Black Letter Outline on Remedies
Authors:
Weaver, Russell L. / Kelly, Michael B. / Cardi, W. Jonathan
Edition:
2nd
Copyright Date:
2014
14 chapters
have results for remedies
Chapter Six. Damages 43 results (showing 5 best matches)
- The substitute remedy may be either exclusive or optional. If optional, the plaintiff may elect to pursue remedies under the code instead of the substitute remedy. If the substitute remedy does not specify that it is exclusive, then it is optional. UCC § 2–719(1)(b). Most contracts seeking to limit remedies specify that their remedies are exclusive.
- An exclusive remedy precludes recourse to remedies under the code, unless the exclusive remedy fails of its essential purpose. UCC § 2–719(2). For instance, if the exclusive remedy limits the buyer to repair, the inability to repair the goods after sufficient opportunity to do so may be treated as a failure of the essential purpose of the limited remedy. The mere fact that the remedy is not as generous as those provided in the code is not sufficient to justify rejecting the contractual remedy. But the utter failure to provide the plaintiff with the benefit for which they bargained may permit the court to reject the limited remedy provided in the contract.
- The UCC allows parties to substitute remedies for those provided in the code. UCC § 2–719(1)(a). The remedies may expand rather than limit recovery. For instance, contracts that permit the prevailing party to recover attorneys’ fees expand recovery. More commonly, contracts seek to limit recovery, often by specifying plaintiff’s remedy is limited to repairs.
- Where a plaintiff foregoes other remedies in favor of a liquidated damage clause, the court may suspect that the liquidated damage clause is excessive. Thus, a court may be tempted to call the clause a penalty unless the decision to forego other remedies is reasonable. Where other remedies are unavailable or relatively inconvenient, the choice of the liquidated damage clause may be reasonable. Thus, where specific performance is impossible—maybe because it would come too late to prevent the harm, maybe because other technicalities prevent it—the choice to seek liquidated damages instead may be acceptable. In some cases, a liquidated damage clause itself may preclude other remedies by specifying that it is plaintiff’s exclusive remedy. The argument is somewhat circular and may not prevail.
- Article 2 of the Uniform Commercial Code codifies contract remedies for sales of goods. These provisions are a useful illustration of how contract remedies work. Once we review these provisions, it will be easy to see how the same principles apply in other contract contexts, such as employment and construction.
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Capsule Summary 74 results (showing 5 best matches)
- The UCC allows parties to substitute remedies for those provided in the code. The remedies may expand recovery (perhaps adding attorneys’ fees) or limit recovery (perhaps limiting plaintiff to repairs). If the substitute remedy does not specify that it is exclusive, then it is optional. UCC § 2–719(1)(b). An exclusive remedy precludes recourse to remedies under the code, unless the exclusive remedy fails of its essential purpose.
- Despite merger, distinctions between law and equity have not completely disappeared. Indeed, although courts no longer distinguish between “legal actions” and “equitable actions,” they do distinguish between “legal” remedies and “equitable” remedies. Equitable remedies continue to be subject to many historical distinctions and limitations that have applied to such remedies.
- When contracts both limit the remedy (e.g., to repairs) and exclude consequential damages, some courts award consequential damages if the limited remedy fails of its essential purpose, without finding that excluding consequential damages is unconscionable. Others hold that the two clauses are independent: as long as the express term excluding consequential damages is not unconscionable, it is enforceable, without regard to the fate of the substituted remedy.
- The historical approach makes it difficult to determine the right to jury trial in actions based on legislation, especially statutory rights and remedies (including administrative remedies) unknown at common law.
- Specific performance, like any injunction, is available if the remedy at law is inadequate. Inadequacy sometimes is defined in terms of uniqueness. Thus, the Uniform Commercial Code allows specific performance when the goods are unique, “or in other proper circumstances.” UCC § 2–716. Uniqueness is simply one way to prove that the remedy at law is inadequate.
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Chapter One. Equity and Equitable Remedies 22 results (showing 5 best matches)
- Even though law courts and equity courts have been merged in the overwhelming majority of states, distinctions between law and equity have not completely disappeared. Indeed, although courts no longer draw formal distinctions between “legal actions” and “equitable actions,” they do distinguish between “legal remedies” and “equitable remedies.” Equitable remedies continue to be subject to many of the same distinctions and limitations that have historically applied to such remedies.
- Today, most states have merged “law” and “equity” into a single, unified, court system. However, the merger of law and equity did not eliminate the distinction between legal remedies and equitable remedies, or the limitations and conditions applicable to those remedies.
- Since equity courts were not bound by the Provisions of Oxford, they could hear new forms of action. However, true to their roots, equity courts refused to act except when the common law courts could not provide the plaintiff with an adequate remedy. When the legal remedy was available and adequate, an equity court would dismiss the case, thereby forcing plaintiff to pursue his legal remedies. Necessarily, since equity courts focused on principles of “equity” and “conscience,” they did not apply the same substantive rules as the law courts.
- The concept of “inadequacy of the legal remedy” and the “requirement of irreparable injury” are extremely important. As a general rule, harm is irreparable when the legal remedy of damages is inadequate to provide relief. Examples of adequacy include the following situations: when property is “unique” so that plaintiff cannot readily purchase a substitute; when damages are difficult or impossible to calculate; when defendant is insolvent or it is otherwise impossible to collect a monetary judgment; when plaintiff will be required to bring multiple proceedings to vindicate his rights; and when the plaintiff’s injury is of such a nature (e.g., deprivation of civil rights) that the remedy of damages is substitutionary and ineffective.
- At common law, there existed a dual court system that included “law” courts and “equity” courts. “Equity” courts (a/k/a, chancery courts) developed from the King’s power to dispense justice, and his subsequent delegation of that power to the King’s Chancellor to dispense justice on his behalf. Over time, as the Chancellor began delegating his power to his subordinates, there developed a new system of courts referred to as “equity courts” or “chancery courts.” The King’s courts, a/k/a “law courts,” dispensed “legal remedies.” By contrast, equity courts granted “equitable remedies.”
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Perspectives 21 results (showing 5 best matches)
- The course surveys several different remedial approaches. A good deal of the course focuses on the details of each remedy. To some extent these details are no more than a prelude to the real problem of remedies: deciding which remedy to seek. Knowing the alternatives is essential to choosing among them. Choosing the wrong remedy may lead you to file the wrong cause of action in the wrong jurisdiction—or even to sue the wrong defendant. In some ways, the remedy should be the first thing an attorney considers when contemplating how to help a client. The remedy often is foremost in the client’s mind. Focusing on the remedies at the outset of litigation may prevent a number of poor litigation choices.
- The focus on the rightful position emphasizes the inextricable link between the remedy and the wrong. Plaintiff has no entitlement to any remedy unless defendant committed a wrong. Equally important, the extent of the wrong determines the extent of the remedy. Wrongs that cause less harm produce less remedy and vice versa.
- This book can contribute to your study of remedies in several ways. One thing it cannot do, however, is replace a careful reading of the cases. Remedies are inherently case-specific. Each wrong causes different effects, which in turn produce a different measure. The guidelines for remedies can be stated generally. But understanding their application requires some attention to the detailed facts of each case. This book cannot provide those details. To explore remedies intelligently, you will need to read the cases in your casebook with some care.
- At all stages of the course, this book may help you get the most from a course. Before the class begins, you can get a useful overview of remedies from this Perspectives chapter and from the Capsule Summary. Reading the body of the outline would allow you to appreciate the way remedies interrelate as you study each remedy in class.
- The course in Remedies studies the array of things a court can do for the prevailing party in litigation. The prevailing party usually refers to the plaintiff (or counterplaintiff). For the prevailing defendant, no remedy at all usually is enough—though the course occasionally discusses ways a defendant might be made whole, as through awards of attorneys’ fees or collecting on an injunction bond.
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Chapter Five. Declaratory Judgments 13 results (showing 5 best matches)
- A declaratory judgment decides disputed rights, obligations or status of parties without providing for further enforcement of the judgment. Thus, although the declaratory remedy can be combined with other remedies (e.g., injunctive relief), it can function independently as a mere declaration of parties’ respective legal rights.
- The declaratory remedy was developed in various states early in the last century. The remedy was adopted by many states in the form of the Uniform Declaratory Judgments Act (UDJA) and by the federal government as the Federal Declaratory Judgment Act (FDJA).
- Declaratory judgments bind the parties so that principles of res judicata and collateral estoppel apply. A frequent litigation pattern is for a plaintiff to seek a declaratory judgment (which is often more expedient and cost-effective than litigation seeking a substantive remedy) then wait to see if the relevant parties comply. If not, the plaintiff files a subsequent action seeking damages or an injunction, using the declaratory judgment as binding precedent. A plaintiff need not wait to seek a substantive remedy, of course. Both the UDJA and FDJA provide for “further” relief when “necessary and proper,” including coercive remedies. UDJA, Sec. 8; FDJA, 28 U.S.C. § 2202.
- 1. Development of the Declaratory Remedy
- The issuance of a declaratory judgment is not mandatory, even where the claimant has established the required elements under the statute. The discretionary nature of the remedy is captured by Section 6 of the UDJA, which states that a “court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”
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Chapter Three. Injunctions 30 results (showing 5 best matches)
- The injunctive remedy is perhaps the most powerful judicial remedy. It is used to order defendants to engage in, or to refrain from engaging in, a specified act (or acts).
- Ejectment, a remedy available in an action for trespass, enables a possessor of land to regain sole possession of her property. Because an order of ejectment is directed to the sheriff, rather than to the trespasser, it is a legal rather than equitable remedy—a rare example of specific legal relief. An ejectment order might direct the sheriff to remove a trespassing person or object (or even, in a few cases, a trespassing building) from the plaintiff’s property. In addition to the specific remedy, an ejectment order may also include a judgment of mesne profits—the fair rental value of the land during the time it was wrongly occupied by the defendant. Although ejectment is also sometimes used to resolve title disputes, courts often hold that an action for quiet title is the more appropriate remedy in such situations.
- Under the Uniform Commercial Code, specific performance is available when the goods are unique, “or in other proper circumstances.” UCC § 2–716. Outside the sale of goods, the irreparable injury rule—the requirement that the remedy at law is inadequate—applies directly. While courts often refer to uniqueness, this is simply one way to prove that the remedy at law is inadequate. Where goods are unique, money damages could not be used to replace them with a suitable substitute, making the remedy at law inadequate. In other circumstances, damages may be inadequate for other reasons. For instance, where goods are vital to a business, profits lost because of the breach may be extremely difficult to calculate. Rather than force the plaintiff to accept the jury’s best estimate of profits (limited by the certainty doctrine), courts may order specific performance. When goods are in short supply, damages measured by cover price minus contract price may suffice. But where the shortage is...remedy
- Conversion, also traditionally referred to as “trover,” is either a tort in its own right or a remedy to an action for trespass to chattels—many jurisdictions are nebulous on this point. Regardless, the conversion remedy is a “forced sale” of personal property to which the plaintiff has title to the defendant, in exchange for payment of the property’s market value at the time of the conversion (or at resolution of the case, if the property has risen in value). The court’s order creates a legal fiction that title in the plaintiff’s property passed to the defendant at the time of conversion, creating a duty on the part of the defendant to pay for it. Conversion is limited to cases that require payment for the full value of the chattel. Although conversion has elements similar in some respects to an injunction, it is in fact a legal remedy. The conversion order issued by the court is not an
- and is designed to maintain the status quo only until a hearing can be held on whether to grant a preliminary injunction. As equitable remedies, injunctions are subject to the ordinary rules governing equitable relief ( , the requirement that the legal remedy be inadequate & equitable discretion), but they are also subject to their own special rules.
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Appendix B. Sample Exams 14 results (showing 5 best matches)
- The basic remedy in contract is to put the plaintiff in the position she would have occupied if the contract had been performed—the expectation interest. Immediately, however, RSI will raise the contractual remedy limiting recovery to replacement of the embryos. T does not want this remedy, because the embryos would not have the genetic material of C, her late spouse. To negate this contractual remedy, T must argue that it fails of its essential purpose. (This would be the statutory test if the court applies the UCC to this contract, treating it as a sale of goods. Applying this test to a service contract is less likely.) Here, the essential purpose was to allow T to attempt to have children despite difficulties with natural childbirth. Substitute embryos, which could have T’s genetic material, provide a very large portion of that benefit. They are not exactly as good as the original performance, but substituted remedies need not be (and probably rarely are) exactly as good as the
- California law applies. Unless you have read (for this class) California cases or statutes to the contrary, assume that California follows the general rules of remedies that we have discussed, including (when applicable) those portions of the Uniform Commercial Code, the Restatement (Second) of Contracts, and the Restatement (Second) of Torts that we addressed in class. Do not discuss remedies unique to the federal patent laws, which we did not discuss this term. You may make an argument for any remedy independent of that statute, but not an argument that relies entirely on that statute.
- We could try to argue that it was unconscionable. This seems unlikely to succeed. The clause probably will come as a surprise to T, who may not have considered the remedies from breach when entering the contract. Whether the surprise is unfair surprise may depend on how the term was presented. If T simply didn‘t pay attention, the surprise may not be unfair. The term, however, does not seem unreasonably favorable to RSI. It limits their liability in a manner that, initially, probably seemed quite reasonable. Unless parties expected one spouse to die soon—and no one suggests either party had reason to know of C’s impending demise—the replacement remedy would seem like a workable solution. It avoids the difficulty of evaluating the losses someone would suffer from breach by substituting new performance, avoiding the losses instead. The unusual circumstances that prevent the remedy from working here hardly make the term unconscionable at the time the contract was formed.
- Phog’s conduct is a breach of contract. Ms. Stree asks you to prepare a memorandum (informal, but thorough and insightful) evaluating the remedies Chris might seek and the prospects for success. Be sure to consider any arguments that Phog might raise in opposition to those remedies and how you would persuade a court to take your position—or, if their arguments are unassailable, what effect they have on your remedial recommendations. In addition, consider any risks your client may run in raising these issues. Ms. Stree mentions one risk: a lawsuit might come to Tulips’ attention, spurring them to make a claim against Chris. Consider this and any other danger you foresee in evaluating Chris’s remedies. Ms. Stree will meet Chris for cocktails. In preparation for that meeting, she needs your memorandum by 3:00 p.m. If you need additional information, identify the questions Ms. Stree should ask Chris. She will not be able to consult you after getting the answers, so be sure to explain...
- If a court does not accept a public policy defense, conversion offers an alternative route to recovery. The normal remedy would be the value before the injury less the value after. Here, the value after is zero, given that the embryos have been destroyed. The value before presents exactly the same difficulty here as in the contract action. The market value seems likely to underestimate the value to T, as does replacement cost. The arguments will rise or fall on exactly the same analysis. Loss of use raises the same difficulty of assessing the value of a chance to have children with C’s genetic makeup.
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Chapter Four. Restitution 10 results (showing 5 best matches)
- An additional advantage of special restitutionary remedies is that they can be used to circumvent debtor exemptions. Each state provides debtors with certain “exemptions” that allow them to protect assets against creditors. Special restitutionary remedies allow creditors to circumvent the exemptions and assert a claim against the property that is the subject of the exemptions.
- The doctrinal core of restitution is misleadingly simple: “A person who has been unjustly enriched at the expense of another is required to make restitution to the other.” THE RESTATEMENT OF RESTITUTION § 1 (1937). The purpose of restitution is to prevent a defendant from retaining benefits unjustly derived from plaintiff. Despite the simplicity, restitutionary remedies can be extremely powerful and flexible.
- C. Special Restitutionary Remedies
- Both the constructive trust and equitable lien offer plaintiffs special advantages over other remedies. The two most important advantages are that both devices allow plaintiffs to “trace” their property into other forms, and can be used to give plaintiffs priority over other creditors.
- A second advantage of the special restitutionary remedies (e.g., constructive trust and equitable lien) is that they can be used to gain priority over other creditors. In other words, rather than standing in line with other creditors and receiving pennies on the dollar, plaintiff can assert a constructive trust or equitable lien against the property and receive priority over other creditors.
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Appendix A. Glossary 6 results (showing 5 best matches)
- Limitations (Contractual) on Remedies.
- Remedies awarded to one group of people based on defendant’s wrong against a different (usually similar) group of people. For example, an order to discount future electricity bills because of overcharges in the past. will benefit some people who never paid the overcharges and will not benefit some people who did pay past the overcharges.
- The principle that equitable relief is available only when no adequate legal remedy exists.
- A court ordered remedy that requires precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate, as when the sale of real estate or rare article is involved.
- The substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor.
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Summary of Contents 5 results
Title Page 1 result
Half Title 1 result
- Publication Date: July 18th, 2014
- ISBN: 9780314904096
- Subject: Remedies
- Series: Black Letter Outlines
- Type: Outlines
- Description: This text provides a concise summary of equity laws including equity and equitable remedies, enforcement of equitable decrees, injunctions, restitution, declaratory judgments, and damages. It discusses the historical perspective on equity, contempt rules, and forms of loss as they relate to damages.
