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I used this for Law School and got an A in Remedies
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Analyzing Tort Problems
1. What is the tort? Intentional or not: (conversion, fraud, misrepresentation, trespass, misappropriation of money,
injuries to personal property, injury to chattels, dispossession of property or chattels, trespass to chattel for minor
dispossession, encroachment, destruction of or interference with easements, waste, personal injury, nuisance,
business torts: inducing breach of K, interference with prospective business advantage, trade libel, negligence)
***dignitary harm/civil rights: Pipus/Levka
2. Damages:
a. Compensatory/actual: (4) Requirements
-Foreseeability (proximate cause)
-Causation (actual Cause/ “but for” test)
-Certainty (not too speculative/past losses need more certainty a historical record) Hatahley: Indian
horse case
- Unavoidable and P has a duty to mitigate (S.J. Groves: concrete case)
b. Categories of Compensatory damages
i. General: compensate foreseeable non-economic loss (i.e. pain and suffering,
emotional distress, loss of enjoyment) do not need as much certainty. P&S can be broken down in a
per diem amount (Debus: cat food case), make whole instruction, or selling-price.
ii. Special: compensate economic losses not necessarily foreseeable and need certainty
(wage losses, medical expenses, lost profits)
3. Nominal: awarded when P can prove no actual injuries but can be used a springboard to punitive
4. Punitive: Awarded for willful, wanton, malicious, fraudulent, oppressive conduct. For corporate gross negligence
or reckless conduct. Need either Nominal or compensatory first then can get this. Can have both punitive and
equitable relief (3 factors) (Gore v. BMW, Grimshaw)
- Degree of reprehensibility (only look at harm to P (Phillip Morris) no extra- jurisdictional evd. (State Farm)
- ratio btw compensatory and punitive damages (9:1 ratio State Farm)
- difference btw punitive and civil or criminal fines
5. Measurement:
- FMV of the item at time of complete loss (Hathley, Fifty Acres: landfill dump case)
- FMV of item prior to harm (-) FMV after the harm (diminution of value)
- Fluctuating value: coins, crops, stocks; FMV at time of harvest (Decatur County: ruined crops case); at
time of highest value.
- Has no FMV: Cost of repair or replacement (Trinity Church)
- A damages award may be discounted if the P does not plan to apply it immediately (Trinity)
- Damages could also be apportioned (Sheldon: playwright infringement case)
6. Limits on Recovery
- Collateral Source Rule: the fact that P has insurance does not relieve D; unless it is D’s
insurance that paid P. (Helfend: bus accident). Subrogation will be needed in order to have P avoid
double-recovery. (also remember Indemnification, & Novation)
- Water’s edge rule: (Pruitt) if P suffers pure economic loss they may lack standing to sue
if beyond water’s edge (i.e. a restaurant that serves seafood)
- Special consequential damages: failure to perform in tort require special or actual notice
to D (Evra: Bank did not have notice that payment needed to be made at a certain time
or else P would lose K)
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RMT attack plan: REMEDIES
- Liability for consequential damages resulting from negligence: proportionate to level of
services one pays for (Norwood failed call to fire dept. caused house to burn down, not liable for house
since did not know why call was so important)
- Cannot repackage a K claim into a tort to get more damages (Formosa Plastics)
7. Statutory Violations: require (1) a finding that the statute has been violated (i.e. the harm to the P is the type of
harm the statute seeks to prohibit) (2) a showing that the remedy is proper under the statute.
- Damages should be measured by the P’s profits before and after the harm not by
comparing two separate businesses (Bigelow)
- damages must be based on harm that comes within the ambit of the statute not some
novel theory (Brunswick)
8. Legal Restitution: (D should not be unjustly enriched)
- Money (Quasi-K, Quantum Meruit for services, Quantum Valebant for goods)
a. Difference from Legal Damages because these are based on benefit to D
b. Cannot be awarded both compensatory and restitutionary damages (mention both on BAR and go with
larger of the two)
b. i. In a infringement action P may recover D’s profits even if D was not in direct comp. (Maier
Brewing)
c. Punitive damages may be attached ONLY if tort action. Measure of damages in cases of misuse of
another’s property based on D’s willfulness. (Olwell: egg washing case)
- Replevin (recovery of specific personal property) (Detinue: i.e. demand for clothing left at dry cleaners)
a. 2 part test: P has right to possession, BUT there is a wrongful withholding by D
b. “Timing”: P can recover chattel before trial, but will have to post bond/ D can keep the chattel until
after trial but has to post a redelivery bond
c. Sheriff repossesses property for P
d. Up to P not D to either get property or money damages (Brook)
e. Almost always coupled with $ damages for lost use or benefit during the time of detention
- Ejectment (recovery of specific real property)
a. Same test as replevin except real property instead of personal property
b. Ejectment available ONLY against D who has possession of property
c. Sheriff ejects D from property
d. Almost always coupled with $ damages for lost use or benefit during wrongful withholding
9. Equitable Restitution: No adequate legal remedy
- Constructive Trust (court imposed obligation on D to convey specific property to P) (Rogers: life insurance 2nd wife
case)
a. D has title and serves as “trustee”
b. D’s acquisition of title traced to property D wrongfully obtained
c. D’s retention of property would cause unjust enrichment
d. Money damages would not be sufficient because property is unique; P can get enhanced value of prop.
- Equitable Lien (court imposed security interest in specific property owned by D) (Robinson: unjust to allow another
to improve your property w/o compensation)
a. D has title and property will be subject to an immediate court-directed sale
b. Monies go to P. Different from trust b/c lien can be imposed on prop. that was improved with P’s money/prop
but already in possession of D.
c. If proceeds less than fair market value of property when it was taken, a deficiency judgment will be issued for
the difference and can be used against D’s other assets
d. Money damages would not be sufficient because the D is insolvent
- General Equitable Restitution Notes:
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a. Tracing allowed for commingled funds (first in/first out; lowest intermediate balance, benefit to claimant)
b. BFP prevails over P; P prevails over unsecured creditors and can get profits. In CALI (BFP cannot get good
title of stolen goods)
- Exceptions: Voidable title (D buys from P with fake money and then sells to C; P cannot get back goods).
Estoppel: If P represents to BFP that D had authority cannot later recover the goods.
c. If original property value goes UP, go with constructive trust; if it goes DOWN, go with equitable lien
d. If D’s property cannot be traced solely to P’s property, ONLY equitable lien is available
10. Coercive Relief /Injunction/also declaratory relief
Process: TRO
a. (TRO) granted in emergency situations (Ex Parte: notice and adversarial proceeding not required but
encouraged) for up to 10 days.
c. In issue is whether P can obtain temporary injunctive relief. To do so, P must meet a two-part test: (i)
Irreparable injury/emergency (discuss facts in time-frame context) AND (ii) Likelihood of success (discuss the
“probability”…impose bond requirement)”
Preliminary Injunction: must have pending action (5 elments)
a. Irreparable harm
b. Balance of hardships unless D had willful conduct (Ariola: willful encroachment)
c. Likelihood of success on merits
d. Interest of general public
e. Maintainence of status quo (9th Cir. Does not require this element)
Permanent injunction: 5 PART TEST (“I Put Five Bucks Down”):
a. INADEQUATE legal remedies: how so?
i. Money Damages may not be adequate because they are too speculative OR D is insolvent OR there is
irreparable injury (if property is unique such as land) OR multiple suits are necessary (prior history of
litigation of this action)
ii. Replevin may be inadequate because Sheriff may not be able to recover property OR D may file a
redelivery bond (and then run off with or destroy property in the interim)
iii. Ejectment may be inadequate because the Sheriff may refuse to act (structure slightly encroaches P’s
property/ Sheriff is not going to tear it down)
b. Is a PROPERY right/interest or privacy right involved?
c. Is an injunctive decree FEASIBLE?
i. Negative Injunction (stop it): No enforcement problems
ii. Mandatory Injunction (do something):
1. May be enforcement problems due to the difficulty of supervision OR concern with effectively
ensuring compliance
2. If act involves great taste, skill, or judgment, injunction will be DENIED
3. If a series of acts over period of time, usually DENIED
4. Out of state act: resident (GRANTED); nonresident (DENIED)
d. Should the hardships be BALANCED? (On BAR when tort is nuisance or trespass to land); 4 RULES:
i. Must be gross disparity between detriment and benefit
ii. Even then, NO balancing if D’s conduct was WILLFUL/Ariola (ex: if encroachment innocent
(including negligent), court will balance but lean toward P)
iii. If you decide to balance hardships, also consider awarding P money damages instead of ripping the
building down
iv. Hardship to PUBLIC is also taken into account (ex: factory causes noise, but close down would cost
500 jobs, award money damages to P instead)
Structual Injunction Corrects organization structure
i. goal of institutional reform
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RMT attack plan: REMEDIES
ii. alteration of institutional structure than behavior
iii. its complexity
iv. impact on society groups
v. establishment of ongoing relationship btw the court and D
Consent Decree: voluntary agreement btw parties to a suit.
i. once final it is binding on the parties and cannot be reviewed absent a showing of significant change in legal or
factual circs, or consent was obtained by fraud, mutual error or failure of consent. (Rufo)
e. Are there DEFENSES?
i. Laches/and SOL
1. “Running of a period of time” defense
2. SOL focuses on passage of time, Laches focuses on effect of passage of time and never greater than
SOL
3 Laches rules: (1) clock starts when P knows of injury; (2) P’s right to relief cut off when it has been
BOTH unreasonable and prejudicial to D; and (3) if laches applies, consider giving P money instead (not
fair to give P a gift of land) (NAACP)
4. Remember delayed discovery rule: (1) knowledge of injury (2) knowledge of what can cause injury (3)
knowledge of relationship btw conduct and injury
ii. Unclean Hands
1. Defense available ONLY if P’s improper conduct related to lawsuit
iii. Freedom of Speech
1. 1st Amendment rule against Prior Restraint (see exceptions for national security, and for trade libel,
particularly in conjunction with another business tort)
2. If tort is defamation or a privacy publication branch tort (false light, private facts), best BAR answer is
that the injunction is DENIED based on free speech grounds (assuming D is not guilty) (Willing)
iv. Impossibility (impossible for D to carry out terms of Injunction)
1. No injunctions will be issued for possible harm (Humble Oil)
2. For permanent injunction need recurring violation not just possibility of recurrence.
3. Scope cannot be too broad (Goodyear)
v. Criminal Act
1. “Equity will not enjoin a crime” (exceptions for public/private nuisance and partial exception for crime
that also constitutes a tort”
4. Who will be bound by injunction?
a. Parties
b. Employees and agents acting with notice
c. Third persons acting with notice
5. What about an erroneous injunction?
a. If injunction is one that would no longer be granted (law or facts changed), it still has to be followed unless it
modified OR dissolved or can try declaratory relief (Birmingham)
b. Collateral Bar Rule: one cannot break the law b/c they believe it is unconstitutional
6. What if the injunction is not obeyed? (Contempt)
i. Direct: in front of judge; no DP
ii. Indirect: violation of order (1) valid order (2) knowledge of order by D (3) ability to render compliance (4)
willful disobedience.
a. Civil Compensatory contempt: Money award for P when D breaks order
b. Civil Coercive contempt: fines or money to coerce D to comply less DP since D holds keys to cell
c. Criminal contempt: money fine OR imprisonment (D cannot get out/ remain for set time)
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RMT attack plan: REMEDIES
7. Injunctive relief is almost always coupled with money damages (for injuries incurred in the time period prior to
obtaining the injunction)
11. Other forms of Relief
i. Declaratory Relief
1. Federal declaratory relief may be given when threat of enforcement of a disputed state statute exists, but must
have act for this in the JX (Steffel)
ii. Attorney’s Fees: usually awarded to prevailing party and are provided for via contract or by statute/ordinance.
1. If not in K or statute then American Rule.
2. Use Lodestar method (rsbl hourly rate * # or hours). (Rivera: fees do not have to be in the same proportion of
damages.
3. Prevailing party: Party that gets money recovery or D gets a dismissal
iii. Bills quia timet: to curb future litigation
1. Injunction against future torts
2. Bills to cancel documents
3. Bills to remove could on title
4. Quite title suits
Analyzing Contract Problems
A. Damages: foreseeable (Hadley v. Baxendale), certain (Hatahley), unavoidable
a. K can exclude a remedy and P cannot opt for better one absent unconscionability (Kearney: bad
machine)
1. Expectation Damages (This is the benefit P expected to get out of contract/ Expectation damages look to the
future) (Chatlos: value as warranted)
2. Consequential Damages (These are related damages foreseeable at contract formation) (reputation fact pattern)
(Hadley, Buck)
i. Interest only rule: Applies in delay in payment cases where delay causes some other damges related to
wholly independent ventures; limited to just interest (Meinrath)
3. Reliance: Amount spent in preparation of Contract (Neri)
4. Punitive: none unless separate tort
5. Liquidated Damages (Ashcraft)
a. These are damages specified in contract
b. To be valid (2 part test): damages must have been VERY DIFFICULT to have ascertained at
time of contract formation AND this clause was a REASONABLE forecast of what they
would be
c. If valid, no other damages available
d. If invalid, only actual damages available
e. Contract cannot state that P can get EITHER actual or liquidated damages (ECI)
B. Legal Restitution: (same as torts: money, replevin, and ejectment) (ejectment rare in actions on contracts)
C. Equitable Restitution (same as torts: constructive trust and equitable lien)
D. Specific Performance (6 part checklist to get this remedy) (Cha Cha Is My Favorite Dance!)
1. CONTRACT is valid
a. P must be able to show the contract terms with more certainty and definiteness than would be
the action for money damages at law. Otherwise, it would be too difficult to enforce
2. Contract CONDITIONS of P must be satisfied
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RMT attack plan: REMEDIES
a. P must be able to show his/her contract conditions have been fulfilled (already performed ready
and able to perform, or excused from performing)
b. Two favorite BAR exam fact patterns for conditions:
i. Deficiencies Fact Pattern (Seller cannot deliver the agreed upon consideration)
1. If SELLER is P: CAN enforce contract is defect minor; CANNOT if
defect major (unless seller can cure the defect before or at closing)
2. If BUYER is P: CAN enforce contract EVEN IF defect is major;
CANNOT if defect is very major
3. If you give P specific performance despite defect, you MUST include
a sentence noting that court will LOWER purchase price to allow for
defect: called an ABATEMENT in purchase price
ii. Time of the Essence Fact Pattern (Buyer does not meet condition of timely
performance)
1. Will probably have a land sale contract with a time of the essence
clause that provides for forfeiture of all performance rendered to date if
not timely; Buyer will probably have made a down payment and now the
Seller wants to keep BOTH the land AND the down payment
2. Equity detests forfeitures (always in BAR model answer)
3. Court will look to these factors in deciding if it should AVOID the
harsh result of a forfeiture: loss to seller is small; tardiness is minimal;
waiver (seller has accepted late payments in past); buyer would suffer
undue hardship
4. ON BAR, ALWAYS award specific performance in this instance
5. Mention in answer that under the modern trend, P would get
restitutionary relief if specific performance were not granted
6. HOWEVER, if buyer has done nothing yet, the time of the essence
clause is STRICTLY ENFORCED
3. Are the legal remedies INADEQUATE?
a. FAVORITE BAR ISSUE: Uniqueness Problem (if property is unique, money damages would
not allow him to purchase another)
i. Real Property
1. General Rule: Land IS unique (even if BAR tries to make each parcel identical)
2. Seller’s Rule: seller of land CAN get specific performance as well even though money
is not unique
ii. Personal Property
1. General Rule: Personal property IS NOT unique
2. Three Exceptions: (one of a kind or very rare; personal significance to buyer;
circumstances make chattel unique, such as OPEC reduces oil production, making gas
unique)
iii. BIG DIFFERENCE: Uniqueness tested at time of litigation NOT formation
c. FAVORITE BAR ISSUE: Liquidated damages clauses
i. General rule: A liquidated damages clause does NOT make money damages adequate. Specific
performance is still available.
ii. EXCEPTION: where clause provides that the liquidated damages are to be the ONLY remedy
4. Is there MUTUALITY of obligation? 3 steps for BAR:
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RMT attack plan: REMEDIES
a. Determine that you have a Mutuality fact pattern: D argues that P should not be able to enforce
the contract against him because he could not enforce it against P (ex: 17 year old enters contract.
He is not of age to make contract, but as long as he is going to perform, no problem) (kid can
enforce but other party cannot)
b. Set out the rule: Court will reject the mutuality argument if it feels secure that P WILL perform
c. Grant specific performance: In your answer, have a decree provide for simultaneous
performance
5. Is a specific performance FEASIBLE?
a. Is there jurisdiction over parties or property? Watch out for land outside state.
b. Is there too much supervision by court?
c. Personal services contracts ARE NOT specifically enforceable (enforcement problem AND
involuntary servitude)
d. Watch out for contract where employee tries to breach and work for competitor
6. DEFENSES?
a. Contract Defenses
i. Mistake
ii. Misrepresentation
iii. Statute of Frauds (fact pattern usually involved oral land contract): Rule: if one renders valuable part
performance (whole/partial payment, possession, valuable improvements, or valuable services-modern trend) then
will take case out of SOF and specific performance will be granted. (need any 2 of first 3 types of valuable part
performance to win)
b. Equitable Defenses
i. Unclean Hands (same as torts)
ii. Laches (same as torts)
iii. Unconscionability (Campbell soup)
1. More than just a “bad deal”; MUST also be some “smell factor” facts that brought it about
2. This is tested at time of contract FORMATION
7. TWO PROBLEM AREAS FOR SPECIFIC PERFORMANCE (not part of checklist)
a. Equitable Conversion
i. When land sale contract entered into, equitable conversion occurs upon execution
ii. Property interests are switched: buyer gets real property interest (land) and seller gets personal property interest
(money)
iii. BAR tricks: fact pattern will have a problem occur between contract execution and the closing (ex: death and
damage/destruction)
iv. Risk of loss: majority rule says risk is on the buyer; minority rule says risk is on the seller
b. Covenants Not to Compete
i. Covenant must protect LEGITIMATE interest of person in whose favor it runs
ii. Services must be UNIQUE
iii. Ordinary auto mechanic: NOT ALLOWED
iv. General manger of car dealership: ALLOWED
v. Covenant must be reasonable in BOTH its geographical and durational scope
E. Rescission (original contract considered voidable and rescinded) 2 STEP ANALYSIS (Good Dog):
1. Determine if there are GROUNDS for rescission (mistake, misrepresentation, coercion, undue influence, lack
of capacity, failure of consideration, or illegality) (ALL relate to contract formation)
a. Mistake
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RMT attack plan: REMEDIES
i. Mutual mistake: if material fact, rescission GRANTED; if collateral fact, rescission DENIED
ii. Unilateral mistake: Rescission DENIED except when non-mistaken party knows of SHOULD
HAVE KNOWN of mistake (mistaken party would suffer undue hardship if no rescission)
b. Misrepresentation (Rescission GRANTED/ P must show it actually relied on misrepresentation)
(Mutual life Insurance case: D lied and said he was not a smoker to get a better rate)
2. Determine if there are valid DEFENSES
a. Unclean Hands
b. Laches
c. NOT negligence of P (not a good defense)
3. NOTE: if P sues for damages first, rescission NOT allowed; if P sues for rescission first, damages ARE
allowed (can sue for both at same time but must elect preferred remedy before judgment rendered)
4. NOTE: if contract is rescinded, P can get compensated for any partial performance or payments via
restitution
F. Reformation (Changes written agreement to conform with parties’ original understanding)
3 STEP ANALYSIS (Very Good Dog:
1. Determine if there are is a VALID contract
2. Determine if there are GROUNDS for reformation (mistake or misrepresentation)
a. Mistake (Mutual mistake= reformation GRANTED; Unilateral mistake=reformation DENIED, unless
non-mistaken party knows of mistake (fraud) but NOT SHOULD HAVE KNOWN as in rescission)
b. Misrepresentation (reformation GRANTED; available for both innocent and intentional
misrepresentation/ rewriting reflects expressed intent of parties) (Hand: guy tried to trick employer into
signing a different k)
3. Determine if there are any valid DEFENSES
a. Unclean Hands and Laches (same as rescission)
b. NONDEFENSES will NOT work (negligence of P/ SOF/ parole evidence rule)
c. CANNOT do reformation if it adversely affects rights of subsequent BFP
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