Please enable JavaScript.

Coggle requires JavaScript to display documents.

Remedies - Coggle Diagram

- - - - Compensatory: an award of money for P's loss
        
        General: compensate foreseeable losses (pain & suffering)
        
        Special: compensate losses not necessarily foreseeable that are specifically plead (wage losses)
        
        ALL must be causal, foreseeable, certain, and unavoidable
      - Nominal: recoverable when no actual injury is sustained
      - Punitive: awarded to punish a D for "willful, wanton, or malicious conduct"; Rule of Thumb Rule: punitive damages cannot exceed 10x compensatory damages
        
        Due Process limits: "grossly excessive" damages are invalid under 5th and 14th amendments. The key issue is whether D had fair notice of the possible magnitude of the damages; consider:
        
        reprehensibility of conduct
        
        disparity between actual or potential harm suffered by P and punitive award
        
        difference between the punitive damages award and the criminal or civil penalties
  - - - Elements (applies to Equitable liens too): 1) P must show D has title to property; 2) D's acquisition was wrongful; 3) D's retention would result in unjust enrichment; and 4) P has no adequate remedy at law
- - - - Foreseeable at time the K is entered
        
        Certain as to sum; future profits of a new business are hard to recover because uncertain
        
        Liquidated Damages Clause - may limit the damages recoverable
        
        Unavoidable in that P cannot recover damages that reasonably could have been mitigated
  - - - Elements:
        1) D's unjust enrichment results from mistake, fraud, material breach, or performance of an unenforceable K;
        2) K is unenforceable because it is illegal, not in writing, discharged by impossibility/frustration of purpose, or disaffirmed because of incapacity
      - Material Breach: non-breaching party can recover the value of performance, even in excess of K rate; breaching party can recover the value of the benefit conferred in excess of the other party's damages
      - Unenforceable K: recovery depends on nature of benefits conferred; specific restitution for recovery of tangible property; where benefit is goods/services P is entitled to the value even in excess of the K
    - - Elements:
        1) valid, definite, and certain K;
        2) P has performed or can perform all conditions under the K;
        3) legal remedy inadequate;
        4) feasible to enforce;
        5) not blocked by defense (laches, unclean hands, hardship, mistake/misappropriation)
  - - - Legal Rescission: P gives notice, returns anything received under the K -- P may then seek restitution remedies: quasi-K or replevin
      - Equitable Rescission: appropriate where court intervention is necessary
      - Elements: 1) Grounds for K voidable at the option of one party (mistake/misrepresentation); and 2) No defenses (laches and unclean hands)
    - - Elements: 1) valid and original K; 2) writing does not conform to the parties valid prior agreement bc of mistake/fraud; 3) mistake relates to entering into the agreement in the first place ---
        
        Mistake of Fact: both parties mistakenly believed the writing conformed to their agreement/ one party does not know the writing does not conform
        
        Mistake of Law: to correct a written instrument bc of a mistake in the legal meaning of a term used to inc the underlying agreement
        
        Fraud: represented as incorporating the prior agreement of the parties may be reformed