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Remedies Outline Spring 2010 Roman FIU

Remedies Outline Spring 2010 Roman FIU

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Published by jop1229
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not best organized but has all the info you need

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Published by: jop1229 on Jul 30, 2010
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06/12/2013

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 1
Remedies outline
2 goals: 1) What remedy to choose 2) and once chosen how tomeasure it?
What does the court do for a successful
p
laintiff 
?Grant
s
p
ecific relief 
usually specific performance or an injunction³in personam remedy´ operates against the D¶s person Award
substitutionary relief 
or money damages
 Award= adjudicate, decide after consideration
³in rem´ operate against the D¶s property Award
restitution
b
ased on defendant¶s gain or unjust enrichmentWhat court may do to the
defendant
?Require D transfer title or possession of propertyOrder D to do somethingProhi
b
it D from doing somethingDirect the D to
b
e confined (contempt) to coerce him to o
b
ey any of the a
b
oveexcept to force paymentEnter a money judgment to compensate P, to prevent D¶s unjust enrichment, or to punish D
Equitable versus Legal Remedies
Principle equita
b
le remedies:Injunction, specific performance, constructive trust- associated to specificor in personam relief For judge to grant equita
b
le relief P must show legal remediesinadequate, without equita
b
le relief will suffer irrepara
b
le injuryMajor legal or common law remedy-money damages
su
b
stitutionary or in rem relief Differences
b
etween equita
b
le and legal remediesNo right to jury trial for equita
b
le remedies
 
 2
Judge will enforce an in personam equita
b
le order 
b
y holding the defendant incontempt; in contrast to the plaintiff¶s collection of money damages with awrit of execution, garnishment, and judgment lien.
T
ort Remedy Goals
1
. Prevent a tort from occurring- injunction2. Restore the Status Quo- can
b
e done through specific performance, restitution or restoration for a property tort3. Compensate the P for Loss- compensation or indemnity principle- can awarddamages for P¶s physical or mental injury, pain and suffering, lost income, andloss of property value, etc.4. Deter Future Torts-market economic analysisstress structuring actual or potential Pdamages awards should encourage D¶s to take precautionary goals to preventfuture mishaps5. Esta
b
lish, Declare, Vindicate P¶s Rights- declaratory judgment different thaninjunction for it neither commands nor for 
b
ids anything6. Punish wrongdoers- punitive damages for aggravated wrongful act
Remedies goals in Contract
1
. Fulfill Plaintiff¶s expectancy of gain- may consist of specific performance or money damages if SP not availa
b
le2. Special Damages to restore plaintiff¶s losses and reliance expenditures Pincurred3. Restitution- court¶s rescission of K or agreement followed
b
y restitution willrestore the plaintiff and the defendant to respective situations prior to thetransaction4. Punish or deter the D-
b
y granting the plaintiff¶s expectation and special damageswill deter D¶s from
b
reaching Ks. (market economist). A court will almost never award P punitive damages when a defendant
b
reaches a K.5. Declare or terminate parties contractual rights or duties- may grant declaratory judgment either 
b
efore or after a parties
b
reach
 
 3
Remedy goals for Unjust Enrichment
 
1
. Restore the
b
enefits D unjustly holds, restitution- primordial concept.2. Punishment and deterrence- su
b
ordinate goals when D has give up
b
enefits shehas unjustly reaped.
S
ummary of Historical Cra
p
 
Common law courts
tort-property actions
1
. Specific relief/ restitution of property
 jectment-
to recover possession of real property/land.
Detinue
- developed from writ of de
b
t, and to
b
e used against an unfaithful
b
ailee, let the D either return the chattel or pay plaintiff its value
Replevin-
to retrieve P¶s personal property from a D
.2.
Compensatory Damages- money for harm
 Trespass-
historically to someone¶s person, to chattel, or to land allowed for damages
Trespass to the case-
to compensate the P for injuries ranging from indirect & negligentinjuries to the person to nuisances and various
b
usiness torts
Trover 
- for D¶s conversion of P¶s chattels allowed for compensatory damages3. Punishment- historically would allow jury to award Ps punitive damages
b
c of ³detestation´ of act itself 4. Prevention- Common law Courts could not award equita
b
le remedies, had to goto Court of Chancery (Court of Equity) thus major deficiency- dual courts5. Declaration of Rights, o
b
ligations and status- pro
b
lem in common law courts,
b
utcould award nominal damages.Contract Breaches historically-
 Account 
- originally D¶s
b
reach of fiduciary o
b
ligation- fell out of favor cum
b
ersomeprocedure for dual lit. in
b
oth court systems
Covenant-
no covenant if de
b
t is applica
b
le- only for instruments under seal.
Debt 
- oldest personal action, D¶s duty to pay P a certain amount either 
b
y contract,custom (statutory required payment), or record (collect money judgments)

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