Remedies Checklist

I. Torts Analysis
a. Legal Remedies
i. Compensatory Damages put P in position he would have been in had the harm not occurred
1. Actual cause (but for)
2. Foreseeability (proximate cause)
3. Certainty (cant be too speculative, for future damages the all or nothing rule must prove future damages more likely to happen
than not)
a. This only applies to Economic losses if non-economic, jury may award what it wants
4. Duty to mitigate
ii. Nominal Damages amount awardable when no actual damages can be proved
iii. Punitive Damages punish malicious or intentional (not negligent) conduct and deter
1. proportionality must be single digit multiple of actual damages under due process clause
iv. Restitutionary Remedies purpose is to prevent unjust enrichment to D
1. Restitutionary Damages Based on value of benefit conferred on D
a. Cant recover both compensatory & restitutionary evaluate both & elect
2. Replevin recovery of specific personal property
a. Show P has a right to possession & theres been a wrongful withholding
b. Must have preliminary hearing, P must post a bond, D may defeat by posting redelivery bond
c. Can also recover damages for loss while dispossessed
3. Ejectment recover specific real property from D in possession
a. coupled with damages for loss of use
b. Equitable Remedies
i. Restitutionary Remedies
1. Constructive trust Imposed on improperly acquired property to which D has title. D must act as constructive trustee and return
property to P. (use when property goes up in value while dispossessed)
2. Equitable Lien Imposed on improperly acquired property to which D has title. Property will be subject to an immediate court
directed sale. The monies received will go to P. If the proceeds are less than the FMV at the time the property was taken, a deficiency
judgment will issue for the difference and can be used against Ds other assets. (use this when property goes down in value OR when
Ds property cant be solely traced to Ps property)
3. Can only get one of these when:
a. inadequate legal remedy (D is insolvent or, in CT, the property is unique)
b. Tracing is allowed
c. BFPs prevail over P
d. P prevails over unsecured creditors
ii. Equitable Remedies D is ordered to do or refrain from doing something
1. TRO (irreparable injury while awaiting hearing for temp. injunction & likelihood of success on merits)
a. No notice required, but if you can a good faith effort must be made
b. Limited to 10 days
2. Temporary Injunction (irreparable injury while waiting for full trial (Balance hardships) & likelihood of success on merits [court
should impose bond on P]
3. Permanent Injunction (I Put Five Bucks Down)
a. Inadequate legal remedy (Replevin [sheriff cant find it], Ejectment [sheriff wont do it or redelivery bond], money
damages {too speculative, only threatened tort, D insolvent, irrep. injury, avoid multiplicity of actions})
b. Property right/protectable interest traditional rule (must be property right), modern trend (any protectable interest)
c. Feasibility of enforcement (mandatory injunction may be enforcement problem based on (i) difficulty of supervision or
(ii) concern with effectively ensuring compliance)
d. Balancing Hardships (must be gross disparity, no balancing if Ds conduct willful, if it fails remember $ damages, hardship
to public also taken into account
e. Defenses (Unclean Hands [bad conduct must be related to the law suit], Laches [when delay by P in filing has been both
unreasonable and prejudicial to D], Impossibility, Free Speech)
II. Contract remedies
a. Legal Remedies
i. Compensatory Damages what P would have had had contract been performed (no Punitive in K)
ii. Consequential Damages available for related damages foreseeable at time of formation
iii. Liquidated Damages (valid if: damages very difficult to ascertain at time of contracting AND reasonable forecast cant say can get either
actual or liquidated)
iv. Restitutionary Remedies
1. Restitutionary Damages
a. P can recover if (i) K was unenforceable or (ii) D breached the K
b. If P breached traditional (cant recover), modern (recovery allowed, but limited by K price and reduced by damages
suffered by D)
2. Replevin same as above
3. Ejectment same as above
b. Equitable remedies
i. Constructive Trusts same as above
ii. Equitable Liens same as above
iii. Equitable Remedies
1. Specific Performance (Cha Cha Is My Dance)
a. Contract is Valid
b. Contract conditions of P satisfied (if deficiency, S can enforce unless breach is major and cant cure, P can enforce unless
very major If forfeiture provision w/ time of essence look to factors of loss to S is small, tardiness is slight, waiver, or
Bs undue hardship)
c. Inadequate Legal Remedy (speculative, insolvent, multiplicity, unique item [tested at time of litigation])
d. Mutuality of Remedy (reject if Court feels secure P can and will perform ct should require simultaneous performance)
e. Defenses (Unclean hands, laches, unconscionability [at time of formation], COD doesnt matter much since Christmas)
2. Rescission {Good Dog}(Grounds [invalid K formation COD doesnt matter much since Christmas + illegality] + Defenses
Unclean hands & laches
3. Reformation {Very Good Dog} (Valid K, Grounds [same as above, except for unilateral mistake, D must have known], Defenses)