REMEDIES SHORT OUTLINE & CHECKLIST

CHECKLIST

I. Tort Remedies STEPS:

a. DAMAGES  (1) What substantive area of law
i. Compensatory  What specific issue
ii. General v. Specific  (2) Analyze if Π going to win
iii. Nominal  (3) What remedies require discussion
iv. Punitive  Legal (if Π injured)
b. LEGAL RESTITUTIONARY REMEDIES  Restitutionary (if Δ received benefit)
i. Money  Legal
ii. Replevin  Equitable (if Π wants prop rtnd)
iii. Ejectment  Equitable (if Π still being harmed)
c. EQUITABLE RESTITUTIONARY REMEDIES
i. Constructive Trust
ii. Equitable Lien
d. INJUNCTIVE RELIEF
i. TRO
ii. Preliminary Injunction
iii. Permanent Injunction
e. EQUITABLE DEFENSES

II. Contract Remedies

a. DAMAGES
i. Expectation
ii. Consequential
iii. Incidental
iv. Reliance
v. Liquidated Damages
b. RESTITUTION
c. SPECIFIC PERFORMANCE
d. RESCISSION
e. REFORMATION
f. INJUNCTIVE RELIEF
i. TRO
ii. Preliminary Injunction
iii. Permanent Injunction
g. EQUITABLE DEFENSES

III. Specific Tort Damages

IV. Specific Contracts Damages

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I. TORT REMEDIES
a. DAMAGES
i. Compensatory Damages
1. The purpose of damages in torts is to make the Π whole – to compensate a Π for any
losses and put the Π in a position he would have been in had the injury not occurred.
2. Four Requirements for Compensatory Damages:
a. (1) Causation – actual causation – Δ's conduct must be the actual cause of Π’s
injury, (2) Foreseeability – the DF’s conduct must also be the proximate cause of
PL’s injury, where the injury must have been foreseeable at the time of the
tortious act, (3) Certainty – damages must be reasonably certain, and not too
speculative, and (4) Mitigation of Damages – PL must take reasonable steps to
mitigate his damages.
ii. General v. Specific:
1. General Damages
a. Those that naturally flow from the wrongful act and which the law presumes
foreseen and contemplated by the parties.
2. Special Damages
a. Not necessarily flowing from the wrongful act – unique to each plaintiff, which
must be specifically pled.
iii. Nominal Damages
1. Where no actual damages can be proven, a PL may recover nominal damages, which is a
small amount of money in order for a PL to be able to enforce his rights.
iv. Punitive Damages
1. Punitive damages are awarded to punish and deter rather than to compensate.
2. A Π is entitled to punitive damages if
a. (1) the Π is entitled to compensatory or nominal damages, and
b. (2) Δ's conduct was more than mere negligence (malicious, etc).
3. Any punitive damages award must be relatively proportionate to actual damages
(cannot exceed a single digit multiple of actual damages unless conduct is extreme)

b. LEGAL RESTITUTIONARY REMEDIES

i. Restitutionary damages are awarded to prevent a Δ from being unjustly enriched. It is not
measured by the injury to the Π but rather the benefit to the Δ.
1. Waiver of Tort/Suit in Assumpsit (Money)
a. If the Δ’s benefit is measurable in dollars, a Π may waive tort and file a suit in
assumpsit under one of the following counts to recover the amount in which Δ
has been unjustly enriched:
i. Money Had and Received = recover of actual money the Δ received.
ii. Quantum Meruit (QUASI-CONTRACT) = reasonable money value of
services Δ received.
iii. Goods Sold and Delivered = fair market value of chattel taken by Δ.
2. Replevin (Personal Property)
a. Replevin allows Π to have sheriff repossess specific personal property.
b. Π must show:
i. (1) the Π has a right to possession of the property, and
ii. (2) there is a wrongful withholding by the Δ.
c. Π can recover property before the trial (most likely bar exam issue)
i. Π must post a bond, but Δ may defeat immediate recovery by posting a
re-delivery bond.
d. Replevin is almost always coupled with damages for lost use or benefit to Δ

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3. Ejectment (Real Property)

a. Ejectment allows Π to have sheriff repossess specific real property.
b. Π must show:
i. (1) the Π has a right to possession of the property, and
ii. (2) there is a wrongful withholding by the Δ in possession of the
property.
c. Only available against Δs who have possession of the property
i. (most likely bar exam issue)
d. Ejectment is almost always coupled w/ damages for lost use or benefit to Δ

c. EQUITABLE RESTITUTIONARY REMEDIES

i. Equitable restitutionary remedies include the constructive trust and the equitable lien wherever
Δ acquires TITLE to property by using Π’s property.

ii. CONSTRUCTIVE TRUST

1. A constructive trust is imposed on improperly acquired property to which Δ has title.
Defendant serves as “trustee” and must transfer the property to the plaintiff. PL must
show:
a. (1) there is an inadequate legal remedy (Δ is insolvent, or prop is UNIQUE)
b. (2) that Π can trace his property into the newly acquired property
c. (3) that retention of the property by Δ would be unjust.
2. Π obtains priority status as a secured creditor over any other unsecured creditors, but
will not prevail over a bona fide purchaser for value.
3. C/T is the preferred remedy if the property has increased in value as the Π will retain
any increase in value.

iii. EQUITABLE LIEN

1. An equitable lien is imposed on improperly acquired property to which Δ has title,
which gives Π a security interest in the property. The property will be subject to an
immediate court-directed sale. Π becomes a preferred creditor. Π must show:
a. (1) there is an inadequate legal remedy (Δ is insolvent, or prop is UNIQUE)
b. (2) that Π can trace his property into the newly acquired property
c. (3) that retention of the property by Δ would be unjust
2. Π obtains priority status as a secured creditor over any other unsecured creditors, but
will not prevail over a bona fide purchaser for value
3. E/L is the preferred remedy if the property has decreased in value as it permits the PL to
go after the Δ for any deficiency judgment if the sale is less than the FMV of the
property when it was taken.

iv. TRACING ISSUES (Commingled Account) (do we need to know? book only says tracing possible)
1. Clayton’s Case rule – first in, first out. The first money to be deposited into an account,
is presumed to be the first money withdrawn from the account.
2. Jessel’s Bag rule out of HALLETT”S ESTATE – first withdrawals out presumed to belong
to wrongdoer and remaining balance is subject to equitable interest asserted by
claimaint. (fiction that Δ acts honorably and spends his own money first)
3. First Restatement Approach –
a. recovery limited to percentage of Δ's commingled account and same percentage
of property traceable from withdrawn account funds
b. percentage = Π's funds compared to total funds in commingled account
c. not based on order of deposits/withdrawals

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4. Third Restatement Approach – 2 presumptions – first, withdrawals that are untraceable

are allocated to wrongdoer, second, claimant can elect tracing if possible of the product
of withdrawn funds where there is an advantageous result

v. DEFENSES
1. Bona Fide Purchase for Value – no equitable interest if property transferred to a bona
fide purchaser for value without notice of the interest.
2. Change in Position – court may deny equitable relief if DF materially changed his
position to his detriment in good faith without notice of the equitable interest.
3. Volunteers – Volunteers of property that make gifts cannot sue the donee for value

d. INJUNCTIVE RELIEF
i. TRO (discuss before preliminary injunction)
1. Substantive Requirements:
a. TRO and preliminary injunctions have substantially the same substantive rqmts:
i. (1) Π will suffer irreparable harm without injunction
ii. (2) balancing of hardships favors Π
1. (Π's hardships if not granted v Δ's if granted;
iii. (3) likelihood Π will succeed on the merits;
iv. (4) Order is in the public interest;
i. (5) emergency - immediate harm will result w/o TRO
NOTE - **Some jurisdictions follow the SLIDING SCALE APPROACH, where the
greater the potential irreparability of the harm and the clearer the balance of
hardships without the order, the lesser the required showing of strength on the
merits of the case and vice versa.
2. Procedural Requirements
a. A TRO may be entered ex parte without notice, but only upon showing of
immediate and irreparable harm before notice can be given, accompanied by a
declaration from counsel regarding efforts to give notice and why it should not
be required.
b. Order may only last 14 days, with a second 14-day extension for good cause.
i. CA - good for 10 days
c. The issuance of a TRO is NOT directly appealable.
d. Verified Complaint
e. Bond

ii. PRELIMINARY INJUNCTION

1. Substantive Requirements:
a. There are four factors in determining whether to grant a preliminary injunction:
i. same as (1-4) in TRO rqmts
2. Procedural Requirements
a. Notice must be given to the adverse party.
b. The preliminary injunction hearing is expedited on the calendar, and both sides
must have an opportunity to present some evidence.
c. Lasts until the full trial on the merits of the case.
d. Moving party must post a bond if TRO or preliminary injunction issued, to
compensate non-moving party in case it was wrongfully issued. Recovery for
injuries by the non-moving party is typically limited by the bond amount, the
injuries which the non-moving party must prove.
e. The issuance of a preliminary injunction is directly appealable.

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iii. PERMANENT INJUNCTION (most commonly tested on the bar)

1. (1) Inadequacy of Remedy at Law
a. Replevin inadequate - Sheriff can't recover or Δ filed redelivery bond
b. Ejectment - Sheriff may refuse to act
c. Money damages -
i. Damages too speculative
ii. Δ is insolvent, so money damages wouldn't do any good
iii. Irreparable injury (real injury)
iv. Avoiding a multiplicity of actions
1. (usually told prior history of litigation btwn the parties)
v. Property interests are unique.
2. (2) Irreparable Harm
a. Irreparable harm generally occurs where the injury is severe, and money
damages will not compensate (property interests).
3. (3) Balance of Hardships Favor Plaintiff (btwn Π and Δ)
a. If Δ's conduct was willful then Δ's hardship is not considered
4. (4) Feasibility of Enforcement – Court Must Be Able to Enforce Order
a. The court must be able to enforce the order, and must fashion the order with
enough specificity so the parties know their obligations.
b. Not practicable if great skill/judgment involved, or involves a series of acts in a
period of time, or if out of state act is required.
c. Negative injunctions - orders Δ to stop doing something
i. No enforcement issues
d. Mandatory injunction - orders Δ to affirmatively do something
i. May be enforcement problems based on difficulty of supervision or
concern w/ effectively ensuring compliance
ii. Bar favorite injunction patterns
1. Act involving great taste, skill, or personal judgment
a. Answer = injunction denied
2. Out of state act required
a. Resident Δ = injunction granted
b. Non-Resident Δ = injunction denied
5. (5) Granting the Injunction is in the Public Interest

e. EQUITABLE DEFENSES
i. Laches
1. Unreasonable delay in bringing the action which results in prejudice to the Δ.
a. Prejudice includes evidence (death of witness/staleness of evidence), or
economic prejudice (change in position thinking rights are secure, change of
relationship b/w parties).
2. Clock starts to run when the Π learns of the injury
ii. Estoppel
1. Π induced Δ to act/not act/stop acting, Δ relied on Π's inducement, and Δ prejudiced by
changing position to his detriment.
iii. Unclean Hands
1. Bars a Π from recovering if Π himself has engaged in some sort of wrongful conduct. It
requires (1) Π seeking relief has behaved with serious or egregious conduct – case by
case basis, and (2) wrongdoing must be specifically related to the lawsuit
iv. Free Speech - If tort is defamation or privacy branch tort, best answer is injunction denied on
free speech grounds

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v. Election of Remedies
1. Traditionally, if a party has affirmatively chosen a remedy where two remedies exist at
the time of the election which are inconsistent with one another, that party is barred
from another remedy.
2. Modernly, the manifestation of a choice of inconsistent remedies does not bar another
remedy UNLESS the other party materially changes his position in reliance on the
manifestation.

II. CONTRACT REMEDIES

a. DAMAGES
i. Expectation Damages
1. Direct damages which flow naturally from the breach to protect Π’s expectation (benefit
of the bargain) interest, to put the Π in as good as a position as if the K had been fully
performed.
2. Four Requirements for Compensatory Damages:
a. (1) Causation – actual causation – DF’s conduct must be the actual cause of PL’s
injury, (2) Foreseeability – Any loss must be reasonably foreseeable – in the
contemplation of the parties at the time of contracting, (3) Certainty – damages
must be reasonably certain, and not too speculative, and (4) Mitigation of
Damages – Π must take reasonable steps to mitigate his damages.
ii. Consequential Damages
1. Damages that do not necessarily flow from the breach, but are related and additional to
expectation damages. They must be foreseeable by the breaching party at the time of
contract formation
2. Bar favorite fact pattern - Π's reputation is harmed and will lose future business.
iii. Incidental Damages
1. Damages in the form of additional expenses incurred by the parties as a result of the
breach – such as costs to cover, storage costs, etc.
iv. Reliance Damages Alternative
1. If Π cannot prove damages with reasonably certainty, then Π can seek reliance
alternative – which allows a party to recover amount expended in performance of the K
obligations in reliance that other party would perform.
v. Punitive Damages
1. Punitive damages are never recoverable in an action for breach of K
2. (may be able to characterize it as a fraud case, a tort, which would allow punitive dmgs)
vi. Liquidated Damages
1. Liquidated damages are damages clauses in the contract which the parties agree on at
the time of contracting in the case of a breach. For liquidated damages to be valid, they
must:
a. (1) be difficult to ascertain at the time of contracting, and
b. (2) must be a reasonable forecast of what damages will be upon breach (not
excessive).
2. If clause is valid, only liquidated amt is available. If invalid, only actual dmgs available

b. RESTITUTIONARY REMEDIES
i. A Π may be entitled to restitutionary remedies in contract if (1) the contract has been found to
be unenforceable, (2) if there is no valid contract, or (3) if the contract was breached.
1. Quasi-Contract (Quantum Meruit)
a. If the Δ's benefit is measurable in dollars, a Π may sue on a theory of quasi-K,
which is a contract imposed by law to avoid Δ’s unjust enrichment,

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b. Measured by the value of the services rendered by Π (even if greater than K)

2. Replevin (Personal Property)
a. Replevin is sought where the Π wishes to recover possession of specific personal
property by showing:
i. (1) the Π has a right to possession of the property, and
ii. (2) there is a wrongful withholding by the Δ.
b. Replevin is a remedy to recover property before the trial.
c. Typically, Π must post a bond, and Δ may defeat a recovery by posting a re-
delivery bond.
3. Ejectment (Real Property)
a. Ejectment is sought where the Π wishes to recover possession of real property
by showing:
i. (1) the Π has a right to possession of the property, and
ii. (2) there is a wrongful withholding by the Δ in possession of the
property.

c. SPECIFIC PERFORMANCE
i. (1) Valid and Enforceable K, with definite and certain terms, supported by consideration
ii. (2) Inadequate Remedies at Law
1. Multiplicity of lawsuits, damages are speculative and uncertain, or Δ is insolvent
2. Special subjective value which induces a strong sentimental attachment
3. Where goods are unique or very rare (tested as time of litigation, not K formation)
4. Real Property
iii. (3) Π able and willing to perform
1. Plaintiff must show that he is ready, willing, and able to perform his contractual
obligations under the agreement, or has already performed
iv. (4) Δ able to perform
1. It also must be shown that Defendant has the ability to perform under the agreement.
v. (5) Balance of Hardships Tips in Favor of Specific Performance—Remedy is Discretionary
1. When balancing the equities, the court must be convinced that specific performance of
a validly formed K would not cause greater harm than it would prevent, and must
fashion the decree appropriately.
vi. (6) No Major Enforcement Issues (Judicial Economy)
1. The court must be able to enforce the specific performance degree without too much
trouble or difficulty or supervision.
vii. Court Cannot Order Specific Performance for Services
1. Although a court cannot order specific performance for personal services, specific
performance of a negative covenant is appropriate where the skills are very unique,
and the scope (geographical and duration) is reasonable.
viii. SPECIFIC PERFORMANCE WITH ABATEMENT:
1. If a material but non-substantial mistake is made in a contract, such as the amount of
acreage conveyed in a land sales contract, the court may order specific performance
with abatement (lowering) of the purchase price as long as the factors above are met.

d. RESCISSION
i. Upon sufficient grounds, the parties may seek to rescind the contract if the contract is void or
voidable, which cancels the contract and discharges the parties’ obligations under the contract.
ii. Grounds: Mistake, illegality, mispresentation
1. mutual mistake, unilateral mistake (if party knew or should have known other party
made a mistake), supervening illegality, fraudulent misrepresentation that Π relied on

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iii. Defenses: unclean hands, laches, election of remedies, estoppel, coercion, undue influence, lack
of capacity (NO MUTUAL ASSENT – AT K FORMATION STAGE).
1. Negligence of Π is not a defense to rescission

e. REFORMATION
i. Upon proper grounds, the parties may seek to reform a valid original contract, in which the
court will change the terms of contract to better match the intent of the parties.
ii. Grounds: mistake, misrepresentation
1. mutual mistake, unilateral mistake (ONLY if party knew other party made a mistake),
misrepresentation.
iii. Defenses: laches, sale to BFP
iv. Non-defenses will not work: negligence of Π, SoF, PER

f. INJUNCTIVE RELIEF
i. Same as tort remedies above.

g. Purchase Money Resulting Trust

a. When A pays consideration to B to have title to property transferred to C.
a. When beneficiary pays only part of the purchase price, the resulting trust is for pro rata
portion of the title
b. If A and C are not closely related, there is rebuttable presumption that C is holding a
purchase money resulting trustee for benefit of A. Sole duty is to transfer title to A.
i. Rebuttable via evidence that no trust was intended and money used was a gift, loan,
or payment of a debt
c. If A and C are closely related, there is a rebuttable presumption that A made a gift to C.
b. Because resulting trusts are implied by the court, no writing is necessary

h. EQUITABLE DEFENSES
i. Laches
1. Unreasonably delay in bringing the action which results in prejudice to the DF. Prejudice
includes evidence (death of witness/staleness of evidence), or economic prejudice
(change in position thinking rights are secure, change of relationship b/w parties).
ii. Estoppel
1. Π induced Δ to act/not act/stop acting, Δ relied on Π's inducement, and Δ prejudiced by
changing position to his detriment.
iii. Unclean Hands
1. Bars a Π from recovering if Π himself has engaged in some sort of wrongful conduct. It
requires (1) Π seeking relief has behaved with serious or egregious conduct – case by
case basis, and (2) wrongdoing must be specifically related to the lawsuit.
iv. Unconscionability
1. “Fairness.” It requires procedural unconscionability (unequal bargaining power, hidden
terms) or substantive unconscionability (terms are so unduly harsh or one-sided).
2. Measured at the time of K formation.
3. Court may remove the unconscionable term or find the entire K unenforceable.
v. Election of Remedies
1. Traditionally, if a party has affirmatively chosen a remedy where two remedies exist at
the time of the election which are inconsistent with one another, that party is barred
from another remedy.

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2. Modernly, the manifestation of a choice of inconsistent remedies does not bar another
remedy UNLESS the other party materially changes his position in reliance on the
manifestation.

III. Specific Tort Damages

a. Personal Property
i. Destructions of Chattels = FMV at time of destruction LESS salvage PLUS interest (and loss of use
if chattel was income producing)
ii. Damaged Chattels = cost of repair (or diminution if cost exceeds FMV) PLUS loss of use.
iii. Conversion = FMV at time/place of conversion PLUS interest and expenditures
1. Conversion w/ Fluctuating Chattel = highest value b/w time of wrong and reasonable
time to cover
iv. Trespass to Chattels = nominal damages or damages for loss of use

b. Real Property
i. Simple Trespass = nominal damages
ii. Trespass w/ Severance = diminution of value to land, or conversion measure (or restitution)
iii. Trespass w/ Other Injury = cost of removal or rental value of land
iv. Trespass w/ Ouster = ejectment
v. Encroachments = if temporary, then rental value of land, if permanent, then FMV of land
vi. Destruction = FMV of the land. FMV of destroyed building. If crops, then diminution in land or
FMV of the crops.
vii. Damage = Cost of repair PLUS loss of use
viii. Nuisance = loss of use and enjoyment, cost of abatement, emotional distress

c. Personal Injury
i. Compensatory damages = economic losses (special dmgs)+non-economic losses (general dmgs)
1. Economic losses (special damages) include medical expenses, loss of earnings and
earning capacity,
2. Non-economic losses (general damages) include pain and suffering, emotional distress.
ii. Must be LUMP SUM payment
iii. Must be discounted to present value (some jurisdictions consider inflation).

IV. Specific Contract Damages

a. Sale of Real Property = out-of-pocket loss or benefit-of-the-bargain, depending on the JDX.
b. Construction =
i. Builder's damages = (1) lost profits if K is executory, (2) K price if K completed, or (3) K price less
cost of completion if K partially complete.
ii. Owner's damages = (1) diminution in value if substantial performance, or (2) cost of completion
less payments due plus compensation for delay if material breach.
c. Personal Services =
i. for employee’s breach, cost of getting replacement.
ii. for employer’s breach, lost wages due or promised less avoidable damages.
V. Contempt
a. Civil Contempt (to coerce)
i. Money (fine)
ii. Imprisonment: Defendant holds the keys to the jailhouse, i.e., can get out by agreeing to comply
b. Criminal Contempt (to punish)
i. Money (fine)
ii. Imprisonment: Cannot get out of prison. Must remain for a set period of time.
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VI. Bar Exam Tips

a. TORTS
i. Past losses have to be established w/ more certainty than future losses
ii. A historical record helps provide certainty
iii. For future damages, Π must show that they are more likely to happen than not
iv. Constructive trusts & equitable liens are only available if fact pattern says Δ has title to property
v. Injunctions
1. Balancing of hardships defense is almost always a primary discussion item when the tort
is nuisance or trespass to land
2. Equity will not enjoin a crime; Δ violating crim statute, equity wont stop him unless it
can be characterized as a tort
vi. Fraud - always consider (1) whether punitive damages should be awarded, and (2) whether it
could also be analyzed as a Ks case
b. FACT PATTERN POSSIBILITIES
i. If Π has been injured
1. think of compensatory dmgs, expectancy interest, and consequential dmgs
ii. if Δ received a benefit
1. think about restitutionary remedies looking at value of benefit, not K price
iii. Does Π want the property returned - property needs to be unique or have insolvent Δ
iv. Does Π want the K performed - think about specific performance
v. Does Π want the K ripped up - think about rescission
vi. Does Π want the K rewritten - think about reformation

VII. Problem Areas that get Tested On

a. TORTS
i. Most heavily tested - permanent injunctions
ii. Personal injury torts
1. Economic losses/Special Damages - medical expenses/lost earnings
a. Certainty rules apply here - must calculate w/ rsbl certainty
2. Non-economic losses/general damages - pain and suffering, perm. disfigurement, emotional distress
a. Certainty rules do not apply here - jury can award any amt it wishes
3. Form of judgment pmt
a. Award must be a single lump sum pmt
b. Award must be discounted to present value
c. Traditionally, inflation is not taken into account
i. Exception - More modern view takes inflation into account
iii. Damages v Legal Restitutionary Remedies
1. Π may qualify for both damages and legal restitutionary remedies if Π has been injured
and Δ has been enriched. However, Π cannot receive both. In such cases, discuss both
and then award Π the larger of the two values.
iv. Constructive Trusts
b. CONTRACTS
i. Most heavily tested:
1. Specific performance (usually w/ a unique item)
2. Compensatory damages

VIII. Bar exam favorite fact patterns

a. Ks Specific performance
i. Land sale K where Seller cannot deliver the agreed upon consideration (abatement issue)
1. If Π is seller, Π can get SP only if defect is minor unless seller can cure
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2. If Π is buyer, Π can get SP even if defect is major, but not if defect is very major
ii. Land sale K w/ time is of the essence clause & buyer doesn't timely perform
1. Land sale K w/ time is of the essence and forfeiture clause where buyer partially
performs then tenders a late pmt and seller wants to keep it all
2. Equity abhors forfeiture. Cts look at following factors to avoid forfeiture:
a. (1) loss to seller is small; (2) tardiness is de minimis; (3) waiver (seller accepted
late pmts in the past); (4) buyer would suffer undue hardship
3. Should almost always award SP to buyer
4. Note in answer that if no SP, modern trend is to give buyer restitutionary relief
iii. Δ raises SoF as defense to SP

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