Principles of Remedies Law
Authors:
Weaver, Russell L. / Shoben, Elaine W. / Kelly, Michael B.
Edition:
3rd
Copyright Date:
2017
15 chapters
have results for remedies
Chapter One. Overview 15 results (showing 5 best matches)
- There are many different ways to categorize remedies. Some distinguish between “substitutionary” and “specific remedies.” Others distinguish between “legal remedies” and “equitable remedies.” Still others distinguish between “damage remedies,” “coercive remedies,” “declaratory remedies” and “restitutionary remedies.” While all of these categorizations are useful, they often overlap and none necessarily excludes other categorization possibilities.
- The historical distinction between “legal remedies” and “equitable remedies” led to fundamental differences in the way that those remedies are enforced. Historically, “equitable remedies” have been regarded as remedies—involving a direct order to a defendant to engage or refrain from engaging in a particular act—and have been enforced through the remedy of contempt. In other words, if defendant refused to comply with the personal order, defendant might be jailed or fined for the refusal to comply. By contrast, “legal remedies” do not involve orders, but rather monetary judgments in favor of one party or the other. Defendant’s failure to pay the judgment did not constitute contempt. Plaintiff was forced to enforce the order through the remedies of attachment and execution. In other words, if defendant refused to pay, plaintiff was forced to seize or place liens on
- Preliminary Versus Permanent Remedies.
- Remedies also allows you to see the relationship between “rights” and “remedies.” In many of your first year courses, you were focused on whether plaintiff had a legal right. Is this a tort? Is it a contract? If so, what are the requirements? One tends to think of a Remedies course as assuming that plaintiff’s rights have been violated and to focus on the remedies to which plaintiff is entitled. In fact, as we shall see, how one characterizes the legal right can affect plaintiff’s remedial options. For example, a fundamental principle of equity provides that equitable relief is not available except when the plaintiff’s legal remedy is inadequate. As a result, during this course, we will frequently find ourselves focusing on plaintiff’s “legal” cause of action and the remedies available under that action. Only after we ask, and answer, those questions is it possible to focus more specifically on plaintiff’s remedies.
- Substitutionary Versus Specific Remedies.
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Preface 4 results
- In this book, we examine many different types of remedies. In addition to the damage remedies, which you may have first encountered in contracts, torts and property courses, we also examine injunctive remedies. As a result, we focus on permanent injunctions, as well as temporary (a/k/a, “preliminary” injunctions) and temporary restraining orders (a/k/a, “TROs”). We examine the conditions and limitations on these remedies, as well as the methods (principally, contempt) by which they are enforced. We also examine the declaratory remedy which is frequently combined with the injunctive remedy.
- The purpose of this book is to provide students with a clear and concise guide to the study of remedies. As you will see (or, perhaps, have already seen), remedies is a fascinating course. It involves historical analysis in the sense that historical distinctions between “law” and “equity” condition and limit the availability of remedies today. Remedies also involves modern analysis in the sense that it examines remedial limitations which, whether or not they originated for historical reasons, must have vitality and force today.
- The course also focuses on the array of things a court can do for the prevailing party in litigation. 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.
- A significant portion of the book focuses on damage remedies. Many of these remedies are “substitutionary” in nature because they provide plaintiff with a monetary substitute for her losses. For example, if plaintiff loses an arm in an automobile accident, it is impossible for defendant (or, a court, for that matter) to physically replace the arm. In the face of this impossibility, remedies provides damages to the plaintiff as a limited, and in some respects inadequate, way of compensating for the loss.
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Chapter Nine. Damages 42 results (showing 5 best matches)
- A substitute remedy may be either exclusive or optional. If optional, the plaintiff may elect to pursue remedies under the law instead of the substitute remedy. If the substitute remedy does not specify that it is exclusive, then it is optional. . Most contracts seeking to limit remedies specify that their remedies are exclusive.
- Unless the exclusive remedy fails of its essential purpose, it precludes recourse to remedies under the code. . A remedy fails of its essential purpose unless it provides plaintiff some minimally adequate remedy. For instance, an exclusive remedy limiting the buyer to repair would fail of its essential purpose if defendant cannot repair the item after sufficient opportunity to do so. 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.
- Parties to a contract may include terms intended to limit or to augment the remedies courts normally award. After early hostility to such provisions, courts have begun to enforce these contractual terms relating to remedies, within limits—at least when contract damages are at issue. Contract terms that try to alter tort remedies ( , contracts with doctors) or statutory remedies (
- Inconvenience or Nonfeasibility of Other Remedies.
- Article 2 of the Uniform Commercial Code codifies contract remedies for sales of goods. These provisions usefully illustrate how contract remedies work. Reviewing these provisions should help
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Chapter Two. Equity and Equitable Remedies 31 results (showing 5 best matches)
- One historical distinction that was applied by equity courts was the notion that equitable relief was not available except when a plaintiff’s legal remedy was inadequate. While the King might dispense justice to those who appealed to him, even if the plaintiff might have been able to avail himself of a legal writ or a legal remedy, the later courts of equity were reluctant to do so. As a result, they developed and applied the notion that equitable remedies should be regarded as extraordinary, and that equity courts should not provide relief when the plaintiff’s legal remedy (usually damages) would suffice. In other words, when plaintiff’s legal remedy was regarded as providing adequate relief, equity would dismiss the case, thereby forcing plaintiff to pursue his legal remedies.
- The modern law of remedies owes much to its historical roots. This is particularly true for the so-called “equitable remedies.” At one point in history, there were two separate and independent court systems referred to as “law courts” and “equity courts.” Whereas “law courts” granted “legal relief,” “equity courts” granted “equitable relief.” Each system proceeded according to its own rules and criteria.
- Although the overwhelming majority of states subsequently merged the two court systems into a single system, modern courts still distinguish between “legal remedies” and “equitable remedies,” and they use historical distinctions to limit the availability of “equitable relief.” For example, as we shall see, modern courts will not ordinarily grant equitable relief when plaintiff has an adequate remedy at law. In other words, despite the merger of the two court systems, historical and limitations distinctions remain important today.
- “legal remedies” and “equitable remedies,” and continue to subject equitable remedies to many of the historical distinctions and limitations that were applied in equity.
- The dividing line between law and equity was not entirely precise and clean. Indeed, a given case might be heard (in all or in part) in both a law court and an equity court. For example, suppose that plaintiff sought specific performance in a court of equity. As we shall see, the remedy of specific performance was discretionary, rather than automatic, so that the equity court was not required to grant the requested relief. If specific performance was denied, plaintiff might have been relegated to his legal remedies, and forced to return to a court of law to seek those remedies. Even if a court of equity granted the request for specific performance, if substantial damages were involved as well, plaintiff might have been forced to go to the law court to obtain those damages. In other words,
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Chapter Four. Preventive Injunctions 38 results (showing 5 best matches)
- The plaintiff must demonstrate that damages are an inadequate remedy in order to show that the remedy at law is inadequate. A remedy may be inadequate either because an injured party cannot be adequately compensated in damages or because the damages which may result cannot be measured by any pecuniary standard.
- It is axiomatic that remedies are derived from the same source as the substantive right under which a claimant prevails. When a right derives from the common law, then common law remedies govern. When a claim is brought under a statute, the court looks to the statutory provision for remedies. If injunctions are enumerated, common law principles are generally implied.
- Where a statute is silent with respect to equitable relief but expressly provides for legal relief such as damages, the court must determine whether equitable remedies may be nonetheless appropriate. Conversely, when a statute provides for only equitable remedies, the issue is whether a damage remedy is foreclosed. The process of statutory interpretation begins with the plain language of the statute and its reflection of legislative intent. Most jurists will also consult legislative history and other sources of guidance to determine the purpose of a statute. In many cases, the statutory enumeration of particular remedies and the omission of others have led courts to find a negative implication that only the remedies expressed were intended by the legislature and all others excluded.
- It is often held that an injunction is the “usual” remedy in nuisance cases. This rule is followed particularly where the nuisance is of a public character and affects health and safety. In such cases, the remedy at law is inadequate and the harm is great and irreparable, so courts grant injunctive relief as a matter of course.
- The rule that the remedy at law must be inadequate does not mean that all economic interests are foreclosed from equitable relief. Quite to the contrary, economic interests are most frequently what is at stake. However, the damages remedy may be inadequate because the potential losses are too uncertain or indefinite in calculation to permit an adequate damages recovery. For example, a patent holder who seeks to enjoin competitive use by an infringer has economic interests at stake, but the remedy at law is typically inadequate because of the difficulty of ascertaining the dollar loss caused by the unlawful competition.
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Chapter Eight. Declaratory Judgments 14 results (showing 5 best matches)
- This remedy is thus a valuable tool for saving the time and expense of more extensive litigation. As the sections below explain, this remedy is available under both federal and state law.
- The remedy of declaratory judgment is created by statute and is available under both federal and state statutory schemes. It is a remedy that is neither legal nor equitable in character. Because it is a creature of statute, it is
- The declaratory judgment is a remedy that declares the rights or legal relations of the parties to a situation or expresses the court’s opinion on a question of law. The declaration does not order anything to be done, but it is reviewable as a final judgment and has
- The declaratory judgment remedy does not create new rights but simply offers another remedy in appropriate circumstances. Its advantage is that it determines a legal question or the legal relationships of the parties at an early stage of a dispute. For example, in a patent dispute, the possible infringer faces potential treble damages and attorney fees for willfully infringing the patent. If the threat of liability is “sufficiently immediate,” a declaratory judgment may resolve the rights of the parties.
- Finally, it is a relevant factor whether there is an alternative effective remedy. , specifically provides that the existence of another remedy does not preclude declaratory relief, although the Advisory Committee’s Note provides illustrations of when courts might appropriately decline jurisdiction for that reason.
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Chapter Seven. Restitution 13 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.
- However, a constructive trust is generally inappropriate when plaintiff cannot claim an equitable interest in the specific property on which the remedy would be imposed. In , a husband suffered severe physical injuries in an automobile accident and received a sizeable financial settlement. The man had fathered a child by a prior marriage and was behind on child support payments at the time he received the settlement. As a result, the ex-wife sought to impose a special restitutionary remedy on the settlement. The court refused the request noting that such remedies are imposed only to prevent unjust enrichment, and that the unjust enrichment “must result from the receipt of the particular property upon which the lien is imposed.”
- SPECIAL RESTITUTIONARY REMEDIES
- Both constructive trusts and equitable liens offer plaintiffs special advantages over other remedies. The three most important advantages are that both devices allow plaintiffs to “trace” their property into other forms, can be used to give plaintiffs priority over other creditors, and can be used to circumvent special debtor exemptions such as the homestead exemption.
- Restitution is an extraordinarily powerful cause of action that provides litigants with unique remedial options that can be used in conjunction with, or substitution for, traditional causes of action and remedies. In addition to monetary recoveries, restitutionary actions provide plaintiffs with the opportunity to “trace” their property into other forms, and to invoke special remedial devices such as constructive trusts, equitable liens and subrogation.
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Chapter Six. Injunctions in Context 13 results (showing 5 best matches)
- The injunctive remedy has been used in a variety of contexts, and specific precedential rules have developed regarding its use in many of these contexts. In this chapter, we examine some of these contexts and rules.
- appropriate remedy, consistent with constitutional privilege.
- provided an adequate legal remedy for accomplishing that objective. As the
- The development of modern structural remedies has its roots in the United States Supreme Court’s holding in . In that case, although the Court held that the Topeka, Kansas, school district was illegally segregated, the Court was unwilling to order immediate desegregation. Instead, the Court adopted a go slow approach and deferred a remedy until its decision in
- In addition, the Court has placed limits on the availability of structural remedies. For example, in ...criminal proceedings, the Court found that federal intervention was inappropriate under Our Federalism principles. The Court did recognize that respondents might be arrested again, and therefore might be again subject to illegal practices. However, the Court found this possibility insufficient to justify judicial intervention noting that there was no allegation that any Illinois law was unconstitutional on its face. As a result, the Court found that the alleged injury was not “sufficiently real and immediate” since the Court was unwilling to “anticipate whether and when these respondents will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture.” Moreover, the Court emphasized that federalism principles militated against judicial intervention, and that respondents would have numerous judicial remedies...
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Chapter Three. Contempt 6 results (showing 5 best matches)
- For example, if the defendant has contracted to perform a show where trained elephants fly, the court cannot jail the defendant until such time as the show goes on because elephants simply cannot fly. Damages would be the appropriate remedy if the contract is otherwise enforceable. In contrast, if a painter had agreed to sell a unique and completed painting and refused to do so, resistance to the specific performance order could result in coercive civil contempt until the painter complied. The painter can raise the impossibility defense if the painting has been destroyed or earlier sold to another person. The coercion cannot continue if compliance is impossible, and again the remedy would be damages if the contract is otherwise enforceable. Compare the fact that as a matter of substantive law, impossibility (or commercial impracticability
- The right to a jury trial depends upon the type of contempt. There is no right to a jury trial in a civil contempt case because the plaintiff receives this remedy as a part of the underlying equitable remedy, such as a specific performance order. The exception to this rule is
- Civil contempt also has two subclassifications: compensatory civil contempt and coercive civil contempt. In contrast to the public function of criminal contempt, the function of civil contempt is to benefit the plaintiff’s private interests. Whereas criminal contempt serves to vindicate the state’s interest in obedience, civil contempt provides a remedy for the individual litigant to coerce obedience (coercive civil contempt) or to compensate for losses occasioned by disobedience (compensatory civil contempt).
- Although the United States Supreme Court found in favor of the plaintiff on the “employer” issue, it held as an alternative ground that the defendant could be punished criminally for violating the court’s order regardless of whether the plaintiff prevailed in the underlying action. The Court distinguished between civil and criminal contempt, and held that the difference in the function of the two contempts justifies the difference in their durability. The Court explained that civil contempt remedies do not survive if the underlying claim fails, but that criminal contempt penalties survive because they are independent and serve to vindicate the authority of the court.
- As an illustration of these principles, assume that a court orders a defendant ex-employee not to violate a noncompetition agreement with a former employer. The agreement purports to restrict the defendant from competing against the former employer for a certain period of time in a certain geographic area. The ex-employee violates the order and is held in criminal contempt. On appeal, the court holds that the non-competition agreement is overly broad and unenforceable, and therefore that the ex-employee should prevail on the merits. Notwithstanding the employee’s success on the merits, criminal contempt findings will stand regardless of the outcome of the case. By contrast, any civil contempt sanctions will fall when the ex-employer loses the underlying case because civil contempt remedies depend upon the plaintiff’s ultimate success on the merits in the underlying case.
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Table of Contents 12 results (showing 5 best matches)
- Chapter Two. Equity and Equitable Remedies
- 1.Equitable Relief Was Unavailable Except When Plaintiff’s Legal Remedy Was Inadequate
- 1.Equitable Relief Continues to Be Available Only When Plaintiff’s Legal Remedy Is Inadequate
- 2.Equitable Remedies Continue to Be “In Personam” in Nature
- 3.Equitable Remedies Continue to Be Based on Principles of “Conscience” and “Equity”
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Chapter Five. Temporary Injunctive Relief 10 results (showing 5 best matches)
- , that purpose is insufficient by itself to justify relief. Rather, a trial court focuses primarily on whether the plaintiff can establish that the absence of immediate relief will cause irreparable harm under circumstances where the court is justified in protecting the plaintiff’s interests even at the risk of causing loss to the defendant before there can be a full trial on the merits. As Judge Posner explained, the “premise of the preliminary injunction is that the remedy available at the end of trial will not make the plaintiff whole; and, in a sense, the more limited that remedy, the stronger the argument for a preliminary injunction.”
- injunction may prevent the commission of an act that threatens to render future remedies ineffectual. For example, a court may issue a restraining order to prevent a defendant from removing or disposing of property for the purpose of defrauding creditors with liens, or to preserve property that will be the subject of the subsequent trial.
- The purpose of temporary relief is different from the purpose of remedies awarded at the end of a full trial on the merits. Preventing further damage pending trial is different from putting the parties in their rightful positions. As such, it is not clear that a statute affecting remedies after a full trial would apply equally to temporary relief. For example, the Texas legislature enacted a statute in 2011 that clarified the enforceability of noncompetition agreements. The act said that they “are enforceable” when they meet certain enumerated standards, not including irreparable harm.
- It is an extraordinary remedy to enjoin a defendant when there has been very little opportunity to receive evidence in the matter. The court must set a time for a preliminary injunction hearing as soon as possible in order to minimize the time of restraint without at least such a hearing. In
- The threshold provides that a “serious question” must be presented. The threshold for irreparability is that there is some level of irreparable harm. Thus, even if there is an extremely high probability of success on the merits, the lack of any irreparable harm would preclude the preliminary injunction. A contract debt without more, for example, would not support the order because the remedy at law—damages—would remain adequate. The “single continuum” does not extend that far.
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Index 17 results (showing 5 best matches)
Title Page 1 result
- Publication Date: December 16th, 2016
- ISBN: 9781634596862
- Subject: Remedies
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This book is written in a student-friendly style designed to facilitate learning and comprehension. In addition the book is up-to-date and contains the latest decisions from the United States Supreme Court and the lower federal and state courts.
