Gilbert Law Summary on Remedies
Author:
Bauman, John H.
Edition:
12th
Copyright Date:
2016
20 chapters
have results for remedies
Chapter One. Introduction 26 results (showing 5 best matches)
- An injured party is not entirely free to select the remedy he considers most desirable. The choice of remedies is subject to the basic limitation (which grew out of the historical division between law and equity) that
- This chapter introduces you to basic classifications and terminology concerning remedies. Although the information contained in this chapter is mainly background material, it is not unimportant—quite the contrary; for almost any remedies question, you need to understand the following basic concepts.
- The remedy of restitution restores to the plaintiff any benefit the wrongdoer may have gained from misconduct. The objective of the remedy is to compel the wrongdoer to disgorge any
- Restitutionary remedies are usually substitutionary— recovery measured by the unjust gain, rather than with the precise thing wrongfully obtained by the defendant. Examples of substitutionary restitutionary remedies include quasi-contract actions at law, and constructive trust, equitable lien, and subrogation in equity.
- Legal remedies, developed through the common law forms of action, are largely substitutionary and result in to compensate for loss or injury. This is the origin of the remedy called
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Chapter Three. Equitable Remedies 44 results (showing 5 best matches)
- Whereas legal remedies tend to be substitutionary ( , money damages are substituted for the harm), equitable remedies are specific and direct orders to the defendant
- This chapter describes the distinctive characteristics and requirements of equitable remedies. As you analyze exam questions involving equitable remedies, keep in mind the following:
- remedy at law
- The bulk of equitable remedies comprise decrees for from fiduciaries and the like. Equitable restitutionary remedies are covered
- A strong preventive element pervades equitable remedies, particularly injuctions. Legal remedies exist only after the wrong, and their deterrent effect is purely collateral.
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Chapter Twelve. Remedies for Breach of Contract 90 results (showing 5 best matches)
- The equitable remedy of specific performance is ordinarily available. If the grantee’s promise is to pay money, the remedy at law for breach of contract is adequate. If the promise is to provide personal services (support contracts), the contract is not specifically enforceable anyhow ( ). If the promise is to build, the remedy of damages may be considered adequate.
- The materials that follow state the remedies available to the parties for breach of contracts of various kinds: land sale contracts, contracts for the sale of chattels, construction contracts, employment contracts, and contracts with negative covenants. In each situation, the measure of damages, the availability of specific performance, and the various restitutionary remedies must be separately considered. There are, however, certain to the equitable remedy of specific performance that must be satisfied
- mutuality of remedy” rule; is entitled to specific performance of the contract, the same remedy should be available to the seller. [
- Specific restitution as a remedy cases, usually where property is conveyed in exchange for a promise to support the grantors, usually for life. Upon repudiation of such a promise by the grantee, the injured party has no adequate remedy because damages, by necessity, are speculative and conjectural.
- The Restatement (Third) of Property (Mortgages) sought to resolve the remedial quagmire set out above by adopting (in section 3.4(b)) a simple and unambiguous statement that an installment land sale contract creates a mortgage. Thus remedies for the breach of these contracts are those available under mortgage law and only those remedies.
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Chapter Five. Injuries to Tangible Property Interests 74 results (showing 5 best matches)
- remedies designed to restore possession of the chattel itself include self-help, replevin, and the mandatory injunction. Alternatively, the injured party may seek a award as substitutionary relief. Available remedies are damages for conversion, quasi-contract (waiver of tort and suit in assumpsit), and the equitable remedy of the constructive trust.
- A mandatory injunction ordering the defendant to return a converted chattel will be granted if the remedy at law (replevin or damages) is not adequate. To establish the inadequacy of the remedy at law, the plaintiff must show that the chattel that was wrongfully taken is
- The common law remedy for such acts of waste (authorized by ancient statutes) was treble damages plus forfeiture of the tenancy. This remedy is preserved today in many jurisdictions, although the forfeiture provision is sometimes omitted.
- Unlawful detainer (as well as forcible entry and detainer) is another statutory provisional remedy to obtain possession of realty by one entitled to it. [ 672 S.W.2d 231 (Tex. 1984)] Compare this remedy with “replevin,” which performs the same function with regard to personal property (
- Because the encroachment constitutes an ouster, ejectment is a possible remedy. The difficulty, however, is in the enforcement of the judgment. Even though plaintiff receives a judgment for possession, there is no practical way for the sheriff or marshall to remove the encroachment and
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Chapter Nine. Fraud 43 results (showing 5 best matches)
- Often a Remedies exam question will set up a fact situation in which the plaintiff was induced by fraudulent misrepresentations to enter into a contract. The key to answering these questions is to distinguish the tort remedy of
- Always remember that these remedies (damages and restitution) are remedies; the court can grant one or the other, but not both.
- remedies: she may either affirm the contract and seek the contract and seek restitution. As will be seen, these remedies are alternative,
- An election of remedies does not occur when a plaintiff mistakenly pursues a remedy that does not exist. [
- Stated differently, there must be an election of remedies prior to judgment because the remedies are alternative, not cumulative. Thus, the ultimate judgment must grant
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Exam Questions and Answers 47 results (showing 5 best matches)
- Because the contract called for the conveyance of land (Blackacre) in exchange for Benny’s personal services and Whiteacre, specific performance is a proper remedy. The purchaser’s remedy at law for breach of a land sale contract is considered inadequate because of the uniqueness of land. Thus, unless Alice has some defense to the suit, the equitable remedy should be granted.
- The remedy of specific performance is ordinarily not available because of the adequacy of the remedy at law and the unwillingness of courts to supervise construction contracts. Because Owner has paid less than the benefit received from Builder, restitution is not an appropriate remedy.
- 2. Restitution is both a legal and an equitable remedy. If the basis of the restitutionary claim is quasi-contract, the remedy is legal and there is a constitutional right to jury trial.
- adequate remedy at law
- As an alternative remedy, Alan may seek —again on the theory that Cooper gained a benefit as a result of the conversion and hence wrongfully. The benefit is measured by the value of the soybeans on the date of acquisition and not by the enhanced value resulting from Cooper’s processing. The same distinction drawn between innocent and willful converters in measuring damages in conversion cases is applicable where the alternative restitutionary remedy is sought.
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Chapter Four. Restitution for Unjust Enrichment 18 results (showing 5 best matches)
- restitutionary remedies ( restitutionary remedies ( constructive trust, equitable liens, subrogation, and accounting). Consider the characteristics and requirements of each type before deciding on the most appropriate remedy.
- B. Legal and Equitable Remedies
- B. Legal and Equitable Remedies
- The legal remedy of restitution in money (as distinguished from the common law actions of replevin or ejectment where restitution is in specie) evolved from the common law action of Originally an action to compensate for breach of an assumed duty or undertaking, assumpsit was later extended to provide a remedy for breach of simple contracts. In the landmark case of
- Because restitution at law has this complicated historical background, it is still the practice to refer to the remedy as “quasi-contract” even though
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Capsule Summary 176 results (showing 5 best matches)
- Equitable remedies arose from the office of the Chancellor and the Court of Chancery in England. Such remedies were meant to provide relief when no legal remedy was available.
- The law of remedies encompasses the of relief granted by courts. Remedies may be categorized according to function.
- Legal remedies developed from the common law, are usually substitutionary, and result in (damages). However, some legal remedies are restitutionary (
- Equitable remedies are appropriate only when legal remedies are inadequate.
- As opposed to the legal remedy of damages, equitable remedies are:
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Chapter Thirteen. Remedies in Connection with Unenforceable Contracts 24 results (showing 5 best matches)
- remedies (and possibly quasi-contractual relief that is equitable in nature) where the plaintiff has acted “inequitably.” Illegality bars remedies where the plaintiff has acted illegally. In other words, the plaintiff may be deprived of equitable remedies because of “unclean hands” while still retaining remedies, as long as the plaintiff’s conduct is merely inequitable rather than illegal. But, if the conduct is illegal, the plaintiff may be denied remedy. [
- Because the restitutionary remedy in many cases fails to compensate the plaintiff for part performance in reliance on an unenforceable contract (particularly because consequential damages are generally excluded), equity mitigated the harshness of the Statute of Frauds by the “part performance doctrine” applicable to a basis for any remedy at law.) [
- Ask yourself whether the Statute applies. If so, and the contract has not been reduced to a writing, remember that there are only two remedies worth serious consideration: of the award; so study the section of this chapter on restitutionary remedies carefully. For specific performance, be sure you consider the equitable doctrines of
- For the other three types of unenforceable contracts (impossible to perform, ultra vires, or illegal contracts), the available remedy, if any, is
- (there may be no remedy at all). (For illegality problems, be sure to consider the “in pari delicto” and “locus poenitentiae” doctrines.)
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Chapter Seven. Injuries to Personal Dignity and Related Interests 20 results (showing 5 best matches)
- If you can establish such an interest, the normal remedy is a mandatory or prohibitory (The remedy at law is inadequate because damages are necessarily speculative and conjectural.)
- the appropriate remedy. In the case of the sole remedy is generally
- Some courts give the “adequacy” of the damages remedy as the reason for denying injunctive relief, but this is inaccurate; the payment of money is an inept remedy for the loss of reputation.
- Under state civil rights statutes, some courts have held that the statutory remedies are exclusive—thus precluding relief by injunction. [ 30 Cal. 2d 110 (1947)—plaintiff entitled to injunctive relief for exclusion from public premises because statutory remedy ($100) was inadequate]
- to prevent repetition of a defamatory statement. The development of declaratory relief may prove to be the best remedy for protecting a person’s reputation. [Rest. 2d Torts ch. 27—Special Note]
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Chapter Six. Injuries to Business and Commercial Interests 84 results (showing 5 best matches)
- The topics in this chapter are not always included in a Remedies course. If they have been discussed in your class or readings, watch for questions concerning the , as these are the most likely to appear on a Remedies exam.
- Whether injunctive relief will be granted depends on the adequacy of other remedies and is not affected by the adequacy of the contract remedies against the party induced to breach. Thus, injunctive relief may be available even though the plaintiff clearly has an action at law for breach against the other party to the contract.
- not the buyer, and the “diversion of benefit” was from the seller, to whom a fiduciary duty was owed, and therefore the remedy for unjust enrichment belongs to the seller, not the buyer. The buyer should have no such remedy because he willingly paid the price demanded.
- An appropriate remedy would have been by way of an accounting for the defendant’s profits, but the plaintiff did not seek this remedy.
- The remedies provided under the New York statute do by the defendant which, under some circumstances, might be the most desirable remedy for the plaintiff (
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Chapter Eleven. Mistake 37 results (showing 5 best matches)
- as a remedy. The significant fact is the underlying agreement; the relevant mistake is the incorporation of that agreement into a document. The remedy then is to reform the writing to conform to that underlying agreement.
- Although many cases speak of rescission as a remedy, this is technically an unnecessary procedure because there is 614 S.W.2d 615 (Tex. 1981)—“no meeting of minds” on material issue; rescission is proper remedy]
- the appropriate remedy for a deficiency is restitution for the overpayment ( remedy, unless it can be said that what remains is an essentially different piece of ground— 538 P.2d 883 (Colo. 1975)—rescission proper remedy where only 16.5 acres of 26.5 acres bargained for could be conveyed by seller]
- remedies are of the variety based on the enrichment of the transferee. Obviously, there are no preventive remedies (the plaintiff does not know that he is going to make a mistake). And damages are not allowable because no “wrong” has been committed by the other party. [
- equitable remedy
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Chapter Ten. Duress, Undue Influence, and Unconscionable Conduct 24 results (showing 5 best matches)
- In the cases considered in this chapter, choice of remedy is no problem. are the sole remedies, because duress and undue influence are not torts and do not provide a basis for the remedy of compensatory damages. Examination questions thus necessarily focus on sorting out the degree of outrage necessary to induce a court to take action to restore to an aggrieved party whatever benefits have been extracted by the defendant’s misconduct. This means that you must understand the various types of duress:
- If chattels are wrongfully withheld, the legal remedy of replevin is usually an adequate remedy so that
- 2. Basic Remedy Is Restitution
- Apart from the few cases above where the duress is actionable by itself, the only remedy for duress is remedies by affirming the transaction.)
- way out of the transaction in the first place. If there was, the party is expected to exhaust any other remedies. Failing to do this, no judicial remedies will be granted. [
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Chapter Eight. Personal Injury and Death 8 results (showing 5 best matches)
- The above remedy was available only with respect to to the wife. If she was killed, the husband’s remedy was a
- For all practical purposes, questions about personal injury or death involve only the remedy of
- 1. Damages as Remedy—In General
- 4. Restitutionary Remedies
- If a person is tortiously injured, and members of the victim’s family pay the medical expenses and perform nursing services, restitution may be an appropriate remedy, at least if it can be proved that such services would
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Chapter Two. Damages 6 results (showing 5 best matches)
- completed. If plaintiff’s losses on full performance exceed reliance damages, there is no damage remedy at all (but other remedies may be available). [
- If a party has sustained harm because of a tort, the objective of the remedy of compensatory damages is to place the injured party in substantially as good a position as she occupied
- Recovery for purely economic loss in products liability cases is generally denied whether the theory of the complaint is negligence or strict liability. The injured party must look to the contract for relief. This has the effect of restricting the remedy to breach of warranty as provided by the Uniform Commercial Code.
- c. Distinguish—Alternative Remedies
- 47 Cal. 3d 654 (1988), decided that tort remedies are not available for
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Approach to Exams 6 results (showing 5 best matches)
- In many areas, the common law doctrines have been modified (and in some cases expanded) by statute. It follows that the choice of remedies in such areas must be based on the content and interpretation of such statutes. You should especially realize that some of these statutes are of such widespread enactment ( , the Uniform Commercial Code) that the common law remedies have been virtually supplanted.
- The law of remedies deals with the
- 1. Is There a Damages Remedy Available?
- 2. Is a Restitutionary Remedy Available?
- a. Is the remedy at law inadequate?
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Title Page 1 result
Table of Cases 1 result
Summary of Contents 24 results (showing 5 best matches)
Index 41 results (showing 5 best matches)
- Publication Date: April 8th, 2016
- ISBN: 9781634591591
- Subject: Remedies
- Series: Gilbert Law Summaries
- Type: Outlines
- Description: The topics covered in this outline include damages, equitable remedies (including injunctions and specific performance), restitution, injuries to tangible property interests, and injuries to business and commercial interests (including business torts, inducing breach of contract, patent infringement, unfair competition, and trade defamation). Also discussed are injuries to personal dignity and related interests (including defamation, privacy, religious status, and civil and political rights), personal injury and death, fraud, duress, undue influence, unconscionable conduct, mistake, breach of contract, and unenforceable contracts, including statute of frauds, impossibility, lack of contractual capacity, and illegality.
