Issues/Elements Rules Notes

1. Equitable Equitable relief consists of non-monetary remedies ex) TRO’s; Preliminary Injunctions;
Remedies/Relief that are granted when monetary damages are not Permanent Injunctions; Specific
sufficient or adequate to repair the injury suffered Performance; Replevin; Rescission;
by the P. Reformation; Ejectment; Declaratory
Relief.
Explains how courts handle a situation when a
monetary payment is not sufficient and requires a
defendant to perform their part of a contract.
2. Restitutionary A recovery based on the amount of gain to the ex) Unjust Enrichment; Equitable Lien;
Remedies defendant as a result of a wrong. Rescission; Replevin; Reformation, etc.
(legal
& Restitutionary remedies are imposed to prevent
equitable) unjust enrichment. They aim to award a plaintiff the
amount the defendant gained as a result of
wrongdoing.
Temporary A TRO is an order designed to deal with emergency Requires all 6 elements.
Restraining situations when it is necessary to preserve the status
Order quo long enough for a preliminary hearing. TROs can be issued ex parte, which
(TRO) Generally, a TRO lasts 7-25 days. Requires: (i) means without notice to the other party.
inadequate legal remedy; (ii) irreparable harm; (iii) Ex parte TRO are issued in extreme
balancing of hardships; (iv) public harm/status quo; circumstances. For ex parte, look for
(v) likelihood of success on merits; (vi) immediate preserving the status quo and preventing
harm. irreparable harm.
Preliminary A preliminary injunction is usually established as Requires 5 of the 6 elements.
Injunction an extension to a TRO in order to determine if court
intervention should continue after a TRO has been Drops immediate harm.
granted. It's a temporary injunction issued to
prevent injury from occurring prior to the Cannot be issued ex parte.
adjudication of the underlying matter. Requires: (i)
inadequate legal remedy; (ii) irreparable harm; (iii)
balancing of hardships; (iv public harm/status quo;
(v) likelihood of success on merits.
Permanent A permanent injunction is a court order designed to Requires 4 of the 6 elements.
Injunction avoid future harm, which can only been issued after
a full trial on the merits. In addition, a permanent Drops immediate harm and likelihood of
injunction will last until the court says so, which success on merits.
can mean indefinitely. For a permanent injunction,
requesting party must show an inadequate remedy
at law, irreparable harm, balance of hardships, and
public harm/status quo.
Inadequate The court must look at whether money damages are
Remedy at Law sufficient to compensate the plaintiff for their loss.
Additionally, the court will consider if the measure
of damages is uncertain or difficult to ascertain.
Uniqueness of an item contributes to uncertainty.

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Irreparable Harm Likely or probable that the plaintiff will suffer
irreparable harm if the remedy is not granted. A
mere possibility of irreparable harm is insufficient.
Balance of Here, the court must balance or weigh the hardships (not granted v. relief granted)
Hardships that each party would suffer if the remedy were P’s side. D’s side. Then balance
granted. indicating who has more hardship.
Public Harm/ When considering public interest, the court will Dual Test:
Status Quo assess if granting the TRO will cause harm to the Don’t apply both parts. One or the other.
general public. / However, the court may also look Look at facts to indicate which part to
at whether it is necessary to maintain the status quo apply. Status Quo test is more common.
between the parties until the underlying claim is Status Quo = last uncontested point
adjudicated. between the parties.
Likelihood of Requesting party must show that there is a Good faith basis for injunctive
Success on Merits likelihood that he will succeed on the merits of the relief/underlying claim.
underlying claim. The court will review evidence
supporting the requesting party, but not fully
analyze issues or defenses of the underlying claim.
Immediate Harm Requesting party must show that in the absence of a Only look to see if P will suffer
TRO immediate harm will occur. immediate harm.
Specific Specific performance is a mandatory decree
Performance ordering a party to perform a promise under a
contract. SP may not be used to enforce contracts
for personal services since it would amount to
involuntary servitude under the 13th Amen. In order
for the court to decree specific performance,
requesting party must show an inadequate remedy
at law, a valid and enforceable contract, satisfaction
of the conditions, mutuality of performance, and
feasibility of enforcement.
Inadequate A legal remedy is inadequate when money damages Note: this is where uniqueness of real
Remedy at Law would be speculative, the harm is not yet ripe, or in property/land comes into the discussion.
situations involving unique real or personal Land will always be considered unique.
property. Additionally, items can be unique.
Valid & There must be a valid, enforceable contract Look for statement indicating if the
Enforceable constituting an offer, acceptance, and consideration. contract is or is not valid.
Contract In addition, the contract terms must be certain and
definite.
Satisfaction Party must be able to show that their contract’s
conditions have been fulfilled, satisfied, or excused.
Alternatively, P can also claim that they are ready
and willing to perform.
Mutuality of Traditionally, specific performance would not be
Performance enforced if the remedy were not mutual, meaning,
not also available to the opposing party. However,
modernly, specific performance will be granted
even if the remedy is not mutual.

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Feasibility of In order to decree specific performance of a
Performance contract, the court must be able to reasonably
enforce and supervise the decree.
Replevin Replevin is an action for repossession or recovery
of personal property. Complaining party must
establish: (1) They have a right of possession; and
(2) There is a wrongful withholding by other party.
Ejectment Ejectment is an action for repossession or recovery
of specific real property. Complaining party must
establish: (1) They have a right of possession; and
(2) There is a wrongful withholding by other party.
Rescission Rescission is an equitable remedy applicable only
to Ks which allows a contractual party to cancel the
K based several different grounds, including
misrepresentation, mutual/unilateral mistake,
estoppel, etc.
Reformation The changing of a written agreement to conform to
the parties’ original understanding. Since it requires
a written agreement, it’s only applies to contracts.
Declaratory Used to determine rights, obligations, or status.
Relief
Equitable Based on theory that plaintiff is somehow
Defenses blameworthy and does not merit equitable relief.
Laches Laches applies when there has been an
unreasonable delay in asserting rights for an
excessive period of time, as determined on a case-
by-case basis, which results in prejudice to the
other party. The prejudice must be integrally related
to the case at hand.
Unclean Hands Doctrine that bars a party from seeking remedy
when they've violated conscience, good faith, or
other equitable principles in their conduct. Equity
demands that no person should benefit from his or
her wrongdoing. Courts look solely at conduct of
the requesting party (Plaintiff).
Equitable One who has led another to act in reasonable
Estoppel reliance on their misrepresentations of fact cannot
afterward assert their rights to seek redress. There
must be a representation, omission, or concealment
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Consistent, repetitive, or long-term
babysitting by the courts will not meet
this element.
It is not an action for damages, just
equity.
Only awarded against a D who has
actual possession of the entire real
property (not just trespass).
Grounds for rescission:
Equitable defenses - Mutual or
Unilateral Mistake, Undue Influence,
Estoppel, Misrepresentation, etc.
The original K is considered voidable
and rescinded.
Grounds for reformation:
Equitable defenses - Mutual Mistake,
Unilateral Mistake if the non-mistaken
party actually knew of the mistake,
Misrepresentation, etc.
It does not order anything to be done.
It’s not an obligation that anything be
done – it merely declares and/or clarifies
what those obligations are. It is just a
piece of paper declaring something.
Factors to consider include length of
delay, reason for delay, and prejudice to
party seeking laches.
The courts will also determine if the
conduct relates to the case at hand.
A legal bar to alleging or denying a fact
because of one's own previous actions or
words to the contrary.
 as to a material fact by the party to be estopped, and
the party seeking estoppel must reasonably rely on
the other's conduct to their injury.
Unconscionability Unconscionability is a defense in contract law that
describes terms that are so extremely unjust in
favor of the party who has the superior bargaining
power that is contrary to equity.
Typically applies to contracts of adhesion. (contract
drafted by one party (usually a business with
stronger bargaining power) and signed by another
party (usually one with weaker bargaining power,
usually a consumer in need of goods or services)
and the second party typically does not have the
power to negotiate or modify the terms of the
contract.)
Misrepresentation Misrepresentation of a material fact makes a
contract unenforceable, even if it is an honest
misrepresentation. Complaining party must show
that they actually relied on the misrepresented facts.
If the party is hiding a known defect, then there has
been a misrepresentation.
Mutual Mistake Where both parties are under a mistaken belief
regarding a material aspect of the matter in
question.
Unilateral Occurs where there is a mistake by one party as to a
Mistake material aspect of the matter in question. Relief will
be denied unless the party can show that the
unmistaken party knew or should have known of
the mistake.
3. Money When a defendant is asked to pay money to the
Damages plaintiff.
*Always start analysis for money damages with
compensatory damages rule.
Compensatory Meant to return P to the position they would have
Damages been in had the harm not occurred, which usually
includes reasonable attorney’s fees. To determine
the appropriate measure of recovery, the general
purpose of damages is to compensate the injured
party. In other words, to place the injured party in
the position as though no wrong had been
committed.
In determining whether to enforce a K
of adhesion, courts look first at the take-
it-or-leave-it nature of the form, then:
(1) subject matter of the K;
(2) parties’ relative bargaining positions;
(3) degree of economic compulsion; and
(4) public interests affected by K.
This is often confused with estoppel. EE
is broader - misrepresentation, omission,
silence. EE is not limited to contracts.
Will not be granted as a defense where
the mistake is as to a collateral fact.
Collateral facts are acts not directly
connected with the issue or matter in
dispute.
Money Damages in Tort:
No nominal or liquidated damages
allowed.
Money Damages in Contract:
No punitive damages allowed.
Tort Cases:
Special damages refer to out-of-pocket
losses, such as medical expenses and
lost wages, which can be proven.
General damages refers to damages not
measurable in market terms: pain and
suffering; emotional distress; loss of
consortium; future earnings; potential

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FMV can be determined from several sources,
including evidence of a resale Ks stemming from
the breach. Where property has been damaged or
interfered with, the fundamental measure of
damages is the reduction in FMV caused by the
tortfeasor. This reduction in fair market value can
be measured by a combination of evidence:
- Cost of repair
- Fair market value before the injury
- Fair market value after the injury
No mechanical rule can be applied with exactitude.
Expectation Intended to put the party in the position they would
Damages have been in had the K been performed. K damages
are measured by the difference between the sales
price of the K and the FMV of the property/goods
at the time that conveyance should have taken
place.
Reliance Reliance damages aim to put the P in the position
Damages they would’ve been in had the K never been made.
Reliance would compensate P for any expenses
incurred, but not for any profits that might have
been generated if the K had been performed.
Consequential Damages that were reasonably foreseeable, at the
Damages time of contracting, which arise due to the breach,
usually consisting of lost profits.
Incidental Incidental costs are costs that were not expected in
Damages the normal execution of the contract, but arose due
to the breach of the contract.
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exposure; and wrongful death.
In Contract Cases:
In contract cases, it’s not necessary to
separate special vs. general damages
because we already use expectation,
reliance, and consequential to categorize
the remedies.
FMV determined the same way as
compensatory damages.
When courts cannot calculate losses
with reasonable certainty (expectation
damages can’t be calculated), they can
allow recovery based on a reliance
interest.
Reliance only assesses damages for
costs incurred due to reliance on the K.
Not the same as expectation damages.
Usually applies when expectation
damages cannot be met.
Non-breaching party must disclose this
or breaching party must have reason to
know. Could also be accomplished
through reasonably foreseeable
damages.
Damages that can be proven to have
occurred because of the failure of one
party to meet a contractual obligation.
Consequential damages are more
indirect than incidental damages and
include losses such as lost profits.
Reasonable expenses incurred by one
party to a contract as a result of the other
party’s breach of the contract. These

Punitive Punitive damages are monetary recoveries not
Damages designed to offset the loss of plaintiff, but rather to
deter from harming others. They are intended to
punish and deter willful, excessive wrongful
conduct that is malicious, fraudulent or oppressive.
General measure is “up to 10 times” the award of
compensatory damages.
Nominal Give representational significance to a wrongdoing
Damages when no measurable harm was done and serve as a
basis for attachment of punitive damages when
compensatory damages are not applicable.
Liquidated A LD clause is considered unreasonable and
Damages unenforceable if it bears no reasonable relationship reasonable estimate of losses. LD
to the range of actual damages that the parties could clauses can reduce uncertainty as to the
have anticipated would flow from a breach.
Lost Doctrine allows for recovery of lost profits despite
Volume resale of the good if the seller can prove they
Sellers would’ve entered into both transactions but for the
breach.
A lost volume seller is one whose willingness and
ability to supply is unlimited in comparison to the
demand.
Although mitigation of damages is not possible for
a lost volume seller, where this issue arises, you
need to address mitigation.
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costs are directly associated with the
breach. (Costs to ship/store goods, etc.)
Punitives aren’t awarded alone. Must be
attached to compensatory, nominal, or
restitution damages.
The Sup.Ct. considers punitives that are
excessively high to be a violation under
the DP Clause.
Nominal damages are allowed in:
- Actions for breach of contract;
- Actions for violations of Constitutional
rights.
Nominal damages are excluded from
negligence cases.
A written clause providing for a
amount of damages by limiting damages
that might be too large or providing
damages that might be difficult to prove
with certainty.
To be enforceable, it must be a
reasonable estimate of the loss caused
by the breach. A LD provision is not
invalid merely because it is intended to
encourage a party to perform, so long as
it represents a reasonable attempt to
anticipate losses to be suffered.
Reasonableness is measured in light of
anticipated harm or actual harm
suffered.
The underlying idea is that the lost
volume seller would have recovered two
profits, not one, if the buyer had not
breached, so that a recovery of both
profits is necessary to put the seller in as
good a position as if there had been no
breach.
 Loss of Use Recovery for loss of use is limited to a period of
Damages time reasonably necessary for securing a
replacement. Damages for the loss of use of
property should not exceed the value of the
property.
Pain & Suffering An injured P may recover for pain/suffering as part
Damages of general damages.
Standard for Assessing Excessiveness:
- A judgment is excessive only if that judgment can
be said to be so large that it shocks the conscience
and suggests passion, prejudice, or corruption on
the part of the jury. A verdict may be vacated for
excessiveness if there is no rational connection
between the evidence on damages and the verdict.
Emotional Intangible losses, such as ED, may be awarded as
Distress Damages general damages. ED includes mental injuries
suffered based on exposure to insults, libel,
humiliation, and other indignities.
Intrinsic Value If personal property has no FMV and it cannot be
Damages replaced/reproduced, then there is no measure for
damages.
Nominal damages would be appropriate. If it can be a car, the driver must pay for a new dog
replaced, then the measure is replacement of the
chattel at FMV.
Wrongful Death Allows a decedent’s surviving relatives to file a suit
Damages for injuries suffered by them as a result of
decedent’s death. This includes surviving spouses
and children, sometimes even adult children.
Wrongful Death of Children:
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Measuring the loss of use (each is
mutually exclusive, can’t use them all):
(1) the rental value of the amount that
could have been realized by renting out
the property;
(2) the reasonable cost of renting a
substitute;
(3) the ordinary profits that could have
been made from the use of the property.
Courts allow awards for medical
expenses (special damages) to
unconscious victims. However, most
courts forbid pain & suffering damages
where P was not conscious. The amount
of damages is a question of fact, at the
discretion of a jury.
ED damages may be awarded even
without P experiencing pain & suffering
or physical injury. Recovery for ED is
excluded from a breach of K claim
unless the breach also caused bodily
harm or the K or the breach is of such a
kind that serious emotional disturbance
was a particularly likely result. ED
damages are unlikely to be awarded
when based merely on negligence or on
destruction of property unless there was
malicious conduct.
The amount of damages is a question of
fact, at the discretion of a jury.
There is no “intrinsic value.”
Ex) if your beloved family dog is hit by
of the same kind based on FMV.
 - Damages are not limited to the well-known
elements of pecuniary loss such as the loss of the
value of the child’s anticipated help with household
chores, or the loss of anticipated direct financial
contributions by the child. The jury should be
allowed to award damages for the parents’ loss of
their child’s companionship.
Loss of Consortium is defined to include the mutual right to Includes emotional and intangible
Consortium affection, solace, comfort, companionship, society, elements of marital relationship.
Damages assistance, and sexual relations necessary to a
successful marriage. The impaired spouse has the
exclusive right to recover for normal damages
associated with bodily injuries, medical expenses,
pain and suffering, loss of earnings, etc.

Parental Consortium: refers to right of a child to

intangible benefits of the companionship, comfort,
guidance, affection, and aid of parent.
- Majority rule: one who by reason of tortious
conduct is liable to a parent for illness or other
bodily harm is not liable to a minor child for a
resulting loss of parental support and care.
Lost Lost wages are income the plaintiff would have
Wages earned if not for the injury caused by the
defendant’s conduct. They are recoverable as
special damages if amounts are measurable out-of-
pocket expenses.
Expenses Courts allow awards for medical expenses (special
damages) to unconscious victims. This includes
medical expenses and other kinds of expenses
associated with injury. They are recoverable as
special damages if amounts are measurable out-of-
pocket expenses.
Future Recoverable as general damages so long as they are
Losses reasonably certain, in an amount determined by a
jury.
Life as Harm Most courts take the position that an impaired life is Typically arise where children/parents
(Wrongful always preferable to no life at all. A child who was allege that a doctor’s negligence caused
Rescue) “wrongfully born” cannot sue on that premise. the birth of a child who should not have
been born.
While life is unquestionably to be highly valued, it
is not necessarily accurate to suggest that, as a Also arises when a Dr. overlooks
matter of law, that an impaired life is always defects or diseases that produce serious
preferable to no life at all. health problems for a child.

Can also arise within the context of

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 “wrongful rescue,” where a doctor
ignores a non-resuscitation order against
patient wishes.
Limitations on Whether the cause of action is in torts, contracts, or (1) Certainty, (2) Foreseeability, (3)
Compensatory whatever other subject an award for compensatory Causation, and (4) Mitigation
Damages damages must meet these four requirements: (avoidability/duty to mitigate).
Certainty Damages are not recoverable for losses beyond an Absolute certainty is not required.
amount that the evidence establishes with
reasonable certainty. Be on the look-out for a fact pattern
where a “new business” is being
For lost profits: P must establish the existence and formed.
amount of such damages with reasonable certainty.
The lost profits must be capable of measurement Future damages cannot be too
upon known reliable factors without undue speculative.
speculation.
- Projections of future profits based on assumptions
that require speculation and conjecture do not
provide the requisite certainty.
Foreseeability Damages aren’t recoverable for losses the party in It’s not the breach that must be
breach didn’t have reason to foresee as a probable foreseeable, it’s the result of a breach.
result when the K was made.
Measured by an objective reasonable
person standard and assessed at contract
formation, not at the time of the breach.
Causation The conduct must have been the cause of the injury. Analyze basic, general causation (cause
and effect) – you do not need to go
through actual and proximate cause like
you would in a negligence case.
Mitigation Plaintiff has a duty to take reasonable steps to Look for fact patterns where alternatives
mitigate her damages. Damages that could have were available or could’ve been sought
Also known as been avoided by reasonable steps to mitigate are or where items/materials were not used.
“avoidable not recoverable.
consequences Mitigation extends to both sides of
doctrine” Exception: unless reducing the loss would require employment Ks. A wrongfully
undue risk, burden, or humiliation. dismissed employee must look for
comparable work, and employers who
have employees who wrongfully quit
must look for comparable replacements.
Restitution A person who is unjustly enriched at the expense of Thus, you don’t just lose the amount the
another is subject to disgorgement of profits. The P lost, but you ALSO lose any
remedy is calculated based on the unjust additional amount you may have gained
enrichment to the D, not the loss to the P. based on P’s loss.

Exception – Innocent Third Party:

- It is inequitable to require restitution where the
payee has changed their position. An innocent

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 third-party creditor is one who had no notice of the
mistake and made no misrepresentations to induce
payment.

Defenses:
- Unclean Hands
- Bona Fide Purchasers (BFP): A BFP may defend
against restitution if they are an innocent party who
purchases a property for value without notice of
another’s claim or underlying wrongdoing.
Tracing Where a wrongdoer mingles wrongfully and Where a property is traced solely to P,
rightfully acquired funds, the owner of the then a constructive trust is appropriate.
wrongfully acquired funds is entitled to a
proportionate, pro rata share. Where a property is traced to
commingled funds, an equitable lien is
A P’s right to recover under a tracing theory is appropriate.
limited by their ability to actually trace the
proceeds. If they cannot trace the proceeds, then
they cannot recover through tracing.
Quasi-K An obligation imposed in law because of the Also referred to as implied-in-law
conduct of the parties, or some special relationship contract.
between them, or because one of them would
otherwise be unjustly enriched.

A quasi-contract is not a K – it’s a duty imposed in

equity upon a party to create an obligation to avoid
unjust enrichment. There is no requirement that the
parties must have intended to bind themselves
contractually.
Constructive Prevents a D from wrongfully benefitting from
Trust property, which can be traced to the P, of which the
D has title. Used where the property in question can
be traced wholly to P. Used where the property in
question can be traced wholly to P.
Equitable A right, enforceable only in equity, to have a
Lien demand satisfied from a particular fund or specific
property, without having possession of the fund or
property. Granted where D’s property cannot be
traced solely to P’s property.
* Look for commingling.
Trust imposed on equitable grounds
against one who has obtained property
by wrongdoing, thereby preventing the
wrongful holder from being unjustly
enriched. If you raise constructive trust,
then also raise equitable lien.
Causes an immediate sale of the
property - to pay P.
An equitable lien, like other equitable
interests, is cut off if the property is
transferred to a BFP. If you raise
equitable lien, also raise constructive
trust.

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