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INTRODUCTION; DAMAGES
Exam Tip 1: Remedies is a frequently tested topic on the California Bar Exam.
It may be tested independently or with other topics.
Example 1:
One of the questions on the July 2014 Exam involved two parties:
Mark and Carol. The prompt provided that Mark and Carol were liable in Tort
and Contract. The examiners then asked for the remedies the party might
obtain against Mike and Carol. You would not get credit for analyzing Torts or
Contracts. This is a pure Remedies question because that is what the examiners
asked for in the prompt.
Example 2:
question. It asked examiners to analyze both intentional torts and the remedies.
Exam Tip 2: The bar examiners want to determine whether you are qualified
to advise clients. Clients are seeking a fix to their legal problem.
Exam Tip 3: Demonstrate basic math when given dollar amounts in the
prompt.
A. Overview
1) Damages: the most commonly tested remedy
2) Injunctive relief and other equitable remedies
3) Restitution
Choose the remedy that puts the plaintiff back or keeps the plaintiff in the position he
would have been in but for the _____________________
B. Damages in General
Monetary relief intended to compensate the wronged party, for that wrong, based on what the
party lost
T --------------------------------------0------------------------------------ C
Status Quo Ante
1. Torts
o
o
o
2. Contracts
o
o
C. Types of Damages
1. Compensatory Damages
o
Her compensatory damages would cover pain and suffering including the loss of
her legs.
Note 1: Recovery for pain and suffering requires the plaintiff to experience the
pain and suffering.
Example 4:
pain and suffering, a defendant might argue against recovery of pain and
suffering damages. However, if the plaintiff can experience pain in any
insignificant way, she can recover pain and suffering damages.
Note 2: A plaintiff cannot recover pain and suffering after his death because he
cannot experience pain and suffering. A wrongful death action might be the
appropriate compensation.
Example 5:
In addition to pain and suffering, she can also seek hedonic loss damages.
Hedonic loss damages: Loss of the enjoyment of the value of life or loss of the
enjoyment of the value to feel something happy.
Note 3: In California, hedonic losses are part of pain and suffering damages.
Example 6:
from the anxiety she experienced during the accident, anxiety she experiences
now when she is near a subway, and any of the depression, fear, or anxiety she
feels now because of the loss of her legs.
If there is no physical injury, the defendants conduct must have been outrageous or
____________________________________ (beyond the standard of negligence)
3) Medical Expenses
Exam Tip 4: If there is any sort of physical harm, include a distinct section
about medical expenses even if there is no given dollar amount
4) Loss of Income
CHAPTER 2:
DAMAGES (CONTD)
Put the plaintiff in the position she would have been in had the contract been
______________________________________
Formula: (MP - KP) + (C/I D) - ($ saved) = Expectancy Damages
1) Subtract the contract price (KP) from the market price (MP) of the goods
2) Add any additional consequential damages (C) and/or incidental damages (I)
3) Subtract money the plaintiff could have saved
Examples:
On August 31, Bob contracts with Seller Sally to buy $1000 worth of apples from
her apple farm to be delivered on October 2. Sally will charge Bob a $200
delivery fee in addition to the cost of the apples.
a.
Seller Breaches: September 30, Sally tells Bob she cannot sell him any
apples because a pest destroyed most of her crops. The market price for
the same amount of apples on that day is $1,200. Bob sues Sally for breach
of contract. What are his compensatory damages?
i. MP = ________________________
Note 6: Market price is determined on the day the buyer learns of the breach.
ii. KP = _________________________
Assume Bob lost three days of sales as a result of Sally not delivering the apples.
Bob can determine with clarity that he lost $500 worth of profits. Bob also paid
$50 in overtime for a worker to move an apple display from the front of his
market.
Note 7: Consequential Damages: Any damages that naturally result from the
sellers breach.
Note 8: Incidental Damages: Costs leading up to the breach in reliance on the
contract.
Note 9: Buyers Damages: cost to inspect and receive the goods, the cost of
alternative transportation, the cost of returning the apples, etc.
Note 10: Sellers Damages: the cost of stopping delivery or production,
transporting goods to another buyer
Exam Tip 5: For the bar exam, you can discuss consequential and/or incidental
damages together. Anything that naturally results from the breach or costs
incurred leading up to the transaction will be consequential/incidental
damages.
iii. C/I D = ________________________
iv. $ Saved = __________________________
v. TOTAL Compensatory Damages: _____________________
Exam Tip 6: Explain every step and show your work!
b.
Buyer Rightfully Rejects: Instead of Sally telling Bob that she would not
deliver the apples on September 30th, Sally delivers the apples to Bobs
store on October 2. Bob finds the apples are pest-infested. Does the
calculation for expectation damages change?
i. Answer: ________________________.
Note 11: When the buyer rightfully rejects the goods, or learns that there has
been a breach, or justifiably revokes acceptance, the buyer is entitled to the
same expectation damages.
c.
Assume the market price did not change from when Sally called Bob on
September 30th to tell him she could not deliver the apples to October 2
when she delivered the pest infested apples.
i. Bob is entitled to the same amount of compensatory damages: $550
Note 12: Under the UCC, Bob has the right to the above compensatory
damages. Plus, he has the right to sell the goods.
Note 13: After the seller breaches, the buyer has several options. First, he can
take no action and recover expectation damages. Second, the buyer can cover.
Third, he can accept the goods and sue for breach of warranty.
d.
Buyer Covers: On October 1, Bob finds another seller from which to buy the
same type and amount of apples for $1300. The new seller will charge Bob
$100 to deliver the apples because this sellers farm is closer than Sallys.
This seller will also charge Bob a rush fee of $50. What are Bobs
compensatory damages?
i. Formula: (CP - KP) + (C/I D) - ($Saved) = Expectation Damages
ii. Cover price (CP) = ___________________________
Note 14: Cover Price = the cost to replace (cover) the goods.
Note 15: The cover price might be greater than the market place. The cover
price is still considered because we want to incentivize people to mitigate their
losses.
iii. KP = _________________________
Note 16: If the buyer accepts nonconforming goods, the buyer can sue for
breach of warranty.
i. Formula: (Value as warranted value as accepted) + (C/I D) - ($Saved)
= Expectation Damages
ii. Value accepted: ________________________
iii. Value as warranted: ___________________________
iv. Difference: ________________________
Note 17: Continue the formula with consequential/incidental damages and any
money saved to find the total expectation damages.
Exam Tip 7: Always start your analysis with compensatory damages.
CHAPTER 3:
DAMAGES (CONTD)
2. Restitutionary Damages
o
o
Appropriate where there is a total breach of contract by the defendant that results in
the defendant being in a better position
3. Nominal Damages
o
o
o
The plaintiff has established all other elements of a cause of action but cannot show great
harm or loss
Why are nominal damages ($1) available?
Nominal damages are not available when the cause of action requires the plaintiff to
establish more than nominal damages.
Example 8:
4. Punitive Damages
a. In Tort
These damages are not meant to restore the plaintiff, they are meant to punish and
deter
Punitive damages cannot deprive the defendant of the protection of the Fourteenth
Amendment Due Process Clause by imposing a ___________________ excessive
punishment.
The following facts are considered in determining whether punitive damages are
grossly excessive:
o
o
o
Reprehensibility:
o
o
o
Look for facts that the harm was __________________________ rather than
purely economic
Look for facts where the tortious conduct demonstrated an indifference to or
________________________________ of the health and safety of others
Look for particularly ____________________________ defendants or victims
(financially or physically)
o
o
Look for conduct happening multiple times suggesting we should punish the
defendant or deter others
Look for the _______________________ requirement rather than mere
negligence or accident
Exam Tip 10: Punitive damages are an option in tort when the conduct has
been egregious. You can tell from the fact pattern that the defendant
intentionally acted in a way that deserves punishment.
b. In Contract
5. Liquidated Damages
o
o
o
o
o
o
o
o
o
o
o
Paul left for the winter. As a result of the winters normal rainfall, the stream
overflowed, causing water to rush down to Pauls house at the other end of the
lot, flooding his garage and damaging a 3-year-old motorcycle.
Paul returned in the summer and learned what had happened. It will cost
$30,000 to remove the trees. The trees presence on the lot has depressed its
market value from $50,000 to $40,000. It will cost $5,000 to repair the
motorcycle, and $4,000 to buy a new one.
What torts did Doug commit? What remedies can Paul seek?
a.
b.
Restitutionary damages:
i. Doug received a benefit by not hauling the trees to the nearby lumber
mill. Doug was given a gift (or unjustly enriched) by not taking the
trees all the way to the mill.
c.
Punitive damages:
i. Paul graciously told Doug he could trespass across Paul's land to move
the trees to the mill. Doug intentionally dumps the trees on Paul's
land. Assuming you discussed the available torts, and established
compensatory damages, punitive damages could be awarded if
proportional to the actual damages (a single-digit ratio to either
$10,000 or $30,000).
d.
Nominal damages:
i. Not an issue because we are told the actual damages are either
$10,000 or $30,000.
ii. Might be appropriate if the fact pattern does not include damages or if
there is some reason compensatory damages fail. The purpose of
nominal damages in this case would be to "hook" punitive damages.
CHAPTER 4:
LIMITATIONS ON DAMAGES
Discuss whether the harm to the plaintiff was reasonably __________________________ at the
time the defendant breached its duty
If the plaintiffs harm comes from a risk that was not reasonably foreseeable, the defendant is
not liable for this harm
C. Causation (Cows)
______________________ the defendants conduct, the plaintiff would not have suffered injury
Consequential damages may be recovered only if they were within the parties
______________________________ or reasonably should have been at the time of the contract
Example 14: A travel company put an ad in the phonebook saying every
person listed in the phonebook was entered to win a free golf trip to Scotland.
Polly listed her name in the phone book and was informed that she had one the
free trip. Polly purchased a bottle of champagne, new luggage, and golf clubs.
She also quit her job after her boss declined to give her two weeks of unpaid
vacation. The travel company then told Polly that it could not send her on the
trip. All of the harms to Polly were consequential (resulting from the travel
companys breach).
a.
Purchasing the champagne, luggage, and golf clubs were foreseeable and
reasonably within the travel companys contemplation at the time it ran the
advertisement.
b.
Pollys loss of income was not reasonably foreseeable. The travel company
did not expect that she would quit her job to go on a free two-week
vacation. So, Polly should not receive damages for her loss of income.
E. Certainty (Cheese)
Exam Tip 11: Certainty is one of the most frequently tested damages limitation.
To recover damages in tort or contract, the plaintiff must establish these damages with
_______________________________ certainty.
In tort: damages must be proven by a preponderance of the evidence (more likely than not)
o
Established business: plaintiff can more easily show lost profits using previous years
New business or new line of business: it may be difficult for the plaintiff to prove lost
profits damages with reasonable certainty
The plaintiff can be denied recovery for any harm or loss she could have
___________________________ avoided.
Exam Tip 13: If all else fails, discuss whether each potential category of
damages in the fact pattern is reasonable.
The burden is on the _____________________________ to show that the plaintiff could have
reasonably avoided the harm or loss.
There is no affirmative duty for the plaintiff to avoid future harms or losses. However, the
defendant can raise it to reduce damages.
Example 15: A boy kicked another boy in the leg. The plaintiff was an eggshell
plaintiff and lost his entire leg. The defendant was liable for the loss because in
general, an injury was foreseeable, even though the specific type of harm
(losing a leg) was not foreseeable by the defendant.
Example 16: Instead of being an eggshell plaintiff, the boy had a more normal
response to being kicked (bruises and cuts). If that injury became infected and
plaintiff did not seek medical attention, and as a result of not seeking
treatment, the plaintiff then lost his leg, the defendant might seek a reduction
in damages. The defendant can argue that the plaintiff could have reasonably
avoided losing his leg by seeking medical attention.
Example 17: A city contracted with a company to build a bridge. The company
spent $1,900 in labor and materials in anticipation of building the bridge. The
city breached the contract because the bridge was no longer needed. The city
repudiated the contract. What was the company entitled to?
a.
The company was entitled to recover the $1,900 in labor and materials.
b.
The company was also entitled to lost profits ($8,000 in anticipated profits).
Example 18: If the company continued to build the bridge despite the
repudiation and spent an additional $10,000, the avoidable consequences rule
would limit their damages. The company could have reasonably avoided these
additional costs.
Her costs incurred in trying to avoid additional damages can also be recovered as damages
The plaintiffs recovery is reduced by the benefits that result from the defendants
_________________________. But not by the benefits obtained from collateral sources or
other sources.
If the defendants breach results in a savings to the plaintiff, this savings is subtracted from the
overall damages recovery.
Example 20: Bob saved $100 on the delivery charges because the second seller
was closer to Bobs store.
Close nexus: The benefit must stem from the tort or relate to the same interest of the
plaintiff that was injured and the benefit the plaintiff wants.
o
o
Collateral source rule is not frequently applied in contract actions. It can arise in cases of
breached employment contracts where the plaintiff receives unemployment benefits or
insurance.
H. Emotional (Eats)
I. Interest
J. Litigation Expenses
Expenses from previous lawsuits are recoverable as damages if the defendants tortious conduct
caused the litigation.
Example 24: Malicious prosecution
CHAPTER 5:
It can serve as a final remedy for the plaintiff (permanent injunction) or as a stop gap to
______________________________ the status quo through litigation
A. Prejudgment Injunctions
Often sought to prevent irreparable harm or maintain the status quo until the action is resolved
An injunction for a very short amount of time; typically no more than __________________
May be applied for ex parte so the defendant might not have notice
Primary purpose: ___________________ the status quo until a preliminary injunction can
be decided
A TRO cannot be appealed
A TRO is not effective until the defendant has notice
2. Preliminary Injunctions
o
o
o
An injunction issued before or during a trial that is generally effective until there is a
_______________________ judgment by the court
The preliminary injunction is also known as a temporary or interlocutory injunction
Cannot be issued unless the defendant has been given _____________________ of the
hearing and an opportunity to be heard.
o
o
Damages are preferable, partially because damages require less court oversight
Look for items that have special value that cannot be replaced easily
Example 25: Family heirlooms, 1989 Porsche Targa in mint condition, Real
property, voting rights cases
Analyze the underlying claim and determine whether there is a likelihood that P will win.
Exam Tip 14: If you already addressed the underlying claim in your essay, say,
see above. Or look for language in the prompt that the plaintiff is likely to
succeed.
Request can be denied if the it is not feasible for the court to enforce the injunction.
Look out for fact patterns that require affirmative action rather than prohibiting action
Example 26: An injunction requiring a construction company to continue
constructing (as opposed to prohibiting construction).
If the court requires action it will necessarily have to monitor compliance continually
If the court prohibits action, the court is not required to intervene unless the
defendant violates the injunction
When the underlying rights are sufficiently important, the court is more likely to issue
injunctions requiring affirmative action
Example 27: Voting rights, discrimination
f.
Defenses (Down)
1) Violation of fundamental rights
Example 28: Freedom of Speech
B. Equitable Defenses
The court can refuse to apply these if there are countervailing equitable considerations
These defenses are not related to the plaintiffs substantive legal claim
These defenses do not prevent a plaintiff from bringing an action for damages
1. Laches
o
o
2. Unclean Hands
o
The plaintiff is not entitled to an equitable remedy because he has acted in bad faith with
respect to the subject of the complaint
C. Permanent Injunction
Permanent injunctions are awarded after the plaintiff has won on the merits
The factors are the same excluding the probability of success on the merits:
o
o
o
o
Irreparable harm
Feasibility of enforcement
Balancing of hardships
Defenses
CHAPTER 6:
A. Specific Performance
Generally not available unless a defendant has breached a contract through nonperformance or
repudiation.
Consider whether the specific enforcement would impose burdens on the court that
are disproportionate to the advantages gained by its enforcement
Look for facts that require the court to be involved for a long time or intrusively
involved.
If the contract allows for liquidated damages instead of specific performance, then
the court will award the liquidated damages
If the liquidated damages provision does not preclude specific performance, analyze
both
The availability of other equitable remedies does not bar performance, although
courts generally disfavor specific performance.
6) Defenses
B. Rescission
Rescission at law: plaintiff must, prior to filing the suit, and promptly upon the discovery of
grounds for rescission (mistake or fraud), give ________________________ of rescission to the
defendant and ___________________________ or tender the benefits
o
o
A plaintiff that fails to act promptly may nevertheless rescind the contract if the defendant
has not been prejudiced by the delay.
In addition, the plaintiff may be excused from retuning the benefit if:
The benefit has been disposed of prior to discovery of grounds for rescission;
The benefit is presently worthless; or
The benefit was money and in proportion to the amount owed by the defendant to the
plaintiff
Once a contract has been rescinded, the plaintiff may pursue a subsequent action at law
o
o
C. Reformation
The agreement must not be voidable for other reasons (such as misrepresentation or
fraud)
Sufficiently certain for the court to know how the writing should be reformed in
accordance with the parties intended agreement
Mutual mistake: the writing does not match the agreement and both parties are
unaware of the discrepancy
Effect mistakes: a mistake by both parties about what the effect is of the writing
Where there is a mutual mistake, any party to the contract can seek reformation,
including an intended beneficiary or successor-in-interest
The party does not have to show that the mistake resulted in an inequity adversely
impacting him (unlike when a contract is avoided entirely)
Unilateral mistake: only one of the parties is mistaken as to the content or effect of a
writing
Reformation turns on whether the other party was aware of the mistake;
o
If he was aware of the mistake (whether the party fraudulently induced the
mistaken party or does nothing to correct the mistaken partys erroneous belief)
the mistaken party may be able to reform the contract
If the other party was not aware of the mistake, reformation is not allowed
Defenses
o
o
Innocent third parties can prevent the court from reforming the contract if doing so
would adversely affect the partys rights
The parol evidence rule does not prevent a party from presenting evidence of a prior
agreement to establish fraud or mistake
The Statute of Frauds does not prevent the reformation of a contract
Example 30: Reformation is not foreclosed by the Statute of Frauds when the
parties mistakenly omitted or incorrectly stated an essential term required by
the Statute of Frauds
A party who, due to negligence, failed to avoid a mistake, can still seek reformation of a
writing
CHAPTER 7:
A. Declaratory Judgment
Declaratory judgment can be combined with other forms of relief (such as injunctive relief)
In either case (whether a cause of action or as part of damages) restitution is available when the
defendant has been unjustly enriched at the plaintiffs expense
The defendant has received money, real or personal property, services, a debt satisfied,
savings that would otherwise have been spent
Unjust: it is not necessarily unjust that the defendant has possession of the benefit, it is whether
it would be unjust for the defendant to keep the benefit
o
Look for facts where the defendant has wrongfully acquired the benefit or done something
wrong
Even if the defendant acquired the benefit without any fault, it can still be unjust
enrichment
Example 31: An unconscious accident victim receives free medical care. She
would be unjustly enriched from this medical care even though she did not do
anything wrong.
1. Remedies
a. Monetary judgment
Look at recovery based on the extent to which defendant has been unjustly enriched at
the plaintiffs expense
o
o
o
o
Value of benefit;
Cost to the plaintiff of conferring the plaintiff;
The market value of that benefit; and
The price fixed in the agreement in a contract action
The plaintiff has the burden of producing a reasonable approximation of the amount of
gain that the defendant received
Wrongdoer Without Fault: a defendant who commits a tort but does not do so
purposefully
Example 32: Innocent conversion, unconscious trespassers, unwitting donees
of embezzled funds.
Not a Wrongdoer but responsible for the transaction (for example a responsible
recipient) may be subject to greater liable than the innocent recipient
Might arise out of lack of care, breach or repudiation of contract, bad faith or other
reprehensible conduct
b. Constructive Trust
Imposes a duty to convey property to the plaintiff if the defendant would be unjustly
enriched by keeping it
It gives the plaintiff back the specific property, not money
As is, As if Trust
Requirements:
The plaintiff can trace the unjust enrichment to the property the plaintiff wants a
constructive trust over
Example 33: The plaintiff cannot obtain a constructive trust over property
someone stole but does not have title for.
The plaintiff can obtain a constructive trust against a third party transferee who
has title to the property unless that party was a bona fide purchaser
Example 34: The defendant is bankrupt. The plaintiff must compete with the
defendants other creditors and might not recover. But, if the plaintiff can trace
his property to an identifiable asset, the plaintiff might gain priority over it.
Example 35: The defendant has purchased an identifiable asset with the
plaintiffs money and now that asset has increased in value.
Example 36: The defendant has transferred the defendants property to a third
person and the plaintiff wants to pursue a claim against the third person to
return the item.
If the property has increased in value, the plaintiff is not required to account to the
defendant for the increase in the value of the property
The defendant _________________ liable to the plaintiff for any decrease in value
during the defendants possession
Example 37: George steals Ruths diamond ring and sells it to a pawnshop for
$3,000. With that money, George take a trip to Vegas and while gambling, hits
a $20,000 jackpot. He takes this $20,000 to buy a new car. George has used
Ruths $3,000 to earn another $20,000. Ruth could seek monetary damages for
the market value of the ring. The market value of the ring is $6,000. If George
cannot pay the $6,000, a monetary judgment is inadequate.
a.
Ruth can seek a constructive trust over the new car even if the car is worth
more than Ruths ring.
b.
Ruth could not get a constructive trust over something George owned
before he stole from Ruth.
Look out for intermingling of funds, the plaintiff must trace the property
Example 38: George puts the $3,000 from the sale of Ruths ring into a bank
account. The account already had $2,000. Then, George withdrew $3,000 from
the bank account to go to Vegas. George would try to argue that Ruth should
not recover the entire $20,000 in gambling winnings because the first $2,000 in
the bank account was his and he only used $1,000 of Ruths.
Example 39: In the above example, Ruth would argue that the first $3,000 out
of the bank account was the same $3,000 form selling Ruths diamond ring.
c. Equitable Lien
Recognizes the plaintiffs claim against the defendant and imposes a lien on the
defendants property as security for that claim
A lien is a monetary judgment secured by defendants property
An equitable lien is issued by the court (as opposed to negotiated by the parties)
Typically, arises in _______________________ disputes
Requirements:
Example 40: George steals Ruths diamond ring and sells it to a pawnshop for
$3,000. With that money, George take a trip to Vegas and while gambling, hits
a $20,000 jackpot. He takes this $20,000 to buy a new car. Ruth can ask the
court for an equitable lien on Georges car if he does not pay her the $6,000
market value for her ring.
Decline in Value:
Example 41: George crashes his new car and now its worth $1,000. If Ruth
obtained a constructive trust over the car, she would only recoup $1,000.
Use an equitable lien (money judgment secured by property) when the property has
_________________________ in value
The plaintiff can seek satisfaction of the remaining portion of the claim from the
defendant _______________________________ after the property has been sold
and the proceeds given to the plaintiff
Example 42: Same facts as above except Ruth gets an equitable lien on the
$1,000 car. She can also seek satisfaction of the remaining damages from
George personally.
Tanners remedies:
i. Note that Frank stole $40,000 from Tanner, commingled it with Marys
money, and purchased property over which he has
____________________.
ii. When he sold the property, it had increased in value from $40,000 to
$300,000. Since Tanner can trace his property ($40,000), to something
worth more in value, Tanner should seek a
________________________________ over half the value of the
$300,000.
iii. Tanner would not want to seek an equitable lien because he wants to
take advantage of the increase in value.
iv. Franks defense of unclean hands will not work against Tanner because
there is no evidence that Tanner has unclean hands.
v. Frank might assert the defense of laches. Tanner discovered the
embezzlement in 2005 but did not seek an action until 2012.
CHAPTER 8:
Permits the plaintiff to stand in the shoes of a creditor or lien holder if the plaintiffs
property was used to discharge an obligation or lien on the property of the defendant
The defendant must be unjustly enriched
The enrichment takes the form of a ______________________ of an obligation or lien
Example 43: George takes Ruths ring. He sells the ring to a pawnshop for
$3,000. He uses that $3,000 to discharge (or pay off) his car loan. Ruth can
stand in the shoes of the car lender.
This frequently results in the plaintiff having priority over the defendants other
creditors
Example 46: The benefit has been lost, stolen, or destroyed and cannot be
returned. If the benefit is merely damaged or diminished, the restitution may
be reduced under the diminished value rule. The plaintiff can generally seek
additional damages.
Equitable restitution is not available against a bona fide purchaser who takes the
property without notice of all prior equities.
When the plaintiffs mistaken payment to the defendant is used by the defendant to
discharge a debt owed or to otherwise satisfy a valid claim against a third party, the
plaintiff ________________________ seek restitution from the defendant unless:
The defendant had notice of the mistake or made a representation that lead to that
mistaken payment
Unsolicited benefit
Some necessity;
The plaintiff had no reason to know the defendant would not want that intervention
Exceptions:
Emergency
Provision of Necessities
Example 48: Burying a dead person, removing obstruction from a public road
o
o
o
o
o
B. Replevin
Plaintiff can regain possession of the property and recover ___________________ for loss of
use of that property (detention damages)
Example 49: My daughter stole my son's Ironman character. My son says,
"Give it back!" If they were to go to court, my son would simply want the
Ironman character back. My daughter would be required to return the
property. My son could also seek damages for the loss of the use of the
property.
C. Ejectment
Plaintiff is also entitled to damages for any ____________________ caused to the land
during defendant's possession
Example 51: Reduction in market value because the defendant mistreated the
home
D. Election of Remedies
A plaintiff cannot pursue a remedy that is inconsistent with another remedy already chosen by
the plaintiff
Prevents the plaintiff from affirming the contract and then subsequently seeking to rescind
the contract
The election of remedies rule is generally applied only when the defendant has materially
changed position in _________________________ on the plaintiff's affirmation of the contract.
The rule does not apply to the following situations (despite defendant's reliance):
o
Ignorance of a fact:
Subsequent breach:
the plaintiff may obtain another remedy if the plaintiff made his initial choice being
ignorant of the facts or ignorant of the availability of an alternate remedy
Might be due to mistake or misrepresentation
the plaintiff may obtain another remedy based on the defendant's breach of contract if
the breach occurs _____________________ the plaintiff's initial choice of remedy
E. Overall Summary
Contracts
Torts
Property
1.
_________________________
1. Damages
2. Specific Performance
2. Injunction
2.
__________________________
3.
__________________________
3. _________________________
judgment
3. Declaratory
judgment/Injunctions
1. Damages
4. Rescission
4. Restitution
4. Replevin
a. Monetary Judgment
b. Constructive Trust
5.
__________________________
c. Equitable Liens
d. Subrogation
5.
__________________________
Refer to the Remedies Outline for other remedies within common causes of action including:
o
o
o
[END OF HANDOUT]