damages for PI
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- Duty to mitigate
- Collateral source |
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Defamation damages
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- No injx
- No restitution - Declaratory relief to protect reputation - Damages |
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Privacy damages
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- Damages for mental anguish
- No restitution - Injunction for continuing harm |
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Fraud Damages
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PUnitive if malice
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Business tort damages
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- Inducing br/K = damages for proximately caused losses.
- Interference w/ prospective advantage = restitution - Trade libel = special damages must be proved by P, no injunction |
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Contract Remedies
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- Damages
- Restitution (quasi-K) - Specific Performance - Rescission - Cancellation - Reformation |
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Compensatory damages
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- $ to protect P's expectation interest
- Damages must be causal, foreseeable, certain & unavoidable. - Foreseeable at time K entered. - NO punies - Interest & fees if by stat. or K |
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Restitution for Quasi-K
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Measure of benefit.
If a material breach, the neon breaching party can recover value of performance or value of benefit conferred in excess of OPY's damages. If K unenforceable, specific restitution available for recovery of tangible property. If benefit, goods/services, P can recover value of them. |
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Specific performance.
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- K must be valid w/definite and certain terms.
- K conditions of P fully satisfied. - Legal remedy inadequate - Decree feasibly enforced - No defense available |
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Legal remedy inadequate
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Liquidated damages can still be inadequate bc they are not intended as an alternative to performance.
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Defenses available to null specific performance
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- Laches
- Unclean hands - Hardship: inadequate consideration coupled w/ unconscionable K OR consideration grossly inadequate OR disproportionate hardship to D w/specific performance - Mistake & misrepresentation that = hardship or basis for rescission. |
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Rescission
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- Cancels contract resulting from fraud, mistake, duress, or where K is materially breached.
- Usually accompanied by restituion of the benefits confered. - Terminates K and restores both parties as though K didn't happen. |
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Procedures for Rescission at Law and in Equity
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At law = by parties. P notifies D and gives back anything received in K. Then, can seek restitution in quasi-K or replevin.
In equity = by court decree bc necessary |
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Ground for rescission
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- Things that would make it voidable
- Mistake in formation - Misrepresentation |
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Mistake in formation for rescission
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- Rescission for mutual mistakes affecting basis of the bargain.
- For unilateral mistakes, only if OPY knew or should have known |
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Misrepresentation
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Rescission if shwo reliance on material representation
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Defenses
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- Laches and unclean hands
- Election of remedies - Choice of substantive rights |
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Election of remedies: rescission
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- Action for damages affirms K if sought first, bars subsequent axn to rescind.
- Action to rescind does not preclude seeking damages, but P must elect one form of relief before judgment |
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Choice of substantive rights: rescission
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no rescission if P affirms K by word or conduct
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Cancellation of K
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Only if VOIDABLE
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Reformation of K
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- Equitable remedy to modify K to relect parties' actual intent.
- Valid original K req'd |
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when is a K valid for reformation?
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- Free from rescission grounds
- Not ambiguous or incomplete - Cannot use to fill in terms required by SOF. - Not if there's mutual mistake re: the meaning of the words |
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Grounds for reformation
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- K does not reflect parties' valid agreeement bc of mistake or fraud.
- If the mistake relates to entering agreement in first place, must use rescission. - Mistake = clerifcal error or re: legal meaning of term. - K fraudulently represented as a reflection of parties' agreement |
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Defenses
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Laches, sale of subject matter to BFP
- Parole evidence rule, SOF, and P's negligence are NOT defenses. |
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Damages for Ks to buy/sell personal property
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- Damages generally adequate
- Specific performance if unique items or damages too speculative. |
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Damages for Ks to buy/sell real property
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- Damages
- Restitution - Specific performance |
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$ damages for Ks to buy/sell realty
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- If S breaches, B gets out of pocket loss OR benefit of the bargain.
- If B breaches, S gets FMV - K price + consequentials |
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Restitution damages for Ks to buy/sell real property
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Restitution if fraud or material breach --> rescind and get restitution.
- Reocvery by B offset by value of use of land - S's recovery conditioned on restoring part payments - Defaulting B recover payments in excess of S's damages (to avoid forfeiture) |
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Specific Performance for Ks to buy/sell real property
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- Inadequacy of legal remedy bc land is unique
- Feasibility of enforcing - Satisfaction of conditions - Defenses |
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Feasibility of enfocing in land K
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- Suit by S to enforce by levy of execution or foreclosure
- Suit by B - court can effect onveyance of land in jx |
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Satisfaction of coniditions in SP for land K
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- S must show marketable title to get SP
- Time is of the essence - Tender of note by B's assignee (not fulfillment of condition precedent) - Partial performance w/abatement |
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Time is of the Essence for SP in land Ks
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Where K wholly executory:
- Late P cannot get SP Where K partly executory - Equity may grant defaulting B SP if payment is forthcoming w/in r/able time, S's loss is slight, full compensation is tendered for the delay & enforcing time condition unconscionable |
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Partial performance w/Abatement for SP in land ks
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- Arises where S cannot fully perform
- Where S sues: SP only if defect is immaterial & B compensated for deficiency - Where B sues: SP even if defect material unless so large court making newK. SP, but no abatement where selling price based on income generated from land income unaffected by defect. |
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Defenses for damages for land Ks
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- SOF
- NO SP if oral - Exception for part performance consisting of possession plus payment or possession plus improvements. - Laches - Unclean hands - Sale to BFP |
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Equitable conversion problems
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Death of party:
-if S dies, title to person entitled to S;s real property & price to person entitled to S's personal property. B must join S's adminstrator & heir in suit for SP. - Bdies, interest in land to person entitled to B's real property. S must join B's administrator & heir in suit for SP - B & S die. Their heirs and administrators must be joined for SP |
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Construction K Damagesif Owner Breaches
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Builder gets lost profits if K executory, K price if completed K price - cost to complete if partial performance.
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Construction K damages if builder breaches
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- If B has substantially performed, owner recovers cost of restoration unless would produce waste. If waste, recovery is diminution of value.
- If B materially breaches, owner gets cost of completion less payments due, plus compensation for delay. |
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Restitution damages for construction k
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- Owner breaches, B can rescind and recover value of benefits conferred.
- If builder breaches, no restitution for owner. |
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Specific performance for Construction K
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Supervision problems.
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Damages for Personal Services Ks
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EE br/k= ER gets cost of finding replacement.
ER br/k= EE gets wages due/promised - avoidable damages |
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Restitution for Personal Services K
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ER br/k = EE gets r/able value of services rendered.
EE br/k = ER gets restitution of paid but unearned wages |
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Negative covenants during term of employment K
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Court may specifically enforce EE's promise not to work for another.
- Promise implied if EE promised full-time or exclusive services. - Must show damages inadequate - Conditions to EE's performance must be satisfied. - Defenses include those available against SP |
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Negative covenants after termination of employment
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Promises in employment Ks restricting EE from competing or for certain period following employment
- Damages adequate where EE's services are ordinary but not if services are unique or trade secrets, or if good will involved. - Injunctive relief appropriate where damages inadequate & restriction is r/able as to time and place and is no broader than necessary to protect employer. |