Remedies in a Nutshell
Authors:
Tabb, William Murray / Janutis, Rachel M.
Edition:
3rd
Copyright Date:
2017
22 chapters
have results for remedies
Chapter 1 Introduction to Remedies 14 results (showing 5 best matches)
- There are four basic types or classifications of remedies: (1) coercive remedies, (2) damages, (3) restitution, and (4) declaratory relief. The processes and principles by which the most effective remedies are selected, and the relationship of alternative remedies to each other, are the central themes of this book. Remedies are defined and limited by the source of the right, whether by statute, common law, or Constitution. (Chapter 2)
- Several basic themes recur in the study of remedies. One is the distinction between entitlement and measurement of relief. For example, whether a party may receive attorneys’ fees through a federal fee-shifting statute is a question of entitlement, but how those fees are calculated is a question of measurement. Similarly, the nature of the defendant’s conduct determines entitlement to the discretionary remedy of punitive damages, but the evidence relevant to assessing punitive damages is a measurement question. Another theme is the interrelation of remedies when there are multiple remedial options in law and equity. For instance, assume that a manufacturing plant emits noxious fumes that cause damage to an orchard located on a neighboring landowner’s property. The landowner may successfully maintain an action for nuisance. Remedies may include damages for past and/or future injuries, as well as injunctive relief to prohibit future invasions. The availability of an injunction...remedies
- The law of remedies also considers various defenses, limitations and adjustments to claims. Fundamental issues of fairness between the parties affect all aspects of remedies law.
- Coercive remedies include injunctions (Chapter 3) and specific performance (Chapter 4). They are available only from a court of equity, where a judge determines whether the plaintiff is entitled to the “extraordinary relief” of an order commanding the defendant to do or refrain from doing specific acts. These remedies, like all equitable ones, are subject to the equitable defenses, including unclean hands, laches, estoppel, election of remedies, and unconscionability. (Chapter 5).
- Injunctions and specific performance remedies are called “coercive” because they are backed by the contempt power of the court. A court can coerce disobedient defendants with a civil contempt order, such as one designed to compel a party in an ongoing lawsuit to furnish discovery documents. The sanctioned party can purge themselves of that order by compliance with the underlying. A court may impose incarceration and fines, and award damages to compensate the plaintiff for losses incurred by the willful disobedience of the order. Further, a court may summarily impose criminal contempt to protect the orderly administration of the judicial proceedings, provided certain procedural safeguards are followed. (Chapter 7) Injunctive decrees are also characterized as “extraordinary” remedies because courts hesitate to issue an equitable order that binds a party
- Open Chapter
Preface 5 results
- This Nutshell on Remedies provides an overview of judicial remedies. It explores the substantive requirements for major remedies at law and in equity as well as the practical considerations that aid with context and application. The study of Remedies is challenging because it arises in all areas of law—statutory, constitutional, and common law. The questions of remedial availability and effectiveness are among the most important issues in law because the potential remedy in a case reflects the extent to which the right may be vindicated. One of the central themes in this book is the relationship between “rights” and “remedies” and how a right is only as great as the remedy that protects it.
- Other major themes in this book include the selection of the most effective remedy when alternative remedies may be available and the relationship of multiple remedies to each other. For example, the victim of embezzlement may seek either damages or restitution, but not both. In contrast, someone who has suffered an injury to land for repeated trespasses may have multiple and compatible remedies. In many cases involving injuries to land, the innocent landowner may seek compensatory damages for the harm suffered and may also seek equitable relief to prevent invasions in the future. The study of remedies includes the entitlement and measurement of damages, the principles guiding equitable relief, and the process by which law and equity may be applied for the benefit of the landowner in such a case.
- In most law schools, Remedies is a capstone course that builds on the study of first year subjects in torts, property, contracts, and civil procedure. It assumes familiarity with the substantive doctrines that form the basis for establishing rights under those areas of law, such as whether negligence exists or a contract breach has occurred. The issue of remedies arises when one or more legally recognizable right exists and has been violated. The question then becomes determining what remedies may be available to enforce, vindicate, redress or compensate that right.
- The organization of the book reflects the four classifications of remedies: injunctions, damages, restitution and declaratory relief. The major remedial alternatives are examined within each classification. Therefore, the study of injunctions considers the various types of temporary orders, permanent injunctions, and specific performance. The study of compensatory damages for contract breach evaluates both the common law rules and those under Article II of the Uniform Commercial Code.
- In order to gain more insight into the practical application of each area, the book also evaluates the important defenses, exceptions, limitations and adjustments to the basic remedies. Thus, the study of equity becomes more fully understood by evaluating the requirements of civil and criminal contempt to enforce equitable decrees. The examination of damages is completed by matters such as the doctrine of avoidable consequences and the rules of discounting to present value for lump sum awards in personal injury cases. The exploration of equitable restitution similarly includes the limiting doctrines of tracing, change of position, volunteers and the bona fide purchaser for value rule.
- Open Chapter
Chapter 20 Declaratory Remedies 10 results (showing 5 best matches)
- The relationship between substantive rights and remedies has been a theme throughout this Nutshell. Because a right is only as great as the remedy that vindicates it, the variety of remedies available for particular rights contributes to their importance. Moreover, if there is no remedy for a right, then the right is a “paper tiger” without means of enforcement.
- The declaratory judgment is a statutory remedy available under modern state and federal law. It gives courts the power to determine the rights or legal relations of parties to a justiciable controversy. This statutory remedy developed in response to a gap in the common law that no specific means existed to declare the status or rights of parties to resolve certain types of disputes. Apart from several specialized declaratory remedies, such as bills to quiet title or cancellation of instruments, the closest counterpart under common law was nominal damages. Those remedies were much more limited in scope and application than subsequent declaratory judgment statutory schemes.
- A declaratory judgment is unique among remedies in that it does not provide monetary compensation nor does it mandate or prohibit specific actions. In contrast with equitable decrees such as injunctions, it is not considered an extraordinary remedy and therefore does not require a showing that other remedies are inadequate. A declaration of rights does not coerce or bind parties
- An award of nominal damages is not an insignificant remedy in this context, however, even though it provides no monetary recovery to the plaintiff other than a token amount. The award carries significance in that it serves as a declaration of the plaintiff’s victory on the substantive claim. That remedy is a limited one, but not an entirely empty one.
- In addition to basic principles of comity and federalism, courts take into account whether declaratory relief would settle the controversy and serve a useful purpose, the convenience of parties and witnesses, whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or a race for , if the dispute presents novel or complex state law issues better resolved by state court, judicial economy in avoiding duplicative or piecemeal litigation, discouragement of forum shopping, the effectiveness of alternative remedies,
- Open Chapter
Chapter 5 Equitable Defenses 13 results (showing 5 best matches)
- The Restatement (Second) of Contracts approaches the issue of election among remedies from the perspective of estoppel. Section 378 provides that 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.” A change of position is considered “material” if allowance of a switch in remedies would be “unjust.”
- The Uniform Commercial Code specifically rejects the doctrine of election of remedies as a “fundamental policy.”
- The doctrine of election of remedies provides that when an injured party has two available but inconsistent remedies to redress a harm, the act of choosing one constitutes a binding election that forecloses the other. A classic illustration of the doctrine is that a defrauded party must choose or “elect” between disaffirming a contract through rescission or affirming the contract and seeking damages. The rule developed historically to promote traditional equitable principles against double recovery and undue prejudice of a defendant. Although the policy justifications for the doctrine appear sound, some courts have applied the rule rigidly and produced unexpected and occasional harsh results. The doctrine may operate to extinguish a substantive cause of action even prior to filing suit and under circumstances where the plaintiff never intended to make a true election of remedy.
- than the Chancellor’s original courts of equity, but its orders still bear the name “extraordinary relief.” Whenever the plaintiff seeks equitable remedies, the court may apply the doctrines of laches, estoppel, unconscionability, unclean hands, or election of remedies.
- Election of Remedies
- Open Chapter
Chapter 9 Special Issues in Equity 22 results (showing 5 best matches)
- When a claim is successfully brought pursuant to a statute, the court will examine the list of remedies provided to redress the statutory violation. If no remedies are enumerated, the court may imply common law remedies. A statute may be silent with respect to equitable relief but expressly provide for damages. In that instance, the court must determine whether implying equitable remedies would achieve the goals of the statutory scheme. Conversely, when a statute provides for only equitable remedies, the court must assess whether implying damages would carry out the statutory purposes.
- The process of statutory interpretation begins with legislative intent, which may be gleaned from legislative history and the plain language of the statute. In some 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. In some other cases, when courts lack clear guidance from the text or history of a statute, judges have invoked the general policy objectives behind the statute to allow additional remedies.
- the Court interpreted a federal statute, the Biologics Price Competition and Innovation Act of 2009, to foreclose injunctive relief for certain violations of the Act. The Act authorizes the holder of protectable patents of biological products to bring a declaratory judgment action for infringement in certain instances. The Court reasoned that the specific enumeration of the declaratory judgment remedy in the Act’s detailed enforcement scheme provided strong evidence that Congress consequently intended to exclude all other federal remedies, including injunctive relief for particular violations of the Act. Further, the Court buttressed its finding of equity preclusion by observing that the Act did provide for immediate injunctive relief as an appropriate remedy for the violation of other rules which governed confidentiality of information.
- Following the determination of entitlement to injunctive relief, the court also holds discretion in the manner of fashioning the remedy given. Assume, for example, that a noise ordinance provides standards for allowable decibel levels for commercial businesses during specific hours. The ordinance further states that an injunction was one of several specifically authorized remedies to abate a violation. If the court decides to issue an injunction, it may tailor the order to prohibit certain offending activities by the business within specified times. The court could include certain conditions upon the enjoined party mandating that it modify its operations to conform to the ordinance requirements. Upon demonstrating compliance, the injunction could be dissolved.
- The general notion of restraint embodied in the rule is not followed in all cases, however. If the enforcement of the criminal laws does not appear to effectively abate the conduct, then an equity court may decide that a civil injunction would be an appropriate remedy. Consider a situation, where operation of a gambling house violates provisions of a state or local statute, but the only penalty specified for violation under the statutory scheme is a small fine. Several actions of enforcement of the statute resulted in imposition of fines, but the gambling house continues in operation. At that juncture, the equity court may determine that the criminal statute does not constitute an adequate legal remedy to address the proscribed conduct and issue a permanent injunction.
- Open Chapter
Chapter 2 The Significance of Remedial Characterizations 23 results (showing 5 best matches)
- The relationship between “rights” and “remedies” is critical to understanding the availability and efficacy of various types of judicial relief. The study of remedies begins with the assumption that the plaintiff established a substantive right. That right may be (1) based upon a statute, (2) derived from the common law, or (3) permitted directly from the Constitution. The court need not decide the question of remedy if the plaintiff does not demonstrate the existence and infringement of a right under one of those sources of law. Beyond that truism, even after the plaintiff prevails with a substantive right, it does not automatically follow that a desired remedy is available for the violation of that particular right. Not every right supports all possible remedies. Just as rights must have a source in the law, remedies also must derive from common law or statute.
- The relationship between rights and remedies is circular in the sense that a right is only as great as its remedy and remedies are limited by the rights they protect. Thus, for example, when the legislature
- Future chapters examine remedial requirements and evaluate remedial choices. This chapter examines the significance of whether a remedy is legal or equitable in nature, and then how the source of a right may impose a limitation on the remedy.
- The cases entertained by Chancery historically fell into two main categories: (1) those where the suitor had some remedy at law, but not an adequate one, and (2) those where a remedy at law was unavailable because the cause of action was not one recognized at law. In modern law, the first category is reflected in cases where the suitor seeks an equitable remedy such as an injunction or specific performance on the grounds that the damages remedy at law is inadequate. “Inadequacy” has a special meaning in the law of equity because it is a shorthand expression
- Once the plaintiff establishes a substantive right, the available remedy will rest on the same source. That source may impose limitations on the remedy itself. Consider the provision governing unconscionable contracts in the Uniform Commercial Code. Section 2–302 provides:
- Open Chapter
Index 26 results (showing 5 best matches)
Chapter 10 Breach of Contract Remedies 25 results (showing 5 best matches)
- On the equity side, some of the restitutionary remedies included constructive trusts, equitable liens, accounting for profits, subrogation, and cancellation and reformation of instruments. On the law side, the remedies emerged in the form of “common counts”, such as “money had and received”, “quantum valebant”, and “quantum meruit”. These were generally called “quasi-contracts” because the court would order a payment of money for either goods or services based on a fictional construct, not an actual contract. The remedy was unrelated to an express contract or implied-in-fact contract but instead was a contract implied-in-law to achieve the result of preventing unjust enrichment.
- Several issues exist with respect to whether a liquidated damages clause is considered the exclusive remedy for breach of contract or just an alternative course of action. The prevailing view is that a valid liquidated damages clause will be the sole remedy available to the non-breaching party only upon express language evidencing a clear intent to exclude all other remedies.
- Further, Article 2 provides buyers and sellers with corresponding remedies of rescission and restitution [
- The legal remedy available to non-breaching sellers that roughly corresponds to the equitable remedy of specific performance for buyers is called an action for the price under
- Remedies for breach of contract for the sale of land may include either damages or specific performance. The remedy of specific performance has been traditionally available to non-breaching purchasers of land. The rationale for authorizing equitable relief is that every parcel of land is unique, so the remedy at law for damages would be inadequate. Courts retain discretion, however, to determine the propriety of granting specific performance. Therefore, a court may deny equitable relief if the balance of hardships weighs heavily in favor of the vendor.
- Open Chapter
Chapter 3 Preventive Injunctions 20 results (showing 5 best matches)
- In one class of cases, the inadequacy rule does not apply. Claims invoking substantive equity, as opposed to remedial equity, may be brought without regard to the adequacy of the remedy at law. Substantive equity allows a cause of action in equity
- The traditional test for issuance of a preventive injunction requires a plaintiff to demonstrate: (1) that she has suffered an irreparable injury; (2) that remedies available at law are inadequate; (3) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
- REMEDIES AT LAW
- Inadequacy of Remedies
- The first element of equity jurisdiction requires an inadequacy of the remedy at law. History explains the rule better than logic, but the rule still has force to restrict the availability of equitable remedies. The inadequacy rule was originally applied by the Chancellor in the sixteenth century to determine whether to take a case or to leave the petitioner to go to the law courts with a writ for relief.
- Open Chapter
Chapter 4 Specific Performance 18 results (showing 5 best matches)
- Specific performance is an equitable discretionary remedy that is issued to enforce contractual rights and duties. The normative remedy for breach of contract is damages, so specific performance requires a showing that the claimant’s rights and expectations pursuant to the agreement necessitates equitable intervention. The role of the court in ordering prospective performance is simply to carry out the original bargain intended by the parties. The remedy, like other types of injunctions, binds the party enjoined
- Historically, a lack of mutuality of remedy sometimes impeded the availability of specific performance. The rule held that specific performance would only be available to one party if it was equally available to the other contracting party. The mutuality of remedy argument rests on a pure fiction in that it asks a theoretical question of the availability of a remedy if the other party had breached. Although the symmetry and apparent fairness of the doctrine reflected equity’s traditions of justice, the rule worked unsatisfactorily in certain instances. Additionally, the doctrine fails to consider that parties bargain for different things.
- INADEQUATE REMEDY AT LAW
- The most important factor affecting the decision of specific performance typically is whether an award of damages would constitute an adequate legal remedy. The preference for legal remedies over equitable orders exists for several reasons. First, since a specific performance order is essentially a specialized type of injunction, the doctrine of subordination of equitable remedies is followed. The law views equity as a harsher avenue of relief because it binds parties
- The inability to reasonably effect cover due to the uniqueness or scarcity of other non-fungible goods, such as heirlooms or works of art, may similarly satisfy the standard of an inadequate remedy at law. Further, such items may present problems in valuation and proving damages with reasonable certainty. Finally, an inadequate remedy at law may arise where the claimant faces difficulties in collecting the damages awarded, such as where the breaching party is insolvent.
- Open Chapter
Title Page 1 result
- Despite this push-back, structural injunctions remain a valid tool for curbing unconstitutional prison conditions.The Supreme Court reaffirmed the federal courts’ responsibility to remedy unconstitutional prison conditions in In that case, the Court recognized the continued ability of federal courts to issue injunctions to remedy unconstitutional prison conditions, including orders reducing or limiting the size of prison populations.
- Some courts, however, have begun seeking to avoid excessive entanglement in institutional policies and practices by identifying the required outcome necessary to remedy the constitutional defect but allowing the institutional defendant to determine the means to achieve that outcome. Thus, for example, in maintained the ability to determine the means by which it would meet the required capacity. In these types of cases, the courts retain jurisdiction to ensure that the institution continues to make progress toward remedying the constitutional violation.
- The purpose of the preventive injunction is to stop the defendant from inflicting future injury on the plaintiff. Preventive injunctions can exhibit either prohibitory or mandatory character, but still focus on abating or ameliorating prospective harms in some fashion. As examined in Chapter 3, to receive a preventive injunction the plaintiff must prove the violation of a legally protected interest, the inadequacy of legal remedies, the imminent likelihood of sustaining irreparable harm absent equitable intervention, and the balance of hardships favoring the grant of equitable relief. The court also considers the public interest, if applicable, as well as its own interest in the ability to fashion and supervise the order.
- The three modern types of injunctions share these requirements but differ in their forms and functions. Due to the nature of the issues presented and the interests of the parties involved, they often contain more complexities than preventive injunctions. Such injunctions may seek to remedy ongoing effects of past harm as well as prevent future harm. They frequently require more extensive judicial supervision than preventive injunctions, such as presented in an equitable order mandating comprehensive prison reform. These injunctions also may raise separation of powers questions and the institutional competency of courts to effectuate institutional change.
- Open Chapter
Chapter 16 Unjust Enrichment 19 results (showing 5 best matches)
- In the law of contracts, a material mistake which undermines the integrity of the bargaining process and the fundamental assumptions of one or more parties in entering into the agreement may justify various remedies, including reformation or rescission and restitution. Similarly, in the law of equitable restitution evidence of certain types of mistakes may support disgorgement of benefits to avoid unjust enrichment.
- A mistake that may justify some remedy can occur during formation, integration, or performance of the contract. The nature of the appropriate remedy will vary depending upon when the mistake occurred and whether it is classified as mutual or unilateral. Courts allow avoidance in contract law for unilateral mistakes only in very limited circumstances. The mistaken party must demonstrate either that the enforcement of the contract would be unconscionable or that the other party had reason to know of the mistake or was at fault in causing it.
- In many instances, improvements to land cannot be easily severed by removing fixtures from the property. As a result, the innocent landowner may incur hardship if forced to compensate the improver. In a number of jurisdictions, states have enacted “betterment” statutes which provide remedies to certain classes of mistaken improvers of real property, such as persons who occupy under color of title.
- Quantum meruit is not available as an alternative remedy where parties already completed performance under a valid contract and all that remains is the payment of the contract price. When only the contract amount remains unpaid, a plaintiff may sue for the debt with the remedy indebitatus
- The equitable “trust” is created by operation of law for the purpose of conveying the subject property to the rightful owner. A constructive trust is traditionally viewed solely as an equitable remedy, not an independent substantive cause of action. The “constructive” aspect of the equitable trust only means that it operates generally like an express trust
- Open Chapter
Chapter 18 Jury Trials 9 results (showing 5 best matches)
- Likewise, the parties clearly do not have a right to a jury trial in those cases in which the parties seek only equitable remedies not available in the English common law courts. The quintessential example of such a case would be a case in which the plaintiff sought specific performance for a breach of contract.
- Historically, the courts of equity took two types of cases. In the first type of case, the remedy at law was inadequate. This basis was explored through the inadequacy rule covered in Chapters 3 and 4,
- exists in cases at law only and not to cases in equity. Thus, the characterization of a remedy and the claim as legal or equitable is central to whether the right to a jury trial attaches to the claim.
- The right to a jury trial attaches in those cases in which the parties assert only claims which were recognized by the English common law courts and seek only legal remedies available in English common law courts. The quintessential example of such a case would be a case in which a plaintiff seeks compensatory damages for breach of contract.
- The U.S. Supreme Court adopted a historical analog test for determining whether the parties have a right to a jury trial in cases asserting statutory claims that were unknown at common law. Under the historical analog test, the Court attempts to determine whether the cause of action is more analogous to a claim tried in common law courts than a claim tried in courts of equity in the 18th century. To do so, the Court looks at both the nature of the substantive rights being asserted and the nature of the remedy to see whether the claim is more analogous to a claim asserting legal rights. However, the Court generally places more emphasis on the nature of the remedy. For example, in
- Open Chapter
Outline 19 results (showing 5 best matches)
Center Title 1 result
Chapter 17 Limits on Restitutionary Remedies 6 results (showing 5 best matches)
- An equitable lien, on the other hand, does not capture any increased value, but like the constructive trust, it offers priority over general unsecured creditors. This advantage is particularly significant when the wrongdoer is insolvent. An inability to trace would defeat these beneficial remedies.
- The loss of the equitable remedy may be very significant. With a constructive trust, a claimant may be able to recover traced property
- A constructive trust is an equitable remedy that must be imposed on particular assets, not on a value. For example, if a party is inequitably deprived of 100 shares of stock that are valued at $10,000, a constructive trust should be imposed over 100 shares of stock, not $10,000. The value of the stock may decrease to $9,000 through no fault of the present possessor. In that instance, it would be inequitable to impose a
- The claimant bears the burden of establishing the trail of exchanged or transferred property and conceivably may do so through unlimited transactions. The inability to trace exchanged property will defeat entitlement to equitable restitution even though the claimant still retains full legal remedies. An illustration of the tracing limitation occurred in
- Palmer, The Law of Restitution § 2.14. The restitutionary remedy may further allow the rightful owner to seek recourse either from the wrongdoer, an innocent donee, gratuitous transferee, holders of property received by mistake, or a recipient other
- Open Chapter
Chapter 11 Tort Damages 4 results
- Compensatory damages in tort are designed to make the injured party whole by substituting money for tangible and intangible losses caused by the wrong. In contrast, the goal of restitution is to disgorge benefits that are unjust for the defendant to retain, rather than to strictly compensate for an injury. The difference in orientation of these remedies frequently produces different dollar amounts.
- Beginning in the 1980s, many state legislatures enacted various tort reform measures aimed at reducing verdicts awarded in personal injury cases. Tort reform measures vary, but generally these measures alter or restrict traditional common law tort remedies through legislative action. Statutory caps of punitive damages and damages for non-economic losses such as pain and suffering are the most common tort reform measures. Other measures include statutory modification or abolition of the collateral source rule, the rules on joint and several liability, and measures requiring bifurcation or trifurcation of punitive damage claims. Some jurisdictions created mandatory expert screening panels to review claims of medical malpractice. Other jurisdictions enacted measures requiring plaintiffs in certain types of actions, such as medical malpractice and products liability, to submit expert affidavits in support of the plaintiff’s claim with their complaints.
- ...tow truck as well as compensation for loss of use of the vehicle. The court recognized the traditional common law rule that freely allowed loss of use damages for partially damaged but repairable property, yet denied such damages when the property was completely destroyed. The court rejected that anomalous distinction and held that if personalty is totally destroyed, the owner can recover loss of use damages in addition to the fair market value of the property immediately before the injury. However, the owner cannot recover loss of use damages for a period longer than would be reasonably necessary to replace the personal property. The court observed, “That principle compels a plaintiff’s diligence in remedying his loss and deters an opportunistic plaintiff from dilly-dallying at the expense of the defendant.” 478 S.W.3d at 677. The measure of loss of use damages would be based on the particular loss experienced, such as the amount of lost profits, cost of renting a substitute...
- At early common law, the prevailing view was that the death of a tort victim extinguished all the decedent’s potential claims, including those against the tortfeasor. Further, the common law did not recognize any independent claim in the decedent’s dependents for their own losses. In order to alleviate the harshness of this common law doctrine and to correct the anomalous result whereby tortfeasors could effectively “profit” from their wrong by actually killing the victim rather than just injuring them, England passed Lord Campbell’s Act in 1846. This Act created a new and independent remedy for wrongful death in derogation of the common law preclusion. The Act allowed the decedent’s dependents to recover for their own losses occasioned by the decedent’s death. The Act served as the model for numerous statutes promulgated in the United States.
- Open Chapter
Chapter 19 Attorneys’ Fees 1 result
- The traditional study of remedies often devotes primary attention to the substantive and procedural requirements pertaining to claims involving injunctions, damages, restitution and declaratory judgments. The entitlement, fashioning and measurement of such claims are central themes to an understanding of the efficacy and preferences in evaluating the merits and advantages of various remedial options. A complementary remedial issue which may significantly impact the effectual nature of recovery is whether costs of litigation, such as attorneys’ fees, may be awarded to a prevailing party.
- Open Chapter
- economic loss rule prohibits a plaintiff from recovering economic losses such as lost profits in tort and limits the plaintiff to her remedies under the contract between the parties.
- The economic loss rule also precludes a plaintiff from recovering for purely economic losses in tort when the plaintiff and the defendant entered a contractual relationship. In such cases, the economic loss rule limits the plaintiff to her remedies under the contract. For example, if the defendant sells the plaintiff a truck that does not work properly such that the plaintiff cannot deliver her goods to a customer, the economic loss rule precludes the plaintiff from recovering her lost profits on the sale to the customer from the defendant as a matter of tort law. Instead, the plaintiff must seek recovery of the lost profits in an action for breach of contract.
- Open Chapter
- Publication Date: September 15th, 2017
- ISBN: 9781683282082
- Subject: Remedies
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell explains what remedies are and their history. Examines the basic rules for legal and equitable remedies, injunctions, damages, restitution, rescission, reformation, and specific performance. Explains how remedies are used for injuries to realty, personal property and money, personal interests, misrepresentation, mistake, duress, and breach of contract. Also addresses restitution for unenforceable contracts.
