My Remedies Outline

Remedies Outline
Intro to Remedies
3 categories:
General Way to Compensatory Damages
Rule: Place P in position would’ve been in if D didn’t commit wrong act.
Definitions for damages:

* Punitive – punishes D’s bad behavior or deter D
* Nominal – damages hard to show + award in sum for $1 or $100
* Statutory – Damages given by Statute; not Comm Law
 General – E.G. general damages are natural consequence of breach of K
 Special (AKA. Consequential damages) – don’t flow directly from breach
Equitable Relief (aka. Known as Remedies in Personam)

Rule: Court has jdx over D to either do something or not something
* P sues  gets specific performance
* Applies to Temporary restraining orders AND preliminary injunctions.
Restitution
Rule: Prevents unjust enrichment on D
o Specific – return of good OR property
o Substitutionary – get value ($) of property
Replevin
Goods identified in K AND B cannot cover w/ reas. effort
Specific Performance
Rule: P gets benefit would’ve had if D performed K.
* Apply to land sale Ks AND goods
Note: Not available for Service Ks

* (eg. Ct orders police to stop using chokehold  Not Specific performance b/c no K.)
I. General Damages
Rule: Puts P in same position (whole again) P would’ve been in if wrong act didn’t occur
General Damages Examples

(e.g. fear to ride bus and wants recovery for buying a new car – Put in better position; No damage reward
(e.g. D converts P’s car & orders D to return it. – Put in better position; No damage reward
(e.g. D steals money and uses to buy paint and sells for $1000 – Not P damages
2 elements of damages?
General damages (AKA direct loss)
- naturally flow from wrong and foreseeable
Special Damage
- don’t flow from wrong
- Causal relation between loss & wrong has to be proven
2 aspects of damages
General Damage
1. compensate loss
2. provides money substitute
Example
(e.g. putting crocodiles in property to prevent kid from coming over – Not compensatory/substitutionary
b/c your in better position than before)
(Fully Updated Above)
Measures for Tort Damages

General Info for Compensatory Damages
Betterment
Ask: Whether repair or replacement put P in better position than pre-tort value?
- If Yes, avoid overcompensating and undercompensating
FMV
- Value that willing buyer would pay and willing seller would accept for item in question
- Depreciation of value at time of taking called FMV.
Loss of Use
- Thing destroyed, so cant use while being repaired
* Loss of use cover inability to use thing if P cannot be in position he should’ve been in had the
wrong not happened.
Prejudgment Interest
-Covers from date of injury to date of judgment.
Post-judgement Interest
- Covers from Date of Judgment to date of payment.
Limits on Tort Damages

Foreseeability, certainty, causation, and mitigation
Measures of Damages for Trespass to Land

- Special Damages for Land
o Other harm to P from trespass
(e.g. D made hole in Ps land & P fell it & injured)
- General Damages for Land

o If deprivation is Permanent Trespass is Diminution of value or FMV (difference in value before
AND after trespass)
o If deprivation is Temporary Trespass is Reas. Rental Value in part of land specifically taken by
D
Measures of Damages for Chattel
Minor Interference – Not completely destroyed
Examples: dented car, leak in roof.
General Damages
Cost of Repair
- gets Cost of Repair if COR doesn’t exceed FMV (pre-tort)
* COR must be physically & economically feasible
DIV
- Difference between value before loss AND value after loss
* COR higher than FMV = Use DIV
Special Damages
o Loss of Use
o Loss of Profit
o Reasonable Rent Value
(e.g. FMV car value 21K, dent in car cost $2,000 = 21K – 2K = 19K )
Measures of Damages for Conversion

General Info:
FMV
- Fair Market Value at Time AND Place of Conversion PLUS interest MINUS salvage value
Cost of Repair
- Expenses to repair damaged property
- Not itself damages
Major Interference - Completely destroyed or Substantial

Examples: car driven over a cliff, horse turned into dog food.
General Measure of Damages for Conversion

Cost of Repair
- gets Cost of Repair if COR doesn’t exceed FMV (pre-tort)
DIV
- Difference between value before loss AND value after loss
* COR higher than FMV = Use DIV
Best Example of DIV

- $10,000 (value before loss). $8,000 (value after loss) when prop returned. To put P back in pre-tort
position, get difference between 10K & 8K, making D pay you extra $2000, thus $2000 plus $8000
makes $10,000.
Special Measure of Damages for Conversion

- Loss of use
- Loss of Profit
- Reasonable Rent Value
Gavcus v. Potts (Fully Read)

Facts: Damages for locks and alarm because she felt unsafe (no damage done to the locks and alarms)
Holding: No economic loss in this case, thus no recovery
Hathaley (Read?)
Facts: Hathaley (P) Navajo tribe, sued US for wrongfully taking their horses and selling them to
horsemeat plant. Showed no proof of replacement cost, but horses were specially trained. Awarded
FMV per horse was $350 and awarded loss of use by equal value for sheep, etc.
Holding:
P got replacement cost ($50) for animals plus value of animals between time animals taken ($100
each horse) and upon return ($50). .P said should be awarded special damages for no horse and barrels
result in Indians losing other things depriving them of prop like lack of water, travel, crops, etc (Loss of
Use). Court held trial ct use wrong measure of loss of use but must mitigate to find other animal
replacements, but was not strong enough showing. Also, pain & suffering wrongly awarded b/c
individuals are awarded, not communities.
Gen. Dam. Examples

- N took saw from P, broke saw while cutting branch. What’s the conversion damages? Value before
borrowed it.
- FMV at time of taking $350 & turned into dog food, P got nothing back (no salvage value) Assume no
interest to be paid. P gets $350.
- In the course of building a factory, A negligently destroys City B’s brand new toll bridge. Before it was
destroyed, the bridge was on pace to yield average annual profit of $50,000 per year. A new bridge
would cost $5,000,000 and three years to build. The factory has a fair market value of $30,000,000. In
an action by B against A, B most likely will recover as damages? A. $5,150,000.
- New Car worth 20K (pre-tort). Thief stole it & after 5 years returns it destroyed, now worth 10K (post).
FMV/DIV is now 10K (difference between 20 – 10).
- Wrecked car & sold for scrap metal for 500. B/c P made scrap money after car returned ($10K – FMV).
10K minus $500 (salvage value) = $500 as FMV. (see below for Explanation)
Answer Explanation to Hypo:

General Damages for Conversion
- Cost of Repair (5 Million)
Special Damages for Conversion
- loss of profit – 150K (50,000 X 3 years)
Loss of Use Examples

- Cant use car due to crash & need to get another car.
Bar rule
No loss of use for Conversion unless property is a) brings income OR b) hard to replace.
Note: Conversion suits allowed against Bona Fide Buyer.
Baram v Farugia (Fully Read)

Facts: B got title of Toni (horse) for $3,000. W/o knowledge or consent of B, Farugia got possession of
horse from Fredella. B filed trespass in conversion.
Holding: Fredella paid B $3,000 (true value) for horse, so forced sale took place and Fredella (converter)
took title at time and place of orig. conversion. Reversed. Once F paid B $3,000 at time of conversion,
means B has no more title of horse, thus conversion destroyed at time of conversion.
FMV Destroyed if Title Transferred:

- FMV at time of conversion destroyed when title transferred.
Welch v Kasasky (Fully Read)

Rules
General Damages:
- DIV
Special Damages:
- Loss of use if P recovers chattel
- Cost to locate & recover chattel
Facts: D sold silver and 9 of 11 lots were bought by English dealer (E) for $40,000 & one he didn’t buy
was set of 3 James II castors that Mrs. Welch (W) bought from NY dealer for $7500. D recommended
changes to 1 of the castors & E allowed it. W brought claim for conversion.
Holding: W had legal right to return of castors. In the previous condition (Pre Tort Value) in 1984, the
castors were worth 25,000 but when altered $3,000 (Minus Post Tort Value), was only worth $22,000,
which is awarded for diminution of value. For locating and returning stolen items was total of
$3,494.78 consequential damages. $10K for loss of use awarded.
Loss of use Examples:

* how much it cost me to replace piano or animals
Other Conversion Measures:

a. Replacement Cost Less Depreciation
b. Replacement cost minus depreciation value

* e.g. Cost of rebuilding barbecue minus depreciation since time built
c. Capitalization of Earnings
- Value of prop depends on how much income will produce over time if prop makes income.
Tarahan v First National Bank (Fully Read)

Rules: Split for fluctuating values: Conversion of Stock
- FMV at taking (“stand pat rule”)
- Highest FMV between time of conversion and trial date
Facts: First National Bank liable to Trahan for conversion of $15K stock shares. Bank argued damages
are value of stock at time of conversion, while Tarahan said should get highest value reached by stock
between date of conversion AND date of judgment. Date of conversion TIPCO stock was $10 per share.
On date of judgment, stock was $29.50 per share. Highest value reached between both dates was
$64.25 per share. Trahan pledged $70K to Bank to secure 2 loans, repaid, and wanted them back, Bank
refused. Trial court said stock incorrectly converted by Bank because rewarding bad actor and
overcompensating. He ordered Bank to give equal number shares of TIPCO stock to Trahan, which
neither did.
Holding: Rejected Bank’s argument that court needed to fix damages at value of stock at time of
conversion. T says should get highest value between date of conversion and date of judgment. Court
was awarded proper damages. Affirmed.
Measures for Personal Value

Bond v A.H. Belo Corp (Fully Read)
Rule: Sentimental Value Measure of Damage:
- Reasonable personal value to prop with sentimental value to prop
Facts: Griffith (G) wrote about unwanted kids which Belo published in newspaper. Interviewed Bond
who said was adopted and wanted to find parents. He gave an envelope w/ pictures and birth records and
allowed G to take it and lost them. Actual value of lost papers were $2500, but had more sentimental
value.
Holding: Bond awarded actual value of family papers and photos lost while Belo had them. Bond entitled
to reasonable special value of articles b/c of owner’s feelings of property.
Sentimental Examples
-Brake pads malfunctioned. Tow truck took car to shredder w/o P permission. Sentimental value on brake
pads b/c cant get brake pads for evidence, so gets reasonable special value.
- After wedding, brought her dress to cleaners but they donated dress to charity. P wanted it back, but cost
$1300 in 2010 and to replace in 2015 was $2000. If P sues for conversion, gets reas. special value to P.
Measures for Conversion

Hewlett v Barge Bertie (Fully Read)
Facts: Barge 1401 declared total loss before repair. Barge ship could be sold for scrap, but had no FMV.
It was not pierced in crash, instead only had dent on side, thus no major interference to Barge
seaworthiness.
Issue: The issue is whether P should recover cost of repairing dent that didn’t affect FMV (pre tort
value)?
Holding: The fact that it was constructive loss irrelevant. Repair costs was $2,895, but there was no
finding of value of Barge, thus not enough facts to determine COR is higher than FMV (pre-
tort).Because no showing that COR exceeded FMV, P can recover COR plus interest of 6% plus
costs.
Rules
Cost of Repair
- Cost of Repair if COR doesn’t exceed FMV (pre-tort).
- DIV
* If repair cost more than economic value  Apply DIV
Loss of Use
- Loss of Profits
- Reas. Rental Value
Conversion Hypos:
1. Car sticker price 24,990 & manufacturer paid 20K. Car buyers usually pay 22K to buy car. Car stolen
from customer after paid car (22K) but didn’t leave lot yet. No post tort yet, so gets FMV at time of
taking (22K)
Place as in Type of Market

- P as Retailer = Wholesale value
- P as Manufacturer = Market where manufacturer sells
- P as consumer = Retail value
2.
Property as Personal Purpose Example
- Billy has inventory of phones and no markets around. To get to nearest place where sold is 2 hours but
would sell phones for $500 but to get there costs $40, but phones get stolen before driving there. What’s
the measure? If selling phones, 500 (FMV) -40 (driving cost) = 460. If phones for personal use, 500 +
40 =540 to put him in orig. condition.
Place as in location
- Property for Sale = Transport cost subtracted from FMV
- Property for Personal Use = Transport cost added to FMV
Property for Sale Example:

- Jennifer bottles her own kambucha and sells it for $3 a bottle to a vegan market located 90 minutes
away. Jennifer pays her neighbor Bob, $50 to transport shipments of 100 bottles each to market, payable
upon completion. Diane, who loves kambucha, went into Jennifer’s house, stole 100 bottles that were
ready for transport, drank them all, and then threw the bottles off a cliff. In a conversion action against
Diane, will recover $300 b/c $300 (FMV) Minus $50 (Shipping Cost) = $300.
Measures for Sale or Personal Use

- Item for Sale = Transportation cost MINUS Sale Price
- Item for Personal Use = Add Transportation cost to Sale Price
Conversion-Trespass to Land
3. Loss of Trees
Measure of Damages Tree loss?
- Not clear if measure of conversion or damage to land.
4. Loss of Crops Example

D’s cattle eat hay before harvesting. Measure? FMV of harvest minus cost of extraction(expense saved).
Trespass to Land Examples

5.
- D builds prop but part of building (20 feet below surface) that crosses P’s side of prop. Measure?
Trespass to land exists here underground.
- If deprivation is temporary, P gets Reasonable Rental Value.

- If deprivation is permanent, P gets FMV of land taken.
6.
P’s land not tested for oil and Someone came to land w/o permission to do oil search but finds no oil.
Measure?
- If P lose selling drilling rights to an oil company- paid amount to do exploratory search.
Kuwait Airways Corp v. Ogden Allied Aviation- Serv. (Fully Read)

Rules:
- Loss of use for deprivation of chattel
- Reasonable rental value if substitute rented while other repaired
- Percentage of spare plane’s lifetime rep by # of days, Multiplied by lifetime cost of plane
Facts: Boeing 747 aircraft owned & operated by P, while parked at airport, was stuck by truck owned by
D.
Issue: Issue is whether O entitled to loss of use of aircraft?
Reasoning & Holding: Here, P can recover loss of use for not able to use plane to entertain board of
directors, do regular schedule routes, leasing it to another airline, and hold it for reserve. Thus, Ct agrees
P can still recover loss of use, even if no substitute plane was rented. However, reasonable rental value
not recovered because didn’t mitigate by renting another plane while the crashed up plane was being
repaired. In addition, if had canceled flights, might recover loss of profits.
- Percentage use of spare reserved plane (lifetime cost of keeping plane)
(Fully Updated Above: Yes)
Measures for Personal Injury

Gen. Info
- Personal Injury triggered by Assault, Battery, IIED, & Negligence claims.
Acceptable for Jury

Per diem Argument
* Pain & Suffering determined by dollar amount per day of P&S, then multiplied per day P&S
lasted.
Not Acceptable for Jury

Golden rule argument
* Convincing jury to put themselves in victim’s shoes
* More subjective than objective
Measure of General Damages for PI

1. Pain and Suffering (e.g. broke arm)
2. Loss of enjoyment of life (Cant play violin again/ be MMA star due to injury)
Measure of Special Damages for PI

1. Loss wages (Past and Present loss of wages working at coffee shop while recovering)
2. Out-of-Pocket
* Example: medical/dental/hospital bills
3. Loss Earning Capacity
* i.e. Future earnings if you weren’t injured
Loss Earning Capacity Examples

- P was a top college wrestler who worked 15 hours per week in a local coffee house for $150 per week.
D broke P’s leg so severely that P will never wrestle again. While P was able to go back to work at the
coffee house after four weeks, P will never be able to become a MMA star as he had dreamed.
- Radiology tech injured & cant earn money as RT in future
Damages when P Dies

Survivor Estate Rule
- P decedent’s estate can recover damages she/he would’ve claimed while alive
Dead P can recover damages: (below)

- damages from time of injury to time of death
- loss of earnings during lifetime
- P&S from injury to death
- loss of property
- Reputation, Privacy, malicious prosecution die w/ P
Note
- Loss wages not ok after death
Damages for Wrongful Death

- dependents can recover damages from decedent
- Reps, Surviving Spouse, Next kin can claim
- Damages
* loss of support (financial)
* loss of consortium
 Ex. care, advice, comfort, companionship, affection
* loss and pecuniary gain and support
Delong v County of Erie (Fully Read)

Remedies for Personal Injury
- Pain & Suffering
- Pecuniary loss
* Look at age, relation to person seeking recovery
Facts: Decedent called 911 to report intruder in home & dispatcher handled call negligently wrote address
as 219 Victoria Blvd, police dispatched to wrong address, but assured her help is on way.
Holding: D assumed special duty of care & liable for decedent death & 1) award of $200K for pain and
suffering for last 12 minutes of life from 9:30, when completed call, to 9:42 when collapsed, was not
excessive, 2) expert testimony about value of services by wife, & 3) $600K for wrongful death of
decedent not excessive. B/c dispatcher said help on way, Delong to relied on help, thus assumed duty of
care, breached by operator’s negligence in getting wrong address.
Measure of Damages for Misrepresentation/Fraud re K

Gen Info
- D fraudulently misrep. K if:
1. Misrep. of past/present fact
2. D’ knew of falsity
3. Misrep. was material to transaction (i.e. P relied on misrep.)
4. P relied on it
5. Actual damage from reliance
How is FMV & K different?

- Imperfection info about market, unequal negotiating skills, diff perspectives
- K prices often not same as FMV
Measure of Damages for Misrep/Fraud re K
Out of Pocket
- K price minus FMV (P’s overpayment for consideration)
Benefit of the bargain

- Difference between value misrepresented by D Minus actual value received
Cost to make good

- Cost to bring property to represented value (if less than BOB)
Benefit of Bargain & Out of Pocket Examples

Seller represents the house is free of termites. K price is $150,000. FMV of a house without
termites is actually $155,000 because buyer made a good deal. Because the house does have
termites, it’s worth $145,000. BOB? OOP?
Same contract except assume that the FMV of the house if it had no termites is $147,000.
Assume the contract price is still $150,000 and the value of the house with termites is still
$145,000. Now, the seller made the better bargain and the buyer made a “losing contract.”
BOB? OOP?
Selman v Shirley (Fully Read)
Facts: Selman & Nona (Ps) enter K to buy $2,000 a 160 acre ranch from Shirly & wife (Ds). S & wife pay $550
upon execution of K, but didn’t payment due on Oct 1, 1935. After ejection, P said they were induced to buy land
b/c of misreps: 4000 cords of merchantable fire wood, enough water for irrigation, & highway belonged to the
County. Ps say none of these were true & didn’t know about these lands & unable to inspect due to rain & muddy
ground. FMV was $2000, but apply out of pocket rule & say had no damages.
Rules:
Damages for Deception re Contracts:
- Out of pocket losses – K price minus FMV (i.e. what P has overpaid for consideration at issue)
o FMV (2000)
- Benefit of the bargain – diff between value of prop as represented minus actual value of prop ($2000 of
land as represented – value when returned (200) = 1900 damages here)
- What if the land had all the stuff D said it would have (value as represented) v actual value of land if it had
qualities
- Cost of make good – how much would it cost to build prop to represented value.
Holding: Here, representations in May 23 letter untrue re representation of 4000 cords of wood, gravel being
available untrue, & representation that the creek was ditched for irrigation was confessed by S to be false &
admitted water in stream was scant that pipes & sprinkler were needed. Not wood lot/farm, instead tract of logged-
off land, not mentioned at time of K formation. Ds said land w/ irrigating stream & gravel would have enough
materials free of cost, making road passable, but false & when they said prop had timber able to yield 4000 cords
worth 50 c per cord when asked for $2000 was not worth 2000. Apply benefit of bargain instead b/c can sell to next
person & get prop back.
Misrepresentation Hypos
(See Notebook)
Measure of Damages for Nuisance

Permanent Nuisance
General
- Diminution in Value
Special
- Discomfort & Annoyance
- Medical treatment for headaches
- Abatement efforts (if any)
Permanent Nuisance Examples

- Hog farm that emitted odors w/ no technological control possible other than shutting down the business,
thus this is a permanent nuisance.
Temporary Nuisance
-Rent value
- Discomfort and annoyance
- Clean up costs
- Medical treatment of headaches
Temporary Nuisance Example

- Billy felt uncomfortable and annoyed for several months due to the odors, such that Billy couldn’t do his
daily tasks at home nor enjoy other household activities, thus odors caused a substantial and unreasonable
interference.
Punitive Damages
General info
- Designed to punish D & deter D’s or other Ds’ wrongful conduct
Available if D’s conduct is:

- oppressive
- wanton/ malicious
- fraudulent
- recklessness/gross negligence
Punitive Damages Examples

- Billy consciously disregarded risk of health, safety, well being of people
- Billy acting w/ intentional malice, trickery, or deceit in a K
- Billy engaged in repetitive actions
Not Recover if:

- Simple negligence
- Breach of K
LIMIT on Punitive Award if:

- Amount deprives D of property without due process
- no notice of sanction
- sanctions based on who they are
- punishment does NOT fit crime
Rule of BMV v Gore

- Degree of Reprehensibility of D’s conduct
- Ratio between punitive & compensatory damages
Not Available if:

- Based on D’s wealth
- Hard to predict Percentage of D’s wealth for award
Matthias v Accor Economy Lodging Inc (Fully Read)

Facts: Desiree Matthias & bro (Ps) checked Motel 6 owned by Accor Economy Lodging (D) & P complained about
bitten by bedbugs & sued D by saying they knew of issue but ignored it, thus willful and wanton conduct. Evid at
trial ct found exterminating service found bugs in 1998& offered to spray them for $500, but motel refused &
moved guests to diff room. D sometimes told them they were bed bugs, but ticks.
Issue: Issue is whether P can get damages above compensatory damages if D didn’t prevent physical harm or
intentional torts to P?
Holding: Here, motel knew of bedbugs in the rooms and pest service discovered a bed bug issue, but motel refused
to solve the issue. This shows that they acted in willful and wanton conduct because they could have eliminated the
bed bugs when they were informed of the problem. They used eupherisms like ticks to make the situation not as bad.
This also shows that consciously disregarded the risk of bed bugs. Ratio of actual damages to punitive damages was
37 to 1, thus punitive damages were valid because there was a high probability that people would be bitten by bed
bugs.
Notes
- why high ratio? Conduct hard to detect, but once detected, ok to issue larger award. This conduct is very bad
conduct and bring low compensatory damages, not enough to deter motel.
- Do not punish D based on wealth
- Punish based on Availability
Phillip Morris v Williams (Fully Read)

Facts: Widow of Williams, heavy smoker, sued Morris, manufacturer of Malboro, brand he smoked. Jury found
death caused by smoking, that he believed was safe to do it, & Morris falsely led him to believe this. Jury found him
negligent & deceitful, thus award compensatory damages of 821K and 79.5 million in punitive damages.
Rule
- Jury cannot based punitive award on their desire to punish D for injuries upon people not before court.
Issue: Can punitive award be used to punish D for injury inflicted on people not before Ct?
Holding: No. Here, Juries cannot base punitive award to punish D for injuries on non-parties because doesn’t give D
the chance to present every defense b/c he cant prove non-party knew of the risk of smoking. Its unfair to allow Ps to
hold D liable for harm caused to non-parties, thus violating due process.
Review Questions
• Dirk drove his car over the curb and crashed the car into Peterson’s house. In an action by Peterson against
Dirk, which of the following facts would support an award of punitive damages?
a) Dirk was driving with an expired driver’s license at the time of the accident.
b) Dirk drove his car into Peterson’s house as revenge because Peterson had beaten Dirk in a golf
tournament.
c) Both (a) and (b).
d) Peterson will not be entitled to punitive damages because Peterson did not suffer any bodily
injuries.
• Palmer purchased a homeowner’s insurance policy from Casualty Insurance Company. The policy
purported to insure Palmer against any damage to or destruction of the home from fire. A faulty electrical
outlet caused a fire in Palmer’s home. Firefighters who were attempting to put out the fire sprayed water
on Palmer’s walls, causing damage to the walls and floor. Palmer filed a claim with Casualty. Casualty
denied the claim on the ground that the damage was caused by water rather than fire even though
controlling precedent clearly prohibited Casualty from denying the claim on this ground. In a lawsuit by
Palmer against Casualty for breach of the insurance contract and bad faith denial of his claim, which of the
following are true?
A) Palmer may be entitled to punitive damages only if Palmer succeeds on the breach of contract claim.
B) Palmer may be entitled to punitive damages only if Palmer succeeds on the bad faith claim.
C) Palmer may be entitled to punitive damages if Palmer succeeds on either the breach of contract or bad
faith claim.
D) Palmer will not be entitled to punitive damages under these facts.
• Potter was seriously inured when the passenger-side airbag of the car in which she was riding failed to
deploy during a high speed crash. Potter sued Neptune Motor Company, the company that manufactured
the car, alleging that a defect in the airbag caused it to fail. Under which of the following circumstances
might Neptune be liable for punitive damages in Potter’s action?
A) Neptune will be liable for punitive damages only if it intentionally designed the airbag to fail.
B) Neptune will be liable for punitive damages if Neptune’s internal testing data revealed that the airbag
failed to deploy in four out of six crashes and Neptune decided to market the cars without correcting the
defect.
C) Neptune will be liable for punitive damages if Neptune’s internal testing failed to detect the defect but
more extensive testing would have revealed the defect.
D) Neptune will be liable for punitive damages under all of the above circumstances.
Measures for Contract Damages

Intro
General Info
- Three interest in Bargain
 Expectation: Puts P in same position had K been performed.
1. Money Damages
- Difference between P’s current economic condition due to breach & condition P
would’ve been in had K been performed
2. Specific Performance
- Considered if:
 Inadequate money
 K certain to allow Ct order
 Public policy
 Ct supervision feasibility
 Reliance
1. Refunds P for loss for relying on K by putting P in same position if K never
performed.
2. Corrects past economic damages
3. Compensates out of pocket expenses or down payment
 Restitution
1. Restores P any benefit he conferred to D
 Two types
- Monetary: P gets FMV or profit
- Specific: Thing returned to P
To avoid Overcompensating, Ct Limits Money Damages
 Certainty
 Recoverable only if certain that loss caused by breach
 Damages cannot be speculative
 Certain as to dollar amount
 Past records can prove “profits”
 Example
- Walker, owner of El Fredo Pizza restaurant bought an oven. After oven was
installed, it didn’t bake pizzas properly due to uneven heating. Constant
monitoring was needed of oven, delays in serving customers occurred. Answer:
Because of uneven heating, restaurant sold fewer pizzas and incurred higher
labor costs, thus resulting in loss of profits.
 Foreseeability
 Damages foreseeable if losses a) arises in ordinary course of events or b) arise
from special circumstances that D had reason to know of loss
 Causation
 Damages must be proximately caused by breach
 Must flow naturally from breach
 Multiple Causes of Damage
 More than one cause, must show breach was a substantial factor in
causing it
 Example
- Contractor failed to install septic system. However, homeowner flushed foreign
objects into septic system that was not supposed to be put there. After flushing,
septic system caused flooding in sewage. Answer: Faulty installation was a
substantial factor in the flooding.
 Mitigate
 Non-breach party wont recover if could’ve made reasonable efforts to
avoid loss.
 Unsuccessful in efforts to mitigate may still recover if reasonable efforts
made
 Does not have to mitigate if causes undue burden, risk, or humiliation
 Mitigation Effects on Damages
- Not mitigated and recovery limited if non-breach party continued
performing and incurred higher costs.
- Didn’t seek replacement K, then lost profit unlikely recoverable
to extent could’ve been mitigated.
 Lost Volume Seller
 Could’ve and would’ve successfully enter subsequent K, even if
original contract wasn’t broken and could’ve benefited from both,
he/she is a lost volume seller
 Subsequent K not a substitute for breached K
 Gets damages based on Loss Net Profits on Breach of K
Expectation Interests
General Damages
- Damages inherently foreseeable at K formation in ordinary course of events
- Presumed to have been in contemplation of parties at K formation
Type of Contract Measure of General Damage

Real Estate Difference between K price and Fair Market Value
at the time of the breach.
Employment Contract Extra cost incurred to buy substitute services.
(Employee Breach)
Employment Contract Salary due under the contract less any amount
(Employer Breach) earned in other employment.
Construction / Service Contract Cost to complete minus Unpaid part of K price or
(Contractor Breach) the diminution in value (DIV)
Construction / Service Contract Costs spent up to breach PLUS profit contractor
(Owner/Contracting Party Breach) would’ve earned had K performed.
Consequential Damages
- Extra losses incurred from special situations
- Recover if breaching party knew or had reason to know of loss at K formation
- Must be communicated to D, must’ve known, or should’ve known.
- Examples of consequential damages
- Lost profits arising from collateral contracts.
- Loss of use
- Breach causes one K cause breach of another
- Injury to person or property caused by the breach.
- ∏ incurs fines or government-imposed fees because of the breach.
Incidental Damages
- Reasonable costs incurred in effort to get substitute K
- Smaller amount than general and consequential damages
Note
- Don’t confuse incidental costs w/ replacement costs.
Example for Incidental Damages:

- Baker hired broker for $200 to find other apple seller to keep schedule and bakery.
Adjustments & Offsets

To avoid overcompensating D, P’s damages should be offset/adjusted.
Examples of Offsets
- Prepayments
* E.g. Owner gives painter $250 to buy supplies. Painter expects cost to be $4000 & profit $1000.
Owner breached. Answer: Prepayment of $250 should be subtracted from total amount.
- Breach results in cost saving
- Breach results in gain for non-breach party
Additional Notes
- If something can be used in another job, subtract it.
- Cts usually award only one of interests, but in some situations, two or three are blended together.
Overcompensation Example
- K price (100K), $100 paid to broker, but made 120K for selling the same house. Answer: He’s put in
better position because he made 20K more than K price, thus no general damages. Incidental damages
might not be awarded either.
Undercompensated Example
- K price of 100K btwn Seller & Buyer, but Seller breached and Seller made 120L
Hadley (Fully Read)

Facts: Ps owned mill & mill stopped by breakage of crank shaft & to get a new shaft, Ps had to ship crank
to D. Ps sent servant to D’s office & told them that the mill stopped & must be sent immediately & D said
that if crank shaft was delivered by noon, it would be shipped and delivered the following day. The
following day shaft taken to Ds and was paid shipping price, but delivery of shaft was delayed.
Holding: Because P’s never told D at time of shipping K that delays would result in lost profits for P, the
loss of profits were not foreseeable at K formation.
Brown (Fully Read)
Facts: Damages claimed by P, tenant, from a leaking roof.
Holding: Here, because the CEO was able speculate as to what caused the leak when the roof came down,
this means that the leaking roof was proximately caused by failure to maintain exterior walls.
Mitigation Problems
4. Facts silent as to the timing that machines have to be delivered. Although special circumstances, it was not
communicated at K formation to the Manufacturer. Thus, foreseeability not met.
5. Not analyzing whether D had a good reason to breach. ER breach for general damages here: Salary in current K
minus salary of other job. Here, EE can recover 15,000 as salary due under original K. However, this is not
subtracted to other job because not enough facts to show this.
Employment Contracts
Measures of Employee Breach
o General Damages
 Additional cost incurred by the employer to purchase the same services.
 One issue that comes up when an employer hires a replacement is whether the
higher salary that is paid provides the employer with a more experienced
worker. If so, then the employer is put in a better position than if the contract
had been performed.
o Consequential Damages
 (See Rules for Foreseeability, Causation, Certainty, Mitigation)
 Lost profits might be awarded if the employee’s skills are unique and cannot be replaced
 Note: Must mitigate to recover consequential
o Incidental Damages
 Recruitment costs to locate the new employee and may also include the cost to train the
new employee.
o Specific Performance
 Specific performance not apply to employee breach
 However, courts may prohibit an employee from working for a competitor.
Measures of Employer Breach
o General Damages
 Salary due under the contract Minus any amount earned in other
employment.
 Issue: What period of time?
 ER breached by not following proper termination procedures, Ct has to find out
how long EE would’ve stayed w/ Co:
o Back Pay – salary lost from the breach to the time of judgment.
o Front Pay – amount of salary that the employee would have earned in
the future after the judgment had the employee stayed with the
company.
 Damages for harm to EE’s reputation.
 Must mitigate to recover Consequential

 Fees paid to find a new job
o SUB-RULE: Mitigation & Alternative Employment
 Essay Rule for Employer Breach:
- A wrongfully discharged EE Must make reasonable efforts to find substantially
similar employment otherwise damages reduced.
- But EE does NOT need to mitigate by accepting other job if results in undue
risk/burden/humiliation:
1) if different job in same line of work as original job (teacher v. clerk)
2) Similar status (Supervisor v office clerk)
3) EE’s education
4) Training & Experience
5) Risk/Danger
6) Same Geographic area (distance compared to prior job distance)
Real Estate Contracts

Measures of Real Estate Ks
 General Damages
o Difference between the contract price and the fair market value at the time of the breach.
o Differences between Seller Breach and Buyer Breach
 General damages are measured by the same standard regardless.
 If Seller breaches and FMV is less than K price, Buyer not incur general damages.
 If Buyer breaches and Seller resold prop for higher FMV, Seller didn’t incur general
damages
o Establishing Certainty for FMV
 Two ways:
 (1) Subsequent sale within a reasonable time and
 (2) Comparable property sales.
 Subsequent Sale within reasonable time
 Time between the breach and the resale not within a reasonable time, then resale
price uncertain since values vary
 Comps
o Comparable sales of similar property in the same area sold within a
reasonable time of the breach.
 Recovery of Down Payment
 Seller Breach – Buyer can recover down payment plus general damages
 Buyer Breach – any down payment buyer made serves as an offset to damages
owed to seller.
- Ex: Buyer made a down payment, but breached too. Down payment is
subtracted from total recovery.
 Consequential Damages
o (See Rules for Foreseeability, Causation, Certainty, Mitigation)
o Seller’s opportunity missed or have pay interest on a loan
o Buyer’s Lost Profit
o Loss of Property Use
o Note: Must mitigate to recover Consequential damages
 Incidental Damages
o (See Rules for Foreseeability, Causation, Certainty, Mitigation)
o Costs associated with maintaining a property before it is resold can also be recovered.
 Specific Performance
o Award Specific Performance b/c real estate is always considered to be unique, thus delivery of
interest of land meets expectation interest.
o Usually not a remedy for a seller
 Real Estate Leases & Mitigation
o The modern day approach is to require a lessor to mitigate, though some courts still apply the
older rule to commercial leases
Roth v Speck
Facts: Had special abilities, so hard to hire someone else with same talents. Wasn’t able to hire someone else with
similar talents, thus hard to determine the difference of the salary due under K and other salary.
Holding: Here, no standard measure applies, instead difference between K price ($75 per week) and FMV ($100 a
week) of person’s services, thus the 24 weeks remaining of K is FMV for services.
Construction and Service Ks

Measures for Construction and Service Ks
 Contractor Breach
o General
 RULE: Additional Cost to complete minus Unpaid part of K price OR Diminution in
Value (Diff between value of property constructed AND value of performance if
completed)
 - DIV awarded if Cost of Repair is excessive (disproportionate) to results obtained.
- Following factors award DIV:
o Contractor substantially performed
 Partially breached rather than total and material, means non-
breaching party got most of the benefit w/ only minor
deviations.
o Contractor intentionally breached
 Intentionally breached K to deny benefit to non-breaching
party, so liable for high repair cost
o Breached promise is incidental to the main purpose of the contract
 If Breached promise incidental to main purpose of K, DIV
awarded b/c non-breaching party gets main portion of benefit
o Completing the repair results in economic waste
 Unreasonable cost if the repairs require a substantial
tearing down of the structure resulting in unreasonably large
& out of pocket expenses
 Courts will take into account whether awarding the cost to
repair would result in a windfall to ∏.
 A windfall occurs when ∏ is unlikely to actually
make the repairs.
o Aesthetic Considerations
 Ex: Couple enter K w/ builders to build a home of their
choice. Specifically wanted a more natural, rusty look than
other kinds of siding. But builders didn’t install the natural
look on the siding. Holding: Aesthetic consideration makes
COR reasonable b/c they put importance on natural
appearance of home.
 Examples:
 Lost profits
- Ex: Builder’s construction delays proximately caused loft profits for
Alpine because Alpine EEs testified manufacturing, storage, and
shipping facilities in the current plant were inadequate to supply
Alpine’s new and former customers. Two expert witnesses testified
regarding delays caused by delay, thus causing the delay. Thus,
causation and certainty, and foreseeability are met.
 Injury to person or property (Builder builds stairs, collapses, & injures owner)
 Loss of Use
 Extra Living Expenses
- Ex: Additional rent or living expenses caused by contractor’s 5 month delay of
constructing the apartment
 Make sure to make a distinction between the costs for finding a replacement contractor
and the costs associated with hiring that replacement contractor
 Courts may order that a breaching party specifically perform
K if: (1) money damages are inadequate, (2) the terms of the
contract are certain and definite, and (3) it is feasible for the
court to supervise the performance.
o Awarding both COR and Diminution of Value
 Contracting Party’s Breach

o General
 RULE: Cost spent by contractor up to breach plus Expected Profit (K price MINUS
Total Costs)
 If the contractor has begun the work, then the contractor has likely incurred some but not
all of his costs.
 The contractor should stop working at this point; otherwise, his recovery may be
limited.
o Adjustments
 This is done because the contracting party may have prepaid some of the contract price or
the contractor was able to reduce some of the costs by mitigations. You will then have to
subtract those amounts from the calculations.
 Prepayment: Subtract to avoid overcompensating
 Mitigation: if able to reuse materials or recoup costs, subtract costs from total recovery.
 Exception: Loss Volume Seller
 The profit from a replacement contract does not offset damages of the breached
contract provided that the service provider has capacity to do both contracts.
 (See Rules for Foreseeability, Causation, Certainty, Mitigation)
(Fully Updated Above: YES)
UCC Remedies
 RULE: The remedies provided by this Act shall be liberally administered to the end that the aggrieve
party may be put in as good a position as if the other party had fully performed …. – UCC § 1-305(1).
o UCC remedies are limited by certainty, causation, foreseeability, and mitigation.
 Seller Breaches, Buyer’s Remedies
o Buyers can recover (1) general; (2) consequential; and (3) incidental damages.
o General Damages
 A seller may breach by:
 Non-Delivery
 Failure to make Perfect Tender
 Anticipatory Repudiation
 Breach of Warranty
Buyer retains the goods.
 Buyer Rejected Non-Conforming or Non-Delivery Framework
 RULE: If Seller didn’t deliver or delivered non-conforming goods that buyer

rejected or repudiated K, recovers:
1 Price paid, AND
2. EITHER cover damages OR market damages PLUS incidental and
consequential damages.
 Recover Price Paid

o Can recover money paid in advance
 Cover Damages
o RULE: Buyer can “cover” reasonable substitute in good
faith without unreasonable delay
o Measure: difference between the cost of cover and the
contract price PLUS incidental or consequential damages
o Subtract saved expenses
 Good Faith
o A buyer will not receive cover damages if the replacement cost is less
than the original contract price.
 Without Unreasonable Delay
o To avoid increase in damages when rising market
 Reasonable Substitute
o OK if not identical
o NOT OK if replacement is really different
o In order to receive consequential damages, a buyer must make
reasonable attempts to cover but he doesn’t necessarily need to be
successful so long as he tried to find another source.
 OR
 Market Damages
 RULE: Non-delivery or repudiation by the seller is:
 Difference between the market price at the time when the buyer
learned of the breach and the contract price PLUS with any
incidental and consequential damages, but less expenses saved in
consequence of the seller’s breach.
 Market price is to be determined as of the place for tender or, in cases
of rejection after arrival or revocation of acceptance, as of the place of
arrival.
 Cannot recover both cover and market damages, otherwise overcompensating
o Part Cover, Part Market Example: Buyer could pick cover for part
and market damages for rest.
 Example: Part Cover, Part Market
 Determining Fair Market Price

o At the time that the buyer learned of the breach.
o Place of tender
o At time of Repudiation
 Buyer Accepted Non-Conforming Framework

RULE: If the buyer accepted the non-conforming goods, then buyer may recover warranty
damages PLUS incidental and consequential damages.
 Warranty Damages
 If a buyer accepts the non-conforming goods, he cannot seek cover or market
damages.
 RULE: Difference at the time and place of acceptance between Goods as
Promised and Goods as delivered.
 Non-Conformity
o Delivers Non-Conforming goods

Notice Requirement
o Buyer should notify Seller of non-conforming goods within reasonable
time
 The UCC specifies three general categories:
 (1) Costs associated with rejected goods such as inspection, storage and
transportation costs.
 (2) Costs associated with making a cover purchase – brokerage fees.
o Note: The difference between the cover price and the contract price is
not an incidental damage. That would be the cover damages.
 (3) Any other reasonable expense incident to the delay or other breach.
 Example: Lost Profits
o Cancellation
 If the seller breaches or repudiates, the buyer may cancel the contract.
 Cancellation is not automatic.
 Cancellation doesn’t prevent the buyer from seeking damages.
 All of the common law requirements and limitations of SP are equally applicable to the
UCC. (see above)
 Buyer Breaches, Seller’s Remedies
o Note: No Consequential Damages for Seller Remedies.
o General Damages
 RULE: Where the buyer wrongfully rejects or revokes acceptance of goods or fails to
make a payment due on or before delivery or repudiates with respect to a part of the
whole, then the aggrieved sellers may
 (1) withhold delivery of such goods;
 (2) stop delivery;
 (3) receive ONE of the following damages:
 (a) resale damages; or
 (b) market damages; or
 (c) Seller’s Expected profit; or
 (d) recover the contract price.
 (4) and incidental damages PLUS (5) cancel the contract.
 Consequential Damages Generally Not Available
 Most courts deny any damage characterized as consequential damages since the
remedies provisions do not specifically authorize consequential damages.
 Resale Damages
 RULE: The seller may resell where the resale is made in good faith and in a
commercially reasonable manner the seller may recover the difference
between the resale price and the contract price together with any incidental
damages allowed, but less expenses saved in consequence of the buyer’s
breach.
 Notice
o In private sales, seller must give buyer reasonable notice of his
intention to make the resale.
 Good Faith and in a Commercially Reasonable Manner
o This is to prevent an insider transaction.
 E.g., seller resells the goods to a friend or relative at a price
well below the market price in order to increase the damage
award.
 Market Damages
 Only Available if Seller didn’t resell goods.
 RULE: Difference between the market price at the time and place of tender
and the unpaid contract price PLUS incidental damages
 Subtract expenses saved in consequence of the buyer’s breach.
 Part Resale/Part Market Damages
o Some situations, Seller gets resale damages for resold goods and
market damages for not resold goods.
 Preference to Mitigate
o If the seller could’ve resold the goods at a price that is higher than the
market price, then seller can still receive market damages
 Seller’s Expected Profit
 RULE: If the measure of damages is inadequate to put the seller in as good a
position as K performed, then Seller gets profit which the seller would have
made from full performance by the buyer, together with any incidental damages,
due allowance for costs reasonably incurred and due credit for payments or
proceeds of resale.
 This type of damages is appropriate in the following situations:
o Lost volume seller
 Seller had capacity to enter both Ks, even if original K not
breached.
o Partially manufactured goods
 If it is not commercially reasonable to complete
manufacturing and then resell the goods, courts will award a
measure similar to the Owner Breach of a construction
contract – costs expended plus expected profit.
o Intermediary who has yet to acquire goods
 Courts just award the profit the intermediary would have made
on the sale.
 Seller Action for Contract Price
o RULE: When the buyer fails to pay the price as it becomes due the
seller may recover, together with any incidental damages, the price (a)
of the goods accepted; and (b) of goods identified to the contract if the
seller is unable after reasonable effort to resell them at a reasonable
price or the circumstances reasonably indicate that such effort will be
unavailing.
o An action for the price is usually the equivalent of specific performance
since the buyer’s only duty is normally to pay the price.
o An action for the price is usually available in three scenarios:
 Buyer accepted the goods but hasn’t paid the price.
 E.g., In the purchase of golf balls, Buyer received and
inspected the golf balls and found them to conform to
the contract terms. Buyer started to use the golf balls
but never paid the purchase price. Seller may recover
the full purchase price.
 The goods were damaged after the buyer took control and
where the risk of loss had already passed to the buyer.
 E.g., Seller ships apples to Buyer’s warehouse. The
apples conform to the contract terms. Buyer doesn’t
turn on the air condition and the apples rot in the
heat. Seller may recover the full purchase price.
 Seller cannot resell the goods despite making reasonable
efforts to do so.
 E.g., Seller manufactures special clothing with
Buyer’s garish corporate logo on it. Buyer
wrongfully refuses delivery. Buyer’s logo is not
famous and there is no other market for the clothes.
Selle fsr may recover the full purchase price.
 Incidental damages to an aggrieved seller include any
commercially reasonable charges, expenses or commissions
incurred in stopping delivery, in the transportation, care and
custody of goods after the buyer’s breach, in connection with
return or resale of the goods or otherwise resulting from the
breach.
AM/PM Franchise v Atlantic Richfield (Fully Read)
Facts: P represented class of over 150 franchisees of ARCO that operated AM/PM mini markets and entered into
agreement gasoline agreement w/ ARCO for ARCO to only sell ARCO petroleum products, but Ps realized that
unleaded gas was being combined w/ oxinol. Ps claimed that their purchasers started having poor engine
performance & physical damage to their fuel, thus claimed gas didn’t conform to ARCO’s warranties re product,
and thus Ps claim they suffered business drop and loss of profits. Sought Breach of warranty, Breach of Implied
Duty, and Misrepresentation, and Exemplary damages.
Rules:
- See Rule for Warranty Damages
- See Rule for Consequential Damages
- Different types of Consequential Damages:
1. Loss of Primary profits: Would’ve earned if K not breach MINUS earned after breach occurred
2. Lost secondary profits: sales of other products suffered from breach
3. Good Will Damages: Business reputation based on consumer purchases and profits
Holding: Court held that ARCO knew at K formation that Ps were relying on the skill of the Ds to furnish
conforming gas. Further held:
Lost of primary profits:
- Buyers didn’t buy their gas from 1982 thru 1985 b/c of reasonable belief gas was defective and harm engines &
sold less gallons when ARCO delivered non conforming goods, thus P lost sales resulted from defective gas.
Lost of secondary profits:
- When number of customers stopped buying their gas, there was less customers buying their items at mini market
such as snacks, thus when primary product doesn’t conform w/ warranty, loss of secondary profits are foreseeable
too.
Mitigation
- Couldn’t mitigate harm by buying substitute K b/c in same business, thus no existence of alternative K.
Loss of goodwill:
- No gas reputation hurt because ARCO cured the breach by stopping delivery of non-conforming goods.
Other Damages
 Punitive Damages
o RULE: Not recoverable for breach of K unless breach is also a tort.
o Examples where Punitive Damages are available:
 Bad faith insurance claims
 Bad faith employment claims
 Tortious breach: Fraud, malice, gross negligence, oppression
 Attorney’s Fees
o RULE: Each must pay their own attorney fees regardless of the outcome unless an exception
applies.
o Exceptions where the court would allow attorney’s fees as damage awards:
 By statute (e.g. Copyright Act allows it if prevails)
 Fed. R. Civ. P. 11
 By agreement
 Collateral litigation: Consequential damages for defending litigation against third party
 Awarded if party acting in bad faith
 Emotional Distress Damages
o RULE: No Recovery unless (1) breach of K causes bodily injury OR (2) serious emotional
distress was a particularly likely result
o Certainty as to ED is speculative.
o Serious emotional distress as a likely result
 Serious Emotional Distress is Foreseeable at K formation if bargaining for emotional
security
o Common examples where Serious ED results from breach:
 Carriers and innkeepers w/ passengers
 Proper disposal of dead bodies or messages of dead bodies (K btwn mortuaries &
grieving families of deceased person breached)
 Sudden impoverishment or bankruptcy
 Negligent loss of property (i.e., family heirlooms)
 Prejudgment and Post-Judgment Interest

o Prejudgment Interest
 Interest from the date when the breach caused damages to the date of judgment, only if
damages are liquidated (Knows w/ certainty the dollar amount of damages)
 Courts have discretion on whether to award prejudgment interest.
Example of Non-Liquidated Damages
- Pain and Suffering
- Loss of enjoyment of life
Example of Liquidated Damages

- Certainty as to damage amount of an item, such as the FMV of boat
o Post-Judgment Interest
 Interest on the damage award from the time of the verdict to time of actual payment.
 Alternative Award: Nominal Damages
o RULE: If the breach caused no loss or if the amount of the loss has not been proven, nominal
damages of $1 awarded.
o Example:
 S in K w/ B for 1,000 shares for $10 a share, but evidence shows B could’ve bought
1,000 shares of stock for $10 a share, thus suffered no loss, so only awarded nominal
damages for $1.
o Example:
 College teacher in K w/ publisher in return for royalties, but publisher breached by no
publishing. Ct held damages uncertain b/c no royalties lost b/c his first book and no evid
of sales for similar books. Thus, nominal damages of 6 cents.
 Agreed Damages: Liquidated Damages
o Intro
 Parties agree at K formation on compensation amount if there’s a breach.
o RULE: Courts use a three-part test to distinguish between an enforceable liquidated damages
clause and a penalty:
(1) Intended for liquidated damages
(2) Not operate as Penalty
(3) Difficult to Estimate damages and
(4) whether damage amount was reasonable forecast of the harm caused by breach
o Liquidated clause not enforced if penalizes for breach
 Cts look at Plain Meaning of language
o Liquidated clause not enforced if disproportionate amount to anticipated or actual harm
o If difficult to estimate damages, Cts consider agreed damages reasonable.

Alternatives to Expectation: Reliance Damages
 RULE: Alternatively, may recover expenses made in reasonable reliance on breached K.
o Limits on Losing Contracts: Damages subtracted if Defendant can prove w/ certainty that P
would’ve lost money if K performed.
 When to use reliance damages:
o Expectation damages are too Uncertain or Unforeseeable
o Cause of Action based on Promissory Estoppel
 Types of Reliance: Essential Reliance vs. Incidental Reliance
o SUB-RULE:
- Essential reliance expenses:
 preparation or performing costs for performance of K that was breached
o Ex: Loans or interests paid
 Always foreseeable at K formation.
- Incidental reliance expenses:

 extra costs incurred related to collateral contracts entered into in reasonable reliance on
breached K.
 Must prove expenses were foreseeable at K formation.
(Note: incidental reliance is not the same as incidental damages, so more similar to
consequential damages)
 Certainty, Foreseeability, Causation, and Mitigation applies to Reliance Damages.
 Foreseeability test different for expectation and incidental reliance damages.
 Losing Contracts
o Defendant must prove w/ certainty that Plaintiff would’ve lost money if K performed in order to
reduce damages.
o This limit exists so that the non-breaching party is not put in a better position by the breach.
Wartzman v Hightower Productions, LTD (Fully Read)

Facts: Hightower Productions LTD (Appellee) formed and hired Ira Billitz & J. Quinn for purpose of establishing
new world record for flagpole sitting. Eventually, Appellee hired Paul Wartzman (Appellant), as attorney, for
purpose of incorporating a venture. Appellee told Appellant that they needed to sell stock to public to raise $250,000
to finance project. After Appellee started selling stock, Appellant informed Appellee that no further stock could be
sold, because corporation was structured wrong and needed to get a securities attorney to fix the issue. Appellant
failed to prepare a memorandum and didn’t assure corporation made required disclosures to prospective investors.
Rule:
- If anticipated profits are too speculative, money spent in preparation for reliance in K are recoverable.
- Proper Measure: Preparation costs for performance of K MINUS any loss proven w/ certainty P would’ve lost if K
performed.
Issue: If anticipated profits are speculative, are damages incurred in reliance on K recoverable?
Holding:
- Yes.
- Appellants knew that success of venture was based on Hightower’s ability to sell stock and secure ads, so project
depended on corporation’s ability to sell stock to fund promotion. Project depended on corp’s stock to fund
promotion. Thus, in reliance, Appellee sold stock and incurred substantial obligations, thus breaching party proved
w/ reasonable certainty Appellee would’ve lost profits. However, foreseeability does not apply when client relies on
lawyer’s skills and knowledge. Moreover, as to duty to mitigate damages, Appellant not required to mitigate because
to hire a security specialist, it would cost $43,000 to place in escrow covering stock sold, didn’t have $10,000 or
$15,000. Thus, Appellant had no duty to mitigate because would result in undue financial burden and risk.
- P trying to recover money spent in corporation and other shareholders, and paid to employees, which are incidental
reliance costs.
Limitations on Damages
Definition: Change in Prognosis means an increased risk of harm.
1. Causation
a) Market Share
Manufacturers are liable for market share if:
1. all manufactures made product
2. P can identify which D produced product that harmed her (but for D’s producing this pill)
3. substantial share of total number of manufactures
b) Loss of Chance Rules

1. Traditional Approach
 P recovers lost chance if P shows that But for D’s conduct, P had 51% or more chance of getting better
results than the one P had.
o Example: But for my negligent driving, pedestrian had 51% chance of surviving from being hit)
o Example: One victim was a 3 year old with cancer who ingested contaminated peanut butter
sandwich and died. Had she not ate the sandwich, she had a 49% chance of surviving her cancer.
In a wrongful death action, can we establish 3 year old’s lost income was caused by peanut butter?
2. Increased Risk Allowed or all or nothing Recovery

 P recovers lost chance if P shows D increased harm to some degree, whereas other cts requires substantial
degree (E.g. common in Malpractice cases)
3. Modern Rule for Increased Risk

 P can only recover value of lost opportunity if shows D caused lost opportunity of better results.
Change in Prognosis Examples

1. P submits evidence that D’s negligent conduct reduced to 15% her 80% chance of salvaging a severed finger
(worth $10,000 in damages) and plaintiff’s evidence is persuasive. D submits no rebuttal evidence. What would be
the change of prognosis probability? What would plaintiff recover under the three approaches provided? Would P
win? How much?
(worth $10,000 in damages). D submits evidence that D’s negligent conduct did not have any effect on her chance
of salvaging a severed finger, but jury determines plaintiff’s evidence is more persuasive. What would be the
change of prognosis probabilities? Would P win? How much?
of salvaging a severed finger. Jury finds P’s evidence persuasive. In all jurisdictions, ,P recovers
of salvaging a severed finger. Jury finds P’s and D’s evidence equally persuasive. What would be the change of
prognosis probabilities? Would P win? How much?
Youst v Longo
Facts: Youst (P) entered horse, Bat Champ into race & Longo rode another, Brudder. Longo rode Brudder into
Champ’s track and hit him w/ whip and Champ finished 5th, while Brudder finished 2nd. Youst argued but for
Longo’s act, he wasn’t able to finish faster, thus sued for intentional interference w/ prospective economic
advantage.
Rule
Too uncertain to show high probability of winning sport contest but for D’s interference (See above)
Holding: Here, complaint alleged conclusory terms D’s interference caused P to lose chance to win more money and
merely stated that D’s whip caused Champ to break his momentum. Thus, it is too uncertain to show that but for D’s
interference, P would’ve won more money or contest.
Polluck Case
Facts: P exposed to asbestos. P wants to show that due to exposure to asbestos, now has 43% of having cancer. Ct
said 43% not enough to be high risk, unless he actually had cancer.
Rule:
To recover for injury, must show 51% or more likely than not that P’s risk increased (See above)
Holding: P didn’t offer expert opinion or other evidence that shows P would suffer more likely than not cancer in the
future. Thus, P’s showing of 43% was less than51% of having cancer. Thus, D’s act did not increase risk of cancer.
2. Certainty
a) Damages occurred if more likely than not P suffered harm
b) Reasonable certainty as to amount of damages
Other Certainty Rule

Pure Economic Harm for Negligence
- P wont recover if only injury is economic, unless Negligent misrepresentation.
3. Foreseeability
(See rule above)
4. Mitigation
P’ recovery may be reduced to point that P could’ve mitigated damages if doesn’t make reasonable efforts to
mitigate damages, but doesn’t have to mitigate if results in undue risk, burden, or embarrassment.
5. Credit For Benefit General Rule

If Defendant’s wrong act resulted in benefit to Plaintiff, then value of this benefit is subtracted (offset) from
Plaintiff’s total recovery.
Example: D wrongfully trespasses on P’s land near P’s house and digs up P’s land. The digging reveals an oil well,
which rains oil on P’s house. P sues for cost of repairing the holes and cleaning-up the oil and D argues credit for
benefit of P now owning oil property. Why will D’s argument fail?
Example: 205,000 but got credit for $215,000, which puts him in better position. Thus, no recovery in damages.
6. Collateral Source Rule

Payments for injuries from other sources or people (collaterals but not D) will NOT be subtracted from P’s total
recovery.
Example: D1 and D2 both crash their cars into P simultaneously and are deemed equally at fault for P’s injury. P
spends $24,000 for all of her medical treatment, which D1 paid for P in exchange for a release. My P recover
$24,000 for her medical costs against D2?
Equitable Relief
A) Equity Jurisdiction
Notion of Equity Jurisdistion
- Remedies developed by equity court
- Court worried about Fairness and Equality
Establishing Equity Jurisdiction

P shows money is not enough
Traditional Equity Inclusions

- Guardianships
- Trusts
- Probate
-Enforcement of Liens
- Quiet Title
Establishing Inadequacy
General Rule:
- Equitable relief not available unless when P’s legal remedy is inadequate
- Harm to P is irreparable when money is not enough to give full, complete relief, or as effective as equitable
remedy.
- Equitable relief is discretionary
Example of Adequate Legal Remedy

- Car that’s available all the time in the market means that there’s Adequate Legal Remedy.
Examples where money is not enough (Inadequate) to fix P’s damages

- Ongoing harm for having to file multiple claims
o E.g. P coming to court multiple times to recover damages
- Insolvent is when Someone unable to pay debt
- Unique Services or Land since No Substantially similar land or services
o E.g. Timber that’s grown for 50 years. Thus, unique because will take another 50 or more years to grow.
- Unable to get damages
o E.g. not sure how much will satisfy to make P whole)
- Money not enough for Civil Rights claims
o Claim to stop using chokehold or stop Agnostics from making kids pray every morning. Thus, money wont
fix this issue)
- Property has special meaning to P
Rule (Pardee)
- P can get injunctive relief to prevent cutting timber b/c Money wont be enough to recover entire land.
Pardee v Camden Lumber Co

Facts: P sued to stop (enjoin) D from cutting timber on his land. An order was issued eliminating injunction to
prevent cutting of timber. P appealed.
Holding: Timber is highly valued, so once cut, it takes a long time to regrow. Thus, monetary award for value of
timber is inadequate to compensate owner for removal of it. Thus cutting of timber by trespass may be enjoined.
Hypos for Inadequacy

1. SSA Foods, Inc., 434 N.E.2d 460 (1982): A contract between the seller of a tailor shop and the buyer included an
enforceable covenant that seller would not use it’s business name (Gionatti’s) or compete with the buyer for two
years. Nevertheless, one month after the buyer took over the business, seller started a rival tailor shop called
Gionatti’s, in direct competition with buyer. In an action seeking an injunction, buyer’s best argument that the
remedy at law is inadequate would be:
I. Irreplaceability based on uniqueness
II. Difficulty of calculating damages
III. Continuing harm and need for multiple law suits
a. I only
b. I and II only
c II and III only
2. In which of the following situations would the plaintiff likely succeed in establishing inadequacy:
I. Defendant subjected plaintiff to repeated malicious suit regarding the same subject matter.
II. Defendant infringed the plaintiff’s trademark
III. Defendant city was preventing plaintiff from passing out protest flyers in a public place.
a. I and II only.
b. II and III only.
c. I and III only.
d. I, II, and III.
B) TROs and Preliminary Injunctions

a) Intro to Provisional Relief
b) Temporary Restraining order (TRO)

- 10-20 day injunction that’s awarded only in emergency and lasts until preliminary injunction motion can be heard
- TROs unique and granted ex parte
- Can only be prohibitory
2 Part test for TRO:
1) Adequate Notice for TRO

To obtain temporary restraining order, Defendant must have adequate notice and opportunity to be heard if
1) notice comes from Credible Source
2) Adequately informs D of prohibited act
2) General Rule: To get temporary restraining order:

1) Money is Inadequate
2) P will suffer irreparable harm if waits until trial
2) Likely to succeed on the merits of claim
3) Hardship P will suffer if there’s no injunction against hardship to D will suffer if injunction were issued
4) Whether injunction is in public interest
c) Preliminary Injunctions
Background:
- Issued after noticed motion and prevents irreparable harm from occurring while waiting for final trial
3 part for Prelim Injunctions:
1) Adequate Notice for Preliminary Injunctions

To obtain a prelim injunction, Defendant must have adequate notice and opportunity to be heard if
1) notice comes from Credible Source
2) Adequately informs D of prohibited act
2) Roe Test: For preliminary injunction to be granted, Plaintiff must show:

2) P will suffer irreparable harm if waits until final trial
2) Likely to succeed on the merits of claim
3) Hardship P will suffer if there’s no injunction against hardship to D will suffer if injunction were issued
3) Sliding Scale Approach: For preliminary injunction to be granted, Plaintiff must show:
2) Probability of success on the merits,
3) a) Likelihood of irreparable harm if waits until final trial; OR
o But if money is an adequate remedy of law, consider Serious Questions Approach
b) Serious Questions approach (i.e. Even if no chance of showing irreparable harm, P can show serious questions
on issue to be considered for litigation)
4) Does Balance of hardship tips sharply in favor of Plaintiff?
o Harm to P if injunction if not issued
o Harm to D if injunction is issued
Roe v Crawford
Rule: P can get a preliminary injunction if:
1) threat of irreparable harm to movant
2) balance between harm and injury that granting injunction will have on other parties
3) Movant’s probability of prevailing based on merits
4) Public interest
Holding: Here, P denied right to choose to terminate her pregnancy delayed procedure by 6 weeks shows irreparable
injury. P’s further delay is an irreparable harm v fewer officer at facility more at risk for having to give more
supervision suggests harm outweighs the facility at more risk. Because prison regulations prevented female
prisoners from being transferred out of institutions for abortions was not legitimate penological interest, this violated
Eighth Amendment thru 14th amendment, and thus there’s merits to prevail in case. Also, public interest doesn’t
agree with prison’s policy of preventing abortions since violated Roe’s constitutional rights. Thus, Public interest
does not favor prevention of abortions. Thus, Roe had a valid preliminary injunction.
Alliance for Wild Rockies v Cottrell

Facts: Wildfire burned out 27,000 acres in Beaverhead-Deerlodge Forest. 2 years later, Chief Forester of Forest
Service made an Emergency Situation Determination (ESD) to allow immediate start of logging of the land to avoid
delays that could result in Forest Service administrative appeals process. Supervisor of Bearverhead-Deerlodge
Forest requested that Chief Forester make an ESD to “prevent substantial economic loss to Federal Government,”
that there was “rapid deterioration and decay of trees needing harvesting,” and needed to be completed before winter
for loggers. Chief Forester replied “delay for project until after administrative appeals will cause substantial loss of
economic value to government,” “delay pushes back timber sales to October 2009 not allowing loggers to enter in
winter till Summer 2010,” and “deterioration of trees would cause loss of receipts to government for $16K and
absence of bids causes $70K government loss.” Thus, Forester said ESD not needed b/c there would be no impact on
quality of forest. AWR sues for injunction.
Rule:
Sliding Scale Approach: To get preliminary injunction, Plaintiff must show:
1) Irreparable harm – Inadequacy and whether it can ait until trial on the merits.
2) Probability of success on the merits (Probablity that were going to win) OR
(but even if you don’t think I can show probability of success, I can at least show serious questions)  (Plan B)
Serious Questions approach.
3) Does Balance of hardship tips sharply in favor of Plaintiff
o Harm to P if injunction if not issued
o Harm to D if injunction is issued
5) Public Interest
Holding: Here, Forest said that Project would harm its members ability to “view, experience, and utilize” areas for
recreational purposes, so they want to stop logging and sale of timber. If this sale continues, P would be deprived of
forest land. This would irreparably harm the movant. Moreover, AWR raised serious questions on merits for ESD
b/c 16K or 70K is not a substantial loss to government & 70K is speculative, and no loss of opportunity to making
achieve planting and dwarf mistletoe objectives since no evidence of unsuccessful bids and unclear if area was
infested w/ mistletoe. Balance of hardship favors AWR b/c harmed by not able to be part of administrative process
to voice their opinions that would’ve allowed them to challenge Project to make changes and no access to the forest
v D who would lose 16 to 70K would not be substantial loss. For public interest favors to help struggling local
economy and prevent job loss, along w/ health of the public. Thus, can be preliminary injunction.
(Fully Updated Above: YES / Wrote it: YES)
d) Status Quo Requirement

a) Intro
- Many courts impose additional requirement for getting TRO and Prelim Injunction
Split of Authority
- Mandatory: Court order D to do something, take specific action (as it changes the status quo)
o I.e. If injunction changes ways things were before, it changes status quo.
- Prohibitory Injunction: Court orders D to stop doing something (as it maintains the status quo)
Tests for Status Quo
1) Majority Rule:
Is injunction mandatory (such that its changing the status quo because its something new) or prohibitory (such that
its maintaining the status quo because there’s nothing new)?
- if maintains status quo, gets preliminary injunction
- if not maintained, hard to gets preliminary injunction
2) Trend Rule:
Does injunction change the last uncontested status immediately preceding pending controversy? (if so, changes
status quo)
PPS MC Questions
1. Which of the following injunctions is a court most likely to hold changes the status quo under the mandatory
prohibitory approach?
a. Defendant is prohibited from failing to curb its production of water pollutants by 75%.
b. Defendant is prohibited from flying the new Boeing jets it just purchased at Defendant’s airport
between the hours of 11:00 pm and 6:00 am.
c. Defendant is prohibited from tearing down the fence separating his property from plaintiff’s .
d. Defendant is prohibited from terminating plaintiff’s employment.
2. Which of the following injunctions is court most likely to hold changes the status quo under
mandatory/prohibitory approach?
a. Def is prohibited from failing to curb its production of water pollutants by 75%
b. Def. is prohibited from flying its newly purchased Boeing jets after midnight.
c. Def. is prohibited from tearing down the fence separating its property from plaintiffs
d. Def is prohibited from terminating Plaintiff’s employment
Hypos
1. Status quo- P was accepted and offered scholarship, but there was prohibitory
1. Rastrafarian –
- mandatory because its changing the status quo for infringing on his free exercise of religion issue by requiring him
to take a TB test, so give preliminary injunction.
- All restrictions placed on him that were not pre-approved, thus changes status quo.
- They want people to take the TB tests, thus mandatory
3. Off faculty for 2 year and then brings claim. Its been piecable.
4. if water had been flowing, your preserving it by ordering it to continue.
5. if D been playing licensing, and then order to continue, your preserving it to continue.
More Status Quo Hypos:

1. Injunction to require delivery company to deliver greyhounds to racing meeting?
2. Injunction to require P to continue franchise agreement?
3. Injunction to reinstate terminated college professor?
4. Injunction to restore water supply to pet cemetery?
5. Injunction to require TV station using P’s music in its new program to pay license fee?

C) Equitable Decrees: Discretion in Shaping Relief
Background:
- Just because P suffering injury, doesn’t meant they get any injunctive relief they want
- Instead ct tries to accommodate both parties.
Rule (Navajo)
- Equity ct has power to resolve problem and make remedy to achieve just and proper results.
Discretion in Shaping Relief Exam Approach

1. State rule
2. Look at possible decrees and pick best
3. Come up w/ alternative decrees, then explain why alternative is best
Navajo Academy v Navajo Unified Methodist Mission School

Facts: New Mexico corp created by Navajo Tribe operated prep school for Navajo youth. Academy moved when
invited by Mission School. As to terms & conditions, its understood that Academy was able to stay as much on
campus as it needed for its program rent-free and stay there as long as it provided quality educational program for
Navajo kids. To resolve issue of deteriorating campus, Academy and MissionSchool agreed that Academy would
apply to BIA for substantial sums of money to repair facilities & Mission School would commit to them using
campus for long term and send Academy copy approving long term lease w/ indefinite term of no less than 25 years.
Rule
Holding: Here, Academy reasonably relied on Mission School’s promise of long term relation by not looking for
new facilities to get funds to repair facilities, instead spend a lot of money on repairs and improvements of Mission
School’s campus. Mission School and Women’s Division benefited from quality program & renovations. Academy
has no alternate facilities to move to, even though made efforts to find one. Thus, would be inequitable to evict
Academy without reasonable opportunity to find new home.
a) Experimental Injunction
1) Allows D some time to make changes and continue as much as possible
2) Ct evaluates for anymore changes
o Ex: Boomer Atlantic v Cement: Experimental or D operated cement plant that caused nuisance of dirt and
smoke and P, nearby homeowner, sought injunctive relief, but Ct refused b/c of economic impact if shut
down.
o Options for Relief? D given some time make changes to their operations and Ct evaluates effectives of
changes over time to determine if it make anymore changes.
b) Delayed Injunction
1) Injunction may occur in future
2) D allowed some time to make changes
Note: Might not be enough time
Ex: Boomer Atlantic v Cement: Experimental or D operated cement plant that caused nuisance of dirt and smoke
and P, nearby homeowner, sought injunctive relief, but Ct refused b/c of economic impact if shut down.
Option for relief? Considered injunction to take effect in the future to allow D the chance to make changes, but Ct
rejected because not enough time to find new techniques to eliminate nuisance.
c) Conditional injunctions
1) Pay P to continue operations
o Ex: D operated cement plant that caused nuisance of dirt and smoke and P, nearby homeowner, sought
injunctive relief, but Ct refused b/c of economic impact if shut down.
 Options for Relief?
- Compensatory Injunction? If D compensated P by paying him, then D could continue its plant,
otherwise required to shut down.
Example:
Spur Industries v Del Webb Case
o Ex: Developer Del Webb lures elderly retirees to housing community where land is cheap. Community is
next to cattle feedlot that is expanding; Del Webb expands as well;Spur activities creating smell/flies. Del
Webb sues for injunctive relief- wants Spur shut down. Court finds nuisance.
o Options for Relief?
- Shut feedlot down. Del Webb had to move but pay Defendant for the move
d) Other Decrees
1) Shut it Down
2) Negative Covenants
3) Injunction to Stop Trespass
4) Injunction to Stop
Decree Hypos at end of Chapter

1. D producer steals movie script owned by P and begins making script into a movie? Theft of intellectual property.
What’s the Relief?
- Delayed Injunction – Return relief of lost profits
2. D football team contracts P football team's coach to try to persuade the coach to switch teams.
What tort? Interference w/ business relations
Injunction? Enjoying coach to not switch
What decree? Negative Covenant – Prohibit
3. D repeatedly trespasses on P''s land.

Injunction? Injunction to stop trespassing
What decree? No trespassing M-F, 7 days week
4. D’s factory operation causes noise nuisance to P on her residential prop.
Whats the possible decree? Delayed injunction to give factor reasonable time to make changes to their noise levels,
but allow them to continue.
6. Injunction sought to halt ongoing construction of a dam to protect endangered species--a fish called the Snail
Darter. The state already had spent millions on construction.
Is an injunction to protect the snail darter appropriate? Enjoin building of dam because they are on the edge of going
extinct. More building of dam, closer they are to being extinct permanently.
Example of Nuisance Hypo

Defendant runs a knife and scissor sharpening business. The business uses a large machine that efficiently and
ecologically sharpens items in bulk while using little electricity and creating few sharp and (for employees)
potentially dangerous fragments. However, the machine makes a high-pitched annoying noise that is creating health
issues for plaintiff’s animal shop (animals can’t sleep, some are killing their young) and is cracking some of
plaintiff’s shop windows. Plaintiff is suing for a preliminary injunction? Should court grant it? (Assume pl. stands
65% chance of prevailing at trial) How would the analysis change if the plaintiff were suing for a permanent
injunction? What decree should court issue?
Permanent Injunction Framework (PENDING)
D) Limits on Equity and Equitable Discretion to Deny Relief

Background
- Even if P suffered irreparable injury, Ct has discretion to deny equitable relief
- Ct has discretion to dent equitable relief in 2 situations:
1) D’s performance requires Court’s supervision for long time (Requiring D to operate store as a grocery store, so Ct
denies it if requires them to supervise them a lot)
2) Public Policy Considerations (Ct wouldn’t agree with enjoining animal shelters)
The following are Factors to consider when denying/granting equitable relief
a) Unfairness of Contract
Court may deny relief when contract is unfair (substantively unconscionable)
b) Money damages are inadequate

o Difficult to calculate Lost Profits
o Unique- Difficulty in finding Similar Substitute
o Person’s unique set of skills thru services
o Unlikely that damages can be collected
c) Terms of K are Definite and Certain

- Certainty of terms higher for Specific Performance? K should be clear so Ct knows what they must order D to do
Examples:
 How long will K be?
 What was the agreement as to the K?
d) Cannot be an undue burden for Court where 1) order requires excessive supervision of K or Unable to
make order (E.g. Delivery of Destroyed Good)
e) Mutuality or Ensuring Security of Performance
- show in good faith they are planning to perform
- Only Plaintiff has right to Specific Performance
f) Whether injunction in public’s interest
g) Defenses to Equitable Relief

1. Unfairness
o Court may refuse to give specific performance if breaching party:
a) made mistake, OR
b) would suffer unreasonable hardship, OR
c) Specific performance against public policy
Walgreen v Sara Creek PPS Example

Defendant Sara Creek (landlord of mall) had contract with Walgreen (tenant in mall) agreeing for duration of 30
year lease not to lease space to any other pharmacy. Fearing loss of “anchor tenant” Sara Creek informed Walgreen
that it intended to buy out that tenant and install discount pharmacy run by Pharmor in its place. Pl. Walgreen brings
action for injunction enforcing contract and prohibiting Sara Creek from leasing to Pharmor. Should court grant
injunction?
What if Sara Creek had covenanted to keep the entrance to Walgreen’s store free of ice and snow and breached that
covenant? If Walgreen sues for specific performance, should court grant?
Van Wagner v S & M Enterprise

Facts: Michaels entered into K to lease space of a building to Wagner Advertising (P) for 3 years plus 7. In 1982,
Wagner created a sign and leased it to Asch Advertising for 3 years, but January 1982sold building to S & M
Enterprises (D). S&M notifies Wagner about cancellation of Wagner’s lease was a breach of K. Wagner argues
specific performance should be granted because space is unique as to location for advertising purposes. At trial, it
was said that the lease was unique as to location for advertising purposes, but later higher ct denied this because Van
Wagner had adequate remedy.
Issue: Should specific performance be granted if money is adequate to make P whole again?
Holding: No. Value of uniqueness of leased space is no longer unique if certainty as to market of value of space can
be proven by looking as market values of other similar properties. Here, Van Wagner has more than 400 leases for
advertising purposes, which includes value between 1985 and 1992 and is not speculative. Thus, the lease of space is
not unique if many other similar leased spaces with a market value. Thus, damages can be calculated and thus
money is adequate.
Walgreens v Sara Creek

Facts: Sara leasing space to Walgreens and promise to Walgreens not to contract with other pharmacies , but lease to
competitor (Farmore) because they’re not doing well, but Walgreens didnt agree so sued for injunction.
Rule:
- After injunction awarded, each party can negotiate to dissolve injunction.
Holding: Injunction not proper because damages can be certain since there were other Walgreens where a
competitor was brought in. Walgreens profits if injunction awarded means that instead of Ct deciding what
Walgreens loses, then parties will negotiate to offer 1 million to Walgreen, but Walgreens says they will lose 1.5
million so want 2 million, but Sara says instead they get 1.7 million. Thus, after injunction awarded, D and P can sit
down and negotiate how to dissolve injunction.
Note: The more

Hypo
- Shoveling ypo ice from Walgreen’s store – Are damages uncertain? Nope because skill of shoveling snow is not
unique. Thus money is adequate.
Laclede Gas Co. v Amoco Oil Co

Facts: Amoco, supplier of gas, and Laclede as distributor, natural gas distribution mill. Residential units shifting to
natural gas. Output K, where a party will provide as much as P requires or as much as D produces. Agreement was
that Amoco was to supply gas for as long as mobile homes needed. Amoco agreed to install, own, maintain, and
operate, storage, and vaporize facilities and to deliver gas to customers. Laclede agreed to maintain and operate all
distributions and pay Amoco “Wood River Area Posted Price” for gas plus 4 cents for all commercial gas. Amoco
had shortage and breached because they sent letter saying that they are terminating because lacks mutuality since
unfair that Laclede can terminate but they cant. Laclede sued for mandatory injunction prohibiting continuing breach
by Amoco.
Rule
- Same Factors (above) considered in this case.
Issue:
2) Can Ct issue specific performance if ct can prove certainty for duty of each party and conditions to be made
under K?
Holding: Requirements for Specific Performance are analyzed. 1) For mutuality, Ct says that law doesn’t require
that both parties have mutual right to get specific performance since Plaintiff is the only one to have right to specific
performance. 2) Whether feasible for Ct to supervise performance of K, Ct says its discretionary and since public is
interested in getting their gas then its feasible for Court to supervise because not difficult. 3) For sufficient certainty
and definite terms, even if no exact time of duration of agreement, K said that last subdivision to turn to natural gas
in 10 to 15 years was certain. 4) For whether money is inadequate, evidence shows that Laclede would probably not
be able to find another gas supplier willing to enter long-term agreements and there’s uncertainty whether Laclede
can still use gas after end of K, thus difficult to determine damages, and thus money is inadequate to satisfy all
distributions. Thus, injunctive relief is proper.
Hypo
- P to be required to work as D’s maid. Thus, D wont force P to work as D’s maid, so yes undue burden to Ct.
Hypo 2
- cant order D to do something that no longer there such as carrots.
Hypo 3
- ct wont order wife to take kid to catholic church due to freedom of religion.
Harrison v. Indiana Auto Shredders Co

Facts: Indiana Auto Shredders Co (D) operated Shredder plant to recycle cars and zoned for shredder use and had
permit to use property for shredder. Russell Harrison and others who lived nearby or work there alleged that dust,
vibration, & noise coming from plant was a nuisance that it damaged property and put health at risk among residents
and workers and that their shredding violated pollution regulations. Residents and other people from radio, TV came
to testify about the noises, vibrations, and air pollution to be annoying and uncomfortable, but none of it shows
threat to health.
Issue: Balance between neighborhood’s demands for clean air and comfortable environment against economic
benefit of the car shredding company that caused pollution?
Rule:
- Nuisance Per accidons not an imminent threat
o Example: Car shredder plant acting in lawful business that becomes nuisance.
- Can enjoin if either polluter seriously and imminently threatened public health or caused substantial non-health
injuries
Holding: Here,
1) at trial, there wasn’t any evidence of imminent health caused by plant at trial. P invited radio, TV publicity and
list of officials and aide from U.S. Senator about heir observations about D’s operations, but none of parties proved
Shredder was a threat to health. And tests shows their operations was in compliance with ordinance. Thus, there is
no imminent threat to public health, and their operation cannot be prevented from continuing.
2) Balance of Hardships: Here, P and others’ minor discomfort and inconvenience by noises, while D is contributing
to society by shredding unused cars. Harm to D if injunction granted is that D wont be able to improve environment
by shredding unused cars that take up unnecessary space and deteriorate over time resulting in some risks to the
public if left without attention. Thus, D’s harm would outweigh P’s harm.
3) Public interest in shutting plant was that many people testified that the pollution was a nuisance to them, but there
is many people who favor environmental improvement by having unused cars shredded.
Additional Factors that Weigh Against Granting Relief
Injunctions against Criminal Activity

Injunctions will be denied for criminal act because
A) in equity, Criminal D doesn’t have right to jury
B) in equity, Criminal D can be barred from activity based on preponderance of evidence rather than beyond
reasonable doubt
C) In equity, Criminal D may be required to testify against self
D) Exception:
o Injunctions can be granted to enjoin criminals for public nuisance (e.g. meth home/prostitution)
Injunctions against Litigation

Injunctions will be denied for litigation when:
A) State Courts try to enjoin litigation in another state court when prosecuting criminal (state courts try to avoid
enjoining litigation in other state courts)
B) State Courts try to enjoin federal litigation (state cts have no power except where state has custody over prop as
part of litigation)
C) Federal Court try to enjoin against state litigation (Fedeal cts should respect State’s rights
D) Exception:
o Federal cts can enjoin State prosecution where State prosecution doesn’t ensure Constitutional
rights (e.g. state prosecution that’s 1) motivate by bias, 2) harasses; 3) unconstitutional statutes
Injunction Problems: Discretion to Deny Relief: Undue Burden to Defendant, Undue Burden to Ct, Public
Policy, and Equitable Defenses Problems
1.
Will order injunction to remove building.
Factors to look:
a) . interest of property? Less of property interest
b). Harm to P (P losing money because no parking space) harm to D (a lot of money to tear down building)
c). Public interest
d). Inadequate? No hard to calculate here as to how much profit making from parking
2.
a) inadequacy? Money doesn’t fix issue of home
b) nuisance? Harm to P outweighs harm to D.
c)
3.
2 different claims
a) trespass
-
b) nuisance
c) remedies –
Whether equitable relief plus money?
- RRV for the turtle collection
- Harm to P
- Harm to D if injunction issued, lose 50 million investment
- Public interest
- Inadequacy
Excessive Court Supervision
4. Ct may supervise for 6 months since simple and done a lot for tract homes.
5. Ct will say excessive supervision to supervise project for three years.
6. Ct may supervise since already building 2 spaces.
7. Ct may supervise since so many tasks involved between McDonalds and a franchisee.
Rule of Equities
- Balance of equities rule
- Weigh the parties’ relative equitable conduct (i.e., consider delay short of laches and bad conduct short of unclean
hands)
PPS Hypo
- D builds his home over P’s home? What facts help P to get injunction?
- Delay of P’s suit
- Encroachment on P’s side
- D tricking P
What facts P not likely to get injunction?

- P approves if D builds on their home but then wants to sue
- P abandoned land
- Courts use these defenses to deny equitable relief.

- Note: Unclean Hands are only used as Defenses, rather than claims (MC question like this on Final)
Clean Hands Doctrine

Intro
unclean hands (clean hands) means “he who comes to equity must come with clean hands.
o Plaintiff engaged in bad conduct so Court denies Specific Performance
a) Classic Example: When one partners doesn’t want to share stolen profits with other partner, who sues.
Green v Higgins
Facts:
- Higgins sold tract of land to Robert Brown and Mark Gilman.
- Higgins agreed that Brown and Gilman should have right to refuse to buy land.
- Higgins agreed to give McCullet, real estate agent, right to handle any sale that Brown and Gilman negotiated right
to refusal
- In 1971, Higgins entered K with Greens (P) for 30K
- Higgins and Greens dated K as June 2, 1971 to avoid having to pay McCulley commission.
- Higgins then told Greens that Brown and Gilman had right to first refusal to buy land
- Greens made fake K between Higgins and Green
- Then Higgins sent fake K to Brown and Gilman, who refused to buy
Rule:
- Person will be denied equitable relief if he’s guilty of fraud, illegal, or unconscionable conduct.
- misconduct must arise out of transaction (misconduct at the time) and is subject matter of suit
- In applying unclean hands, court trying to protect themselves
Issue: may person get equitable relief of transaction if there fraud, illegal, or unconscionable conduct?
Holding: NO. Here, Higgins and Greens dated K as June 2, 1971 to avoid having to pay McCulley commission and
fake K with higher price was made between Higgins and Green to deceive Brown and Gilman in not buying land.
This shows both were fraudulent, illegal, and engaged in unconscionable conduct. Thus, neither came with clean
hands.
Hypo 9
- Enjoin P for porn flick. Looking at P’s illegal conduct by using people without their consent such as underage
people.
Elements of Unclean Hands

1) Fraudulent, Illegal, or Unconscionable conduct
2) Related to subject matter of K they want enforced
3) Focus on Plaintiff’s willful behavior
Laches
Defined
- unreasonable delay by P in instituting or prosecuting an action where delay prejudices Defendant.
Different from SOL

- Not a specific period of time
- Can bar suit before or after specific period of SOL
Stone v Williams
Facts: Cathy Stone (P) daughter of Bobbie Jet. Jet and Hank Williams agreed that Willams might be Stone’s dad.
After being made a ward of state, she was adopted by Deuprees. In 1959. In 1967, William’s son, Hank Williams Jr
(D) assigned copyright interest in dad’s music. In the litigation, trial court assigned GAL to search for unkonw heirs
to William represent his interests and found Stone, but trial ct found Williams Jr was sole heir to dad and that Stone
had no rights to his songs. 1980, Deuprees told Stone that they were wrong for keeping info from her and that she
should find out about her parentage. She met with GAL and spoke with them about her rights to William’s music in
1985 and also sued Williams Jr and music companies.
Rule:
- Laches bars unreasonably delayed complaints where delay prejudiced Defendant
- Complaint is barred by laches if 1) unreasonable delay and 2) delay was prejudicial to Defendant.
- less unreasonable delay, the less prejudice
-
Holding:
- Here, 1974-1980 was not unreasonable delay because she considered Deuprees to be her real parents and wanted to
be loyal to them without any need to search for real parents to avoid any publicity of her personal issues.
- In 1980 when adoptive parents told her to find out about her parentage to see if she had rights to the music
copyrights of her bio dad, she procrastinated, wasn’t ignorant, wasn’t disabled up until 1985 when filed complaint
against Williams Jr. This was an unreasonable delay because it shows that she slept on her rights.
- Williams entered into numerous transactions with William’s Sr. music with impression that they would share
profits from William Sr. music. Also, P’s memory may not be too good after a decade plus 5 years, which will be
inconsistent with William’s Sr wishes of his music and death of some people who knew of these events occurred
awhile back and cannot testify to help support that William had inheritance rights to William Sr’s music. Thus,
delay was prejudicial. Thus, Stone claim barred by laches.
Capitol Case
Holding:
- EE should not be required to work in a service K.
- Preliminary injunction:
1. inadequate: EE is irreplaceable. Money cant replace his loss.
2. Serious Question Approach: Oaks raise serious questions that deserve to be considered for litigation
- Player isn’t forced to play for Warriors so can sit it in
-
Equitable Defenses Hypo Answers

9. P brought in prostitutes is illegal and related to K terms because P wasn’t allowed to do this.
10.
(Fully Updated Above: Yes / Wrote it: YES)
E) Negative Covenants for Breaching EE

Into
Negative COveneant for Breaching EE
- Specific performance not available, Ct may give Lesser injunctive relief
- Means order D to refrain from doing something not according to K
- Ex: EE ordered to refrain from working for other ER during period in K
- Ct ordering D your not going to work for other team or compete
- Ct wont order SP on personal service Ks (involuntary servitude)
o Hallmarks –
- Hard to tell if D giving 100 or 20%
o Opera singer at a concert – Lipsinging or not)
o Picher at a ball game
- Longer length of time suggests Personal service K
Three ways Negative Covenant triggered

1. P wants but cant gets SP of an employment K v. EE
2. Breach of covenant not to compete by seller

- People don’t want to deprive competition
- only enforced in limited to geography
- wont be enforced in broad geography
Ex: post enforcement covenant enforced because
3. Breach by former EE of post-employment covenant not to compete
- Not to be geographically over extensive
Rules
1. Evaluate normal issues for equitable relief (this EE cant work for another company during duration of K)
2. Can enforce covenants against sellers of businesses so long as reasonable
3. Post employment covenants disfavored: Needed to protect ER interest and reasonable as to burden on
former EE (K over but don’t want EE working for anyone after expiration of K)
Split Authority for Overbroad Post Employment Covenants not to Compete

- Refuse to enforce it
- If court can cross our unreasonable parts of covenant and covenant still makes sense, court can enforce it
- Rewrite covenant so its reasonable
Implied Terms
- Non-competition clauses may be enforced by negative injunction
- Ex: EE ordered to refrain from working for other ER during period in K
Limit on Injunctions
- Negative injunctions protect ERs against second harms caused by competitive losses
- ex: Opera singer performing for competitor
- If no competitive loss, Negative injunction not needed
Public Policy Concerns

- Noncompetition clauses against public policy Not OK (EE not able to earn living)
- Harm to D is greater than harm to P
Hypo Question from PPS

Barney, a brew master, signed a contract with Barbara to take her on as an apprentice. The contract
required Barney to teach Barbara the art of making beer until she becomes a brew master. Barbara agreed
to work for Barney for two years at $20,000 per year. She also agreed that she would not work for any other
brewery within the state of Texas for two years after the termination of her employment by Barney. Barbara
completed her apprenticeship and immediately quit her job with Barney and took a job with a brewery ten
miles from Barney’s brewery. If Barney sued Barbara for breach of contract in a blue pencil jurisdiction, he
will most likely:
A. Lose. The covenant is against public policy.

- Correct because not being able to work for two years after termination of K would force him
probably search for a job to earn a living. This is problematic because he might not be able to find a
job within his profession during the two years, and this occurs, then he wont be able to financially
support himself. Thus, this is against public policy.
B. Lose. Barney cannot prohibit Barbara from working in her chosen profession.
C. Win. It is unreasonable for Barb to work ten miles away from Barney’s brewery because Barney
shouldn’t have to compete with an employee he trained
D. Win. The court would uphold the contract because of Barney’s investment in training Barbara.
Negative Injunction Answers

11.
12. Unique skills

12.1 – no
12.2 – maybe. Taylor swift’s skills may be irrepalcable
12.3 – Maybe. There needs to be something special that irreplaceable
13.
- Geographically impossible that people would drive too far. Texas is very broad. And Cts don’t like to enforce
covenants against personal services.
-
- Blue pencil: if you delete words here, makes the covenat broader.
Full Injunction Hypo
(Fully Updated Above: Yes / Wrote it: Yes)
Contempt
- Definition: Offense against dignity of court.
- person who violated court order or disrupted court proceedings
- Ex: Failure to obey a subpoena
- Ex: Didn’t testify because you had a massage that day
Direct v Indirect
- direct:
- in judges presence and judge can say “find you in contempt” and no hearing needed by another judge)
-
- indirect: outside court (notice and hearing done by another judge)
Criminal v Civil
- Criminal: if purpose to punish, then criminal and gets criminal pro rights, proof is beyond reasonable doubt
- civil: if coerce or compensate and civ pro rights, then civil, can be a bench trial, proof is clear and
convincing evidence, but no right to counsel nor right to self incrimination.
Matter of Yengo
Facts:
- Yengo didn’t tell court about his absence
- Went on vacation and hasn’t been doing a lot of work on case
- Judge calls his house and speak to his daughter who tells judge that he’s on vacation and skipped trial
- Judge send him a telegram to appear in court
- Lawyer says he had business in Bermuda, and didn’t tell court because didn’t know if he would go to Bermuda till
late Wednesday.
- Judge said that he went directly in violation of what he instructed him because disrespected Court order, lack of
pro responsibility, and delayed court proceedings.
- Judge holds him in direct contempt
- Lawyer appealed
- Issue: Whether fair to issue punishment or direct contempt?
- When attorney doesn’t show up for court, should this be treated as direct or indirect contempt?
Rule
- Absent from court and excuse is outside of judge’s perception, this is a hybrid
- Direct contempt in presence of court is conduct that judge can determine to be offensive and obstructs court
proceedings, but not done in presence of court.
- unexplained absence and inadequate excuse is a direct contempt
Holding: Here, he went on vacation for business and didn’t know if he would go to Bermuda till late Wednesday.
This is an unexplained absence and inadequate excuse because this is not the type of excuse that would urgently
require lawyer to be absent in court. The priority was to his clients in a case that required his attention consistently,
given that the judge considered time and punctualoity to be of essence.
Of what force is an Injunction order?
- treated much like criminal statutes: Court discipline violators and court interprets them like statutes.
- judge crafts injunction, so they got a lot of enforcement power
Degree of Specificity
FRCP 65(d): AN injunction shall describe reasonable detail… The acts or acts sought to be restrained.
Degree of Specificity Required
H.K. Porter v. Nat’l Friction Prods

Rule
- If decree merely referenced a contract, cannot be held for contempt.
- An injunction must describe in reasonable detail the acts sought to be described.
- Should include a judicial command.
- Cannot issue injunction that merely incorporates another document (not specific enough)
Holding: Here, judgment didn’t use language that turned K duty into an obligation. Didn’t provide details as to who
had what had what obligation under K, instead incorporated a document. Thus, this merely referenced a K, thus
cannot be held for contempt.
Playboy Enter v Chuckleberry Publg

Rule
- Party held in civil contempt if 1) clear and unambiguous order, 2) clear and convincing proof of noncompliance, 3)
party didn’t try to comply.
- Is it direct or indirect contempt?
Issue: Whether D distributed or sold PLAYMEN magazine in US when it made Internet site that had picture images
under PLAYMEN name?
Holding: Here, D provides access to Internet and services, PLAYMEN and PLAYMEN Pro. Picture images are
downloaded and stored and invites. This shows that Tattilo violated subsection 1(c) of Injunction by using
PLAYMENT internet site to distribute products in the US. Additionally, intent of injunction was to prohibit Tattilo
from selling PLAYMEN magazine to US customers. Thus, this is proof of clear and convincting proof of
noncompliance.
Classify Hypos
- Direct or indirect
- Criminal or Civil
- What kind of criminal and civil
1. civil and indirect and compensatory
2. Not direct because not in presence of court. This is outside of court, thus indirect and coercive
3. Civil and coercive because have key to jail cell. If it were criminal, they would order him to pay a fine of 10K or
go to jail.
Why does it matter whether criminal or civil? Procedure is different. Criminal contempt you get a jury trial and get
counsel and beyond reas doubt. For civil contempt, no right to counsel and less expensive
4. 10K to state is criminal contempt, but civil contempt to pay 10K per day for each violation thereafter.
5. if making them pay 10K is compensatory, need evidence as to what the damages were.
Another Rule
Once purpose for coercion ends, contempt order no longer valid.
Civil Contempt Requirements
- Noncompliance does not have to be willful
Criminal Contempt Requirements

- Noncompliance has to be willful (only difference with Civil Contempt)
COnsititutional Provisions on Imprisoment for Debt and Contempt

- No imprisonment for failure to pay civil debt (debtors prison)
- Exception: May imprison for failing to follow court orders (I,e, criminal contempt or coercive civil contempt)
- Exception to exception: Inability to pay (if contemptor can show that he doesn’t have money)
Hypo for imprisonment for debt

- no mortgage or rent
- notice and opportunity to be heard
- civil or criminal contempt?
- Violation of 13th amendment? Not telling him to work for a specific person so no
- Imprisonemntt for debt? Once you have kids, you need to support your kid. Not imprisoning him for being poor.
Collateral Bar Rule

Walker Case
- suit for contempt against protesters
- P asked for injunction against Martin Luther King and marchers
- locals issue injunction
- marching on Friday and Sunday to raise issues of
Rule
- Party charged with an invalid order cannot assert invalidity of oerder as a defense, even if invalidity is based on
Constitutional grounds.
- Only applies to criminal contempt
- Except: collateral challenge may be upheld if order was transparently invalid if the basis of challenge is a lack of
Personal or Subject matter jurisdiction or if contempt was civil
-
- we don’t want to leave civil right issues up to discretion of local officials

- Injunction should be challenged to dissolve injunction
-
Holding: AsMartin’s lawyer will ask to dissolve injunction, but not a very good strategy. Best strategy is to march.
Come to court and challenge order of contempt on grounds that’s unconstitutional broad, which contains a permit
process. Court says to challenge a injicnion to petition court to dissolve injunction. Constituton compeled alabama
to organize street parades without effort to disscolve or modity or to secure permit and
People v Conrad
Facts
- Cant picket on same side of street of abortion clinic. Picketing on sidewalk and engaged in unacceptable behavior.
Should be held in contempt, even if not named in injunction (people who come and engage in activity violating
injunction). They wave at Reece as he drives away to show no relation.
Issue: Are they bound by injunction?
Rule
- Nonparty who knowingly violates terms of injunction and have actual affiliation or membership with enjoined
party are subject to contempt (with those named in injunction relation with those who are new violating an
injunction)
- To act in concert, there has to be a relationship.
Holding: Here, appellants knew provisions of injunction and came to Vallejo to do what the enjoined parties were
not allowed to do. This shows that they knowingly violated the terms of injunction. But, there was no actual
relationship with enjoined party because Ross (enjoined party) motioned to Reece (nonparty) to go away and Reece
drove away. This does not show any affiliation with picketers. Thus, cannot hold nonparty to contempt.
Degrees of Specificity required – Contempt Hypos

1.2 – Is it specific enough? If yes, then contempt is OK. Here, Not specific enough to support a contempt
1.4 – Is it specific enough? Here, Is it wearing same colors or congregating in a certain area? Nope. Note: Behavior
has to be well-defined.
2.3 – Is there a relationship begween student and faculty? If yes, then should show some relation (planning,
communication to help cause).
(Fully Updated Above: YES/ Wrote it: YES)

Restitution
Intro
- Prevents D from getting benefits unjustly by P’S BEHAVIOR and remedy is restitution for D
- Sometimes we imply an agreement to pay (when rule only applies to medical professionals when fair to assume
that D would want services rendered, then Law will imply agreement to pay) –
o Unjust Enrichment Example: What can doctor recover? Doctor wont recover value of life instead recover
value of his services (cost of P to go out into Market place to perform medical services)
o Second Example: No win value of benefit for emergency situations.
- Specific Restitution: I want monetary value of whats been taken.
- Substitutionary Restitution: claims for equitable relief/segregation
- goal for restitution? P you cannot keep these gains so must give back to D
- Substantive claim
 Substantive claim for which courts award restitution? Unjust enrichment
 Money had and received: mail by mistake ends up in someone elses mailbox and if keeps that envelope
with cash in there, this is unjust enrichment. P should return this cash to D, who worked for it.
 Goods sold and delivered: Price not determine yet, there’s still an implied K.
 Use and occupaition of land: D had to disgorge of some profits
 Quantum meruit: P performed service for D
 Contract implied a law: Court implies at law that D must pay P money for services (P runs luggage store at
Union Stattion, D leaves suitcase in waiting room, P takes it and locks it, then D returns and P charges.
Here, Ct imply at law. It would be unjust to allow benefit of services without paying for it) AND there’s no
agreement here, but as matter of public policy
- Can sue for conversion and restitution
Impplied in Fact K – Ct implies K on intent for both sides to pay for services.
Implied in Law K – No meeting of minds or intent on parties to contract, but law will imply an agreement (D has
heart attack and P performs CPR)
Elements of Unjust Enrichment

1. Did D obtain benefit?
2.Did she obtain benefit at expense of P (e.g. P labor)?
3. Would retention of benefit without compensating P be unjust (unjust for D to keep benefit without paying P)?
Doctrine of Volunteer/Intermeddler
Doesn’t get unjust enrichment for following ways:
- Not force people to pay if didn’t enter K with that person
- If volunteered services, wont get restitution
- cannot recover for services not contracted for, as opposed to those who were requested services
- If P provided services but didn’t enter K with that person, then NOT Unjust because Volunteer/Intermeddler.
Mistake by P in Conferring Benefit
- Cannot recover for conscious errors of judgment (Uncle giving gift to nephew), as oppose to Technical error (clerk
mistakenly types an additional digit) can still recover.
Hypos on Unjust Enrichment

4. No. Uncle volunteered by making a gift
6. D knew there was a double payment but accept it along with D who knows there are being overpaid. Yes will get
unjust enrichment.
7. Conscious misjudgment, so no fault on B.
8. Was GC paid for work? Was he unjustly enriched? If he was paid, then not unjustly enriched.
Kistler v Stoddard
Facts
Rule
- One shouldn’t benefit from another’s innocent or unintentional mistake (Good Faith)
Issue: Whether Shannon should reimburse Stoddard for his cost of planting the wheat under the doctrine of unjust
enrichment?
Holding: Here, even if Shannon owned the land when he bought it, Stoddard didn’t know at time of planting wheat
of this sale to Shannon. He was justified because he normally planted wheat crop so that it can harvest next spring.
Value of wheat crop wasn’t even part of the negotiations of land, and Shannon knew of this at time of purchase.
Thus, Stoddard made an unintentional mistake, and Shannon shouldn’t benefit from this mistake.
- benefit to D? Payment of insurance and labor of clean up guy
- At expense of P? P did work
- Is it unjust for bank to keep benefit? Yes
Kossian v Am. Nat’l Ins. Co

Facts
Rule
- Person is accountable to other on ground that he unjustly benefits or unjustly suffers loss.
Issue: Whether unjust enriched party should be indemnified twice for same loss for labor and insurance proceeds
paid to D for work done by Plaintiff?
Holding: Here, when D took property, which P cleared debris, and received indemnity payments covering at least
part of cost for clearing property of debris. D had K to collect indemnity for losses resulting from fire, including
debris removal cost, but Plaintiff already fixed this issues by his work and wasn’t even paid for it. Thus, D was
unjustly enriched and P should recover for refund of insurance proceeds for his work done on property.
Knaus v Dennler
Facts
Rule:
Issue:
Holding: Ps volunteered to build a dam that benefits everyone.
Hypo of Restitution
1.2 – got 10 K
1.3 –
- general, loss wages, hospital bills
- restitution? Hitman gets 100K to run over D’s foot
2.
- owner didn’t know he took land with benefit

Additional Hypos
9. D converting P’s property into a higher value. Has D been unjustly enriched? Yes sue for Gain to the Defendant.
10. D infringed copyright. Yes unjustly enriched.
11. P can sue for unjust enrichment?
Where is unjust enrichment recoverable

1. over performance of K (P by mistake performend too many services)
2. D gained a double benefit and still accepted it
3. P by mistake conferred benefit on D (technical or logistical mistake)
a) Whether mistake is conscious?
b) who Is more culpable here?)
Substitutionary Restitution at Law

- Measuring in 2 ways:
1) FMV of goods and services received (how much does it cost D to go out into market to find someone to perform
similar services)
2) actual gain to D (how much value added to P’s deck)
Hypos p.180
1. FMV at time of conversion
2. FMV of Picasso painting
3.
4.
Campbell
- Gain is not very large? Was only in shelves for 2 months but was only used twice. Measure of gain
Holding: Don’t measure books as to how much they are used. Ct went with K price.
Failed Attempt to K hypo – Crooked architect

- 22K added as value (property market value increased)
- FMV of 33,500 conferred on D
Renovation of blgd hypo

- C lose because D benefit is impossible to measure (no benefit to D)
- In a different situation, reliance damages would be proper since P spent on preparation costs for improvements in
reliance of D’s promise
Hypo 3
- D never got benefit since didn’t get financing and never took title to Blackacre. Thus, P doesn’t get restitution.
Specialized Measures
Failed K
Minority Rule
- Requesting services from P confers a benefit to D
Majority Rule
- See Rule for Unjust Enrichment above
Fraud
- Benefit of Bargain
- Out of Pocket
Hypo on Restitution
6.
- T and W lied to
- has t gained benefit? $1000 of acre
- D gained benefit at expenses of P?
- unjust for D to keep $1000? Yes
- Recovery? $1,000
Breach of K Cases
Chambliss Bahner and Crawford v Luther

Rule for attorneys
- Because a client has the unqualified right to discharge his attorney, fees in such cases should be limited to the
value of the services rendered or the contract price, whichever is less.
- No rule to penalize client who want to terminate lawyer
- Client should have a trustworthy relationship with their lawyers
United States v Algernon Blair Inc

Rule for non-attorneys
- The measure of recovery for quantum meruit is the reasonable value of the performance, Restatement of Contracts
§ 347 (1932); and recovery is undiminished by any loss which would have been incurred by complete performance’
Chambliss Hypo
- What does It mean by K price as cap on P’s recovery mean? Percentage of value of K is Cap.
- $5000 is cap because its percentage of value of half of work.
One more Measure of Restituion for Breach of K Hypo

- Expectation Damages Rule: K price – FMV
- Yes there’s benefit
Freund v Washington Square Press

Rule
- Damages are not measured, however, by what the defaulting party saved by the breach, but by the natural and
probable consequences of the breach to the plaintiff.
- Court would have awarded reliance damages
- bbg,,GL
Olwell v Nye & Nissen Co

Rule
- If he was consciously tortious in acquiring the benefit, he is also deprived of any profit derived from his
subsequent dealing with it. If he was no more at fault than the claimant, he is not required to pay for losses in excess
of benefit received by him and he is permitted to retain gains which result from his dealing with the property.
(Fully Updated Above: YES / Wrote it: Yes)
Restitution to Party in Breach
Boat Hypo
- 4,000 unjustly enriched on D.
- No Subtraction of recovery for Lost Volume Seller
- K price minus total cost (12500 – 10,000) = 2500

- (gain – harm suffered by D for breach) = 1,000
Tort Claims involving property (personal and real)
Case 1
- didn’t sell ownership washing machine, stored it but where storeed was an issue. There was a labor shortage and
Owelll noticed they were using it for 3 years and offered to sell it for $600. D counteroffers for $50. P sues.
- There’s a major interference for using it for 3 years
- D gained? Yes
- at expense of P? Yes
- Unjust if keeps it? Yes
Meausre: reasonable value of D’s use of machine
Holding: Ct said P should get $40 for a month as labor savings
Measure of damages of machine:
1) FMV
2) RRV
Rule:
- If D was 1) consciously tortious in getting benefit, 2) pay greater of P loss or gain AND pay any profit gained
over and above immediate gain. If equally at fault then D’s liability capped by D’s gain.
- If no conscious tottious, don’t force to disgorge profits, instead pay RRV.
- Ex: D makes a lot of money but wrong about boundary line. If interference w/ P’s property rights, loss is
usually FMV or RRV, but GAIN can be large depending on how D is using property.
Case 2
Lower court says store entitled to $549.
Holding: Agreeing that she gained benefit for possession for book, award was too big so lowered to $9. She wasn’t
tapes at all.
Rule:
Conversion: can recover 1) RRV or 2) FMV
OR
Gain to D
Case 3
- D knows some of cave is under P’s property, but guiding tourists through P’s property and taking money from
tourist, but not once gone to P to give him money for using P’s land. P finds out and sues for injunction and
accountimg (share of D’s profits)
Rule
- Trespass to Land for Temporary trespass, then gets Reasonable Rental Value.
- Advtanages for suing for restitution when D has engaged in trespass to chattel
Holding: Agreed that P should get portion of profits but not profits from hotel. Hotel profits are due to D’s efforts,
not P’s efforts.
Case 4
Recovery If P sued for damages here?
- Nominal damages because no harm to land.
- D’s gain? How much does an easement cost in this area of country?
Rule
- D consiocusly decided to gain benefit of each ton of use of land instead of paying a legitimate amount to P.
Measure of Substitutionary Restitution at Law Problems
- When D take P’s property and mixes into larger product, Ct looks at percentage attributabl to P’s work
product compared benefit D gained.

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My Remedies Outline

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Remedies Outline

Definitions for damages:

Equitable Relief (aka. Known as Remedies in Personam)

Note: Not available for Service Ks

General Damages Examples

(Fully Updated Above)

Measures for Tort Damages

Limits on Tort Damages

Measures of Damages for Trespass to Land

- General Damages for Land

Measures of Damages for Conversion

Major Interference - Completely destroyed or Substantial

General Measure of Damages for Conversion

Best Example of DIV

Special Measure of Damages for Conversion

(Fully Updated Above)

Gavcus v. Potts (Fully Read)

Gen. Dam. Examples

Answer Explanation to Hypo:

Loss of Use Examples

Baram v Farugia (Fully Read)

FMV Destroyed if Title Transferred:

Welch v Kasasky (Fully Read)

Loss of use Examples:

Other Conversion Measures:

b. Replacement cost minus depreciation value

Tarahan v First National Bank (Fully Read)

(Fully Updated Above)

Measures for Personal Value

(Fully Updated Above)

Measures for Conversion

Place as in Type of Market

Property for Sale Example:

Measures for Sale or Personal Use

4. Loss of Crops Example

Trespass to Land Examples

- If deprivation is temporary, P gets Reasonable Rental Value.

Kuwait Airways Corp v. Ogden Allied Aviation- Serv. (Fully Read)

(Fully Updated Above: Yes)

Measures for Personal Injury

Acceptable for Jury

Not Acceptable for Jury

Measure of General Damages for PI

Measure of Special Damages for PI

Loss Earning Capacity Examples

Damages when P Dies

Dead P can recover damages: (below)

Damages for Wrongful Death

Delong v County of Erie (Fully Read)

(Fully Updated Above: Yes)

Measure of Damages for Misrepresentation/Fraud re K

How is FMV & K different?

Measure of Damages for Misrep/Fraud re K

Benefit of the bargain

Cost to make good

Benefit of Bargain & Out of Pocket Examples

(Fully Updated Above: Yes)

Measure of Damages for Nuisance

Permanent Nuisance Examples

Temporary Nuisance Example

(Fully Updated Above: Yes)

Available if D’s conduct is:

Punitive Damages Examples

Not Recover if: