REMEDIES 1. Damages a. Compensatory Damages i. Award of money for loss or injury ii.

General damages for forseeable losses iii. Special damages for nonforseeable losses (ie: wage losses) iv. Requirements for damages: 1)causal; 2)forseeable; 3)certain; 4)unavoidable v. Avoidable consequences damages limited where plaintiff didn t mitigate b. Nominal Damages for when no actual injury is sustained c. Punitive Damages i. Applicable for willful, wanton, malicious conduct ii. Limited to intentional torts, or sometimes reckless conduct iii. Due Process Limits on Punitives 1. Cruel and Unusual Punishment if grossly excessive (unusually high) a. 10x maximum permitted is 10x compensatory damages b. Must not calculate using non-party damages 2. Fair notice of magnitude of punitives factors: a. Reprehensibility of def conduct b. Disparity b/w actual injury and punitive damages c. Difference b/w punitives and criminal/civil penalties iv. Interest and Attorney Fees 1. Prejudgment interest statutory 2. Attorney fees nonrecoverable unless allowed by statute 2. Restitutionary Damages legal or equitable a. Restitution/Unjust Enrichment legal; defendant pays plaintiff reasonable value of benefit received b. Replevin legal; recover before trial possession of specific chattel wrongly taken c. Ejectment legal; restore possession of RP where plaintiff wrongfully ousted d. Constructive Trust equity; trust imposed to compel return of title to unjustly retained property i. Required: 1) No adequate remedy at law; 2) Traceable ii. Use where defendantin possession of plaintiff s property or used it to acquire title in something else;Not if only used to improve property. iii. Benefit get any increase in the value of the property iv. Transfer to BFP lien is cut off by transfer of title to BFP v. Equitable Defenses apply e. Equitable Lien equity; lien on def. property to secure payment for plaintiff s debt i. Required: 1) No adequate remedy at law; 2) Traceable ii. Use on property where defendant holds title and wrongful property can be traced to; used over a constructive trustwhere property was only improved by plaintiff s property or its proceeds iii. Priority plaintiff has priority over other creditors iv. Avoid loss cannot recover increase in value of property; use when the plaintiff s property has decreased in value v. Enforceable only up to the amount of the claim vi. Transfer to BFP lien is cut off by transfer of title to BFP 1

f. Injunctions 3. Injunctions a. No adequate remedy at law required i. Damages are inadequate or highly speculative ii. Multiplicity of suits continuous wrong or occurs numerous times iii. Irreparable injury damage to unique property (ie: land) iv. Prospective tort wrong has not yet been committed, so no damages yet v. Replevin inadequate for unique chattels due to hearing requirement, or difficulty in executing the writ b. Property right traditionally required injunction limited to property; requirement rejected or stretched c. Feasibility i. No injunction if enforcement too difficult ii. Civil contempt method of enforcing injunction,but cannot imprison debtor iii. Negative injunction order def. to cease an act iv. Positive injunction order def. to do an affirmative act 1. Problem of enforcement frame positive injunction in a negative v. In other states can order injunction which applies in another state, if feasible. Can enforce by: 1. Framing as negative injunction 2. Punish def. for leaving jurisdiction and not returning d. Balancing of Hardships i. Hardship of defendant or public must not outweigh the relief to the plaintiff ii. Timing 1. TRO hardships not balanced; can be ex parte, short term decree 2. Prelim Injunction hardships balanced; notice and hearing required 3. Permanent Injunction hardships balanced for encroachment and nuisance cases; Issued only after trial on the merits iii. Approaches to balancing 1. Minority view strict; no balancing for injunction 2. Majority view liberal; injunction denied if harm to plaintiff does not outweigh the harm to the defendant or public e. Defenses to injunctions i. Laches unreasonable delay by defendant that prejudices the plaintiff ii. Unclean hands plaintiff is guilty of unfair dealing in the same transaction iii. Freedom of speech prohibits injunction against personal defamation iv. Injunction against criminal prosecution no, unless irreparable injury to plaintiff v. Injunction against crimes no jurisdiction in equity to enjoin crimes 1. Constitutional problem defendant deprived of procedural safeguards 2. Public nuisance exception okif property used to endanger public health and safety; standing by AG or granted by statute 4. Application of Remedies to Specific Torts a. Misappropriation of Money i. Damages requires showing that specific money was taken ii. Restitution 1. Quasi-K available where unjust enrichment shown 2

2. Constructive Trust available if specific stolen money can be traced; if used to pay debts then no since no res 3. Equitable Lien available where funds can be traced but not used to obtain title to property a. Commingled funds if funds commingled, claimant can get the full claimed amount on both the funds in the account and property purchased using funds from the account b. Lowest intermediate balance where wrongdoer withdraws and uses funds from a commingled account, and the balance sinks below the claimed amount the victim may only get the lowest intermediate balance amount b. Injuries to Personal Property i. Destruction of chattels damages measured by value of chattel at time destroyed less salvage, plus interest 1. Loss of use - not recoverable unless chattel was income producing ii. Injury to chattels damages measured by decrease in value or cost of repair (limited to market value), plus loss of use iii. Dispossession of chattels 1. Major dispossession Conversion damages: market value at time of conversion plus interest and costs to pursue property a. Exception if value of chattel fluctuates use highest value during time of dispossession; if chattel retained use value at time taken; If chattel improved the increase is recoverable b. No duty to mitigate but if acceptance then damages will be mitigated c. Successive converters liable for the value on the date they acquired it, except improvements made by previous innocent converters d. Punitive damages possible for malicious conduct c. Injuries to Real Property i. Trespass on Land 1. Simple trespass nominal damages; restitution; injunction 2. Trespass causing severance decrease in value of land; conversion damages; replevin; restitution; injunction 3. Trespass causing other injury cost of removal; rental value; injunction 4. Trespass causing ouster ejectment; mesne damages; no injunction ii. Encroachment 1. Encroachment where defendant s structure invades plaintiffs land/air 2. Damages rental value for continuing trespass; market value for permanent trespass 3. Restitution ejectment if enforceable; usually not used 4. Injunction land is unique, and if ejectment not practical a. Balance of hardships if willful, most courts refuse; if inadvertent then balance iii. Destruction/Injury to Realty decrease in value of land; value of building at time if destroyed; cost of repair if damaged plus loss of use; iv. Destruction/Interference w/ easements damages; injunction w/ balancing v. Waste injury by possessor asserted against future possessor 1. Voluntary waste deliberate destructive acts; damages of decrease in value; injunction available 3

2. Permissive waste premises allowed to fall into state of disrepair; damages of cost of repair; injunction rare 3. Ameliorative waste alterations that increase value of property; damages not available; injunction only against short term tenants 4. Equitable waste no legal waste but material change to premises; no legal; injunction yes vi. Nuisance use of property as to cause unreasonable interference with use and enjoyment of other s property 1. Damages loss of use and enjoyment; emotional distress; cost to abate 2. Injunction yes, in negative form; courts differ on whether to balance 3. Coming to the nuisance applies as defense only if purchase price reflected nuisance d. Injury to Person i. Personal Injuries compensatory damages; no restitution; 1. Economic loss medical expenses, employment or earning loss 2. Noneconomic loss pain and suffering, emotional distress, etc. 3. Damage limitations avoidable consequences, etc. ii. Survival of Tort Actions decedent estate has standing to sue for damages that occurred until decedent s death iii. Wrongful death - yes iv. Defamation damages; no restitution; no injunction b/c prior restraint v. Privacy damages for mental anguish; no restitution; Injunction yes e. Fraud actual injury required; consequential damages; punitives for malice; restitution; rescission; constructive trust f. Business Torts i. Inducing breach damages only ii. Interference w/ prospective advantage restitution; damages too speculative iii. Trade Libel proof of special damages and specific customers required 5. K Remedies Damages a. Compensatory must be: 1)forseeable; 2)certain; 3)unavoidable; 4)liquidated damages can limit if reasonable forecast and damages too speculative b. Punitives no punitives for K 6. Restitution Unjust Enrichment a. Can be used if no valid K, or even if valid K b. Measure of benefit i. Material breach recover value of performance ii. K unenforceable depends on nature of benefit; can be specific or value of K 7. Specific Performance a. Force the other party to perform b. Requirements i. Valid K must exist; terms must be definite and certain ii. Mutuality of performance - seeker must have fully performed, or will fully perform for it iii. Legal remedy must be inadequate; liquidated damages doesn t preclude it iv. Enforcement must be feasible no specific performance for personal service K, construction K, etc. c. Defenses no defenses to specific performance must exist 4

i. Laches; Unclean hands; Hardship inadequate consideration; Hardship public 8. Rescission a. Terminates the K and puts the parties at their original position b. Legal rescission give back the benefit and then motion for restitution c. Equitable rescission where legal remedy is inadequate d. Legal by action of parties; Equitable by court decree e. Grounds for Rescission i. Mistake in K formation 1. Mutual mistake yes, if affecting basis of the bargain 2. Unilateral mistake no, unless other side knew or should have known about the mistake ii. Misrepresentation yes, if actual reliance on misrepresentation of fact is shown f. Defenses Laches; Unclean hands; i. Election of remedies either damages or rescission but can t be both 9. Cancellation voidable by person with the power to void it 10. Reformation a. Modification of written instrument to reflect the parties true agreement b. Valid original K required c. Grounds for Reformation i. Mistake of fact mutual mistake; unilateral mistake if other side knew or should have known ii. Mistake of law proper to fix incorrect legal meaning in the agreement iii. Fraud fraud in the factum, yes d. Defenses laches; sale of subject matter to bfp; i. Parol evidence rule no defense ii. SoF no defense iii. Negligence by plaintiff no defense 11. Remedies for Particular K s a. Buy and Sell Personal Property i. Damages yes ii. Special performance where unique; damages are highly speculative b. Buy and Sell Real Property i. Damages 1. Seller breaches buyer gets either out of pocket loss, or benefit of the bargain 2. Buyer breaches seller s profit plus consequential damages ii. Restitution 1. For plaintiff where there is a material breach (seller or buyer) 2. Recovery offset by value of using the land or payments made iii. Specific Performance 1. Land is unique so legal remedy is always inadequate 2. Feasibility a. Suit by seller no contempt against buyer; get levy of execution or foreclosure lien for the purchase price b. Suit by buyer If land in jurisdiction court can effect conveyance by itself 3. Satisfaction of conditions a. Marketable title seller must show marketable title to get specific performance 5

b. Time of the Essence express or implied i. Wholly executory K no specific performance for late plaintiff ii. Partly executory K defaulting buyer can get sp. Perf. If payment is coming, seller loss is slight, full comp for delay iii. Time NOT of the essence relief if tender made within reasonable time c. Partial performance w/ abatement i. When seller cannot fully perform ii. Seller sues can get sp perf if defect is immaterial and buyer can be compensated for the defect iii. Buyer sues yes, get performance and abatement even if defect is material, unless so large it would be like making a new K. If purchase based on income generating land, then no abatement 4. Defenses a. SoF oral K for land is denied; not within a year i. Exception if part performance then can be sp perf 5. Equitable Conversion Problems a. Applies only when there is specific performance of sale of land b. Nature of interest risk falls on the buyer when K made; buyer owns equity in land, seller owns equity in the payment c. Death of Party i. Title goes to person entitled to decedent s RP; Payment comes from person holding decedent s PP ii. Vice versa in both seller and buyer s death iii. If both die, all four parties must complete transaction d. Destruction risk falls on buyer, but seller must tender insurance proceeds if received (constructive trust) i. Minority view buyer must have actual possession before risk falls on the buyer c. Construction K s i. Damages 1. Owner breach builder gets lost profits if wholly executor; gets k price if build is completed; K price less cost of completion if partially built 2. Builder breach If material breach then owner gets cost of completion less payments due, plus costs of delay ; if substantial performance then owner gets cost of restoration unless would be waste, if yes then he gets the decrease in value ii. Restitution 1. Owner breach builder can get value of the benefit conferred 2. Builder breach owner gets no restitution; builder gets value of the benefit minus owner s damages (limited to K rate) iii. Specific Performance generally no, but courts might do so if inclined d. Personal Service K s i. Damages 1. Employee breach employer gets cost of obtaining replacement 2. Employer breach employee gets wages due less avoidable damages ii. Restitution 6

1. Employer breaches employee gets reasonable value of services 2. Employee breaches employer gets the paid but unearned wages iii. Specific Performance 1. Unique damages are inadequate 2. No Specific performance involuntary servitude issues 3. Only negative injunctions available iv. Negative Covenants for Employment K 1. Ok, may specifically enforce such covenant 2. Implied existence will be implied if exclusive employee 3. Inadequacy of damages must be shown 4. Independent significance breach would harm employer beyond the K 5. Feasibility no problem. Court can enjoin employee from working. 6. Conditions employer must provide proper conditions 7. Defenses usual defenses against specific performance v. Negative covenant to compete 1. Ordinary services damages ok 2. Unique services, trade secrets, goodwill damages inadequate 3. Must be reasonable duration of time and geographic scope 4. Blue pencil rule overbroad covenant will be limited to the extent necessary 5. Some courts hold such covenants as illegal constraints on trade 6. Covenant is less reasonable when covenant bars employee from competing after termination of employment