Remedies in a Nutshell
Authors:
Tabb, William Murray / Janutis, Rachel M.
Edition:
4th
Copyright Date:
2021
28 chapters
have results for remedies in a nutshell
PrefaceV 6 results (showing 5 best matches)
- 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.
- 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.
- 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.
- Open Chapter
Chapter 20. Declaratory Remedies 24 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.
- 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
- 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.
- 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, and potential inequities in permitting the plaintiff to gain precedence in time and forum.
- Open Chapter
Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © 2017 LEG, Inc. d/b/a West Academic
- © 2021 LEG, Inc. d/b/a West Academic
- Open Chapter
Chapter 5. Equitable Defenses 45 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 equitable defenses covered in this chapter are laches, unclean hands,
- These defenses have been preserved even in the merged system of law and equity. Modern equity still possess a moralistic foundation: a court will not grant equitable relief if the plaintiff behaved in a way prejudicial to the defendant or offensive to public policy. An equity court today is guided by discretion that is more constrained by principles of
- For example, a party cannot obtain specific performance of a contract affirming the bargain and
- Open Chapter
Chapter 1. Introduction to Remedies 26 results (showing 5 best matches)
- 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
- 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 order. 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
- The damages remedy compensates plaintiffs for losses sustained in violation of their personal, property, or contractual rights. Once a plaintiff establishes both the claim in substantive law and the entitlement to a particular type of damages, the problem of measurement remains. For example, what is the proper measure of damages if a contractor fails to follow specifications in building a house? If the parties attempted to set damages in advance through the contract, will a court enforce the provision? The law of contract damages governs both questions. (Chapter 10)
- The study of remedies answers the question that is most important to the victorious party in a lawsuit: What does a substantive victory mean in practical terms? A plaintiff may seek monetary recovery or an equitable order to restrain certain activities of the defendant. Conversely, a defendant wants to limit liability or be protected by recovery under a bond if wrongfully enjoined. Both parties want to know about the availability of attorneys’ fees, if any, to the prevailing litigant. By definition, a remedy is the means by which rights are enforced or the violation of rights is prevented, redressed, or compensated.
- 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)
- Open Chapter
Chapter 2. The Significance of Remedial Characterizations 25 results (showing 5 best matches)
- 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 for the policy that equitable remedies are subordinate to legal ones. They are subordinate in the sense that the damage remedy is preferred in any individual case if it is adequate. Although scholars have attacked this rule as outdated, the usual policy
- 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 creates a new statutory right and defines a remedy such as $500 per violation, then a wrongdoer may repeatedly violate if he or she is willing to pay the limited amount of damages. Unless the court is willing to expand the remedies beyond the statutory scheme and allow for an injunction, the remedial limitation diminishes the right.
- Assuming that one or more remedies is available, a plaintiff must then establish the requirements for the particular remedy. In some instances, a plaintiff may have multiple remedies available for the same operative core of facts. The question then becomes which remedy most effectively addresses the particular harm presented. For example, if a defendant fraudulently induces a contract for the sale of land, the buyer plaintiff may wish to keep the land and receive damages or may wish to rescind the
- 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.
- 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.
- Open Chapter
Chapter 9. Special Issues in Equity 52 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.
- In contrast with the statutory mandate of an injunction seen in , a handful of other statutes have been interpreted specifically to prohibit injunctions. In 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 ...remedy for the violation of other rules which governed confidentiality of information...
- 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
- 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.
- For example, in
- Open Chapter
Chapter 10. Breach of Contract Remedies 91 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.
- In contrast with specific performance, an action on the price is a legal remedy that provides a damages award. It is not an equitable decree and does not bind the party
- Parties may alternatively obtain rescission through a court of equity. A claimant typically may seek rescission in equity in order to recover specific or unique property. Assuming that the court grants equitable rescission, the property may be conveyed through a restitutionary remedy such as a constructive trust.
- 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
- 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.
- Open Chapter
Center Title 2 results
Chapter 18. Jury Trials 26 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.
- The right to a jury trial clearly 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 Seventh Amendment and all state constitutions preserve the right to a jury trial in cases at common law only. Courts interpret this to mean that the right to a jury trial 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 U.S. Supreme Court has 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.
- Absent a statutory grant of a right to a jury trial, state and federal constitutions preserve the right to a jury trial in “suits at common law.” The U.S. Supreme Court as well as state courts recognize that the right does not extend to those suits in which only equitable rights exist and equitable remedies are administered. The courts, however, also recognize that the right to a jury trial is not limited to only those cases that raise claims which were cognizable at common law. Instead, this language preserves the right to a jury trial in any proceedings in which legal rights are ascertained.
- Open Chapter
Chapter 3. Preventive Injunctions 49 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.
- In other circumstances, courts generally find the remedy at law to be adequate if the harm can be easily and accurately ascertained in a single action. This is most common when the plaintiff has suffered the entire injury by the time of trial and the condition giving rise to the harm has abated. Thus, in
- 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.
- Most jurisdictions list irreparable harm as a second, separate requirement for coercive relief, but this element is often subsumed in the inadequacy rule. As a general matter, the remedy at law is inadequate precisely because the harm is irreparable and damages do not suffice.
- Open Chapter
Chapter 4. Specific Performance 40 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
- Apart from specific performance, another civil remedy available to parties seeking recovery of specific goods is replevin. The remedy is used to force the conveyance of possession of personal property to a party who can demonstrate superior title over a party in possession. The remedy traces its origins to ancient common law writs but today is principally codified by state statute and in Article 2 of the Uniform Commercial Code. . The inability of the non-breaching buyer to reasonably obtain replacement goods through cover affects entitlement to specific performance and replevin under the Code; however, the remedy of replevin also requires that the
- The U.C.C. provides a framework of approximately equivalent remedies which may be available to non-breaching buyers and sellers to protect their respective interests in contracts for the sale of goods. The counterpart to a buyer’s remedy of specific performance under is called an action for the price under § 2–709 (also see discussion in Chapter 10, ). While specific performance sounds in equity and accordingly is backed by the contempt power of courts, an action on the price is an action at law for damages.
- 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
- Open Chapter
Chapter 17. Limits on Restitutionary Remedies 41 results (showing 5 best matches)
- The claimant bears the burden of establishing the trail of exchanged or transferred property but 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
- 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 constructive trust for a higher dollar amount than the stock’s new value. Similarly, should the stock rise, the beneficiary of a constructive trust should not be deprived of that increase in value.
- The previous Restatement of Restitution rejected all of the tracing fictions and provided a rule of proportionality that allowed the claimant to reach a share of both withdrawals and any funds remaining in an account in the proportion of the misappropriated funds to the whole at the time of withdrawal. . Under the Restatement approach, the sequence or timing of deposits and withdrawals did not dictate the choice of remedy In cases involving “conscious wrongdoing”, the Restatement allowed the claimant an option of a proportionate share both of the remaining funds and the property withdrawn. The rules applied uniformly irrespective of whether the funds were physically commingled, deposited in an existing bank account, or used to pay some premiums upon a life insurance policy. That approach provided partial protection to the wrongdoer by limiting recovery to the proportion that the claimant’s property bore to the wrongdoer’s own property.
- 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.
- Equity limits a claimant’s ability to obtain restitution against particular property by requiring the claimant to identify or “trace” misappropriated property through the transactional sequence into its substituted product. Restatement (Third) of Restitution and Unjust Enrichment (2011) § 58. The tracing rules apply broadly to various equitable restitutionary claims, including constructive trusts, equitable liens or rights of subrogation. The use of tracing to achieve equitable restitution has a long history, originating in suits against trustees and fiduciaries, but also involving cases of fraud, conversion, mistake or breach of contract. Palmer on 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 than a bona fide third party purchaser, including a subsequent transferee.
- Open Chapter
Chapter 16. Unjust Enrichment 55 results (showing 5 best matches)
- 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.
- An equitable lien is a close cousin to the more commonly used constructive trust. The lien may arise from an express agreement between parties that fails to comply with the requirements for common law liens yet may still be enforceable in equity to carry out the express or implied intentions of the parties. The more typical illustration of an equitable lien, though, serves as an alternative restitutionary remedy in situations where a constructive trust may be inappropriate. For example, since a constructive trust provides a conveyance
- 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.
- The remedy from a suit in assumpsit is superior to compensatory damages for conversion in the situation where the defendant resold the property for a price greater than its fair market value. It is also useful in any conversion situation where the statute of limitations has expired on the tort. Assumpsit is considered an action to enforce a quasi-contract, and the statute of limitations for contract is typically longer than for tort.
- 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 assumpsit. Once parties complete performance, the contract price is a liquidated debt.
- Open Chapter
Chapter 6. Preliminary Injunctions and Temporary Restraining Orders 50 results (showing 5 best matches)
- Finally, the limitations on TRO have been strictly applied by the federal courts. It is an extraordinary remedy to enjoin a party when there has been very little opportunity to receive evidence in the matter.
- The focus of this chapter is on the federal rules related to these remedies.
- A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.
- The prevailing view in federal courts is to follow Rule 65(c) closely and require the posting of security, and some authority holds that the failure to post a bond may constitute reversible error. Some courts acknowledge that although the language of the Rule is couched in mandatory terms, they retain discretion to waive posting of security for temporary restraining orders or preliminary injunctions in exceptional circumstances. Illustrative circumstances in which courts have waived the requirement of posting a bond are for indigent plaintiffs, where the injunction does not subject the restrained party to compensable monetary losses, and where the costs to post a bond would effectively prevent enforcement of important rights affecting the public interest. . For example, in the court waived the bond requirement in a civil rights claim on the basis that the movant had a high degree of probability of success on the merits, the City had not submitted any evidence of damages potentially...
- The amount of the bond is generally regarded as a ceiling on the measure of damages potentially recoverable by the restrained party unless the bond was an “open” one or unless security was given without a limitation to recovery. Some courts recognize an exception whereby a claimant may obtain damages in excess of the bond against the plaintiff in “exceptional” cases where the injunction was secured by fraud or malice. The surety always has limited liability.
- Open Chapter
Outline 55 results (showing 5 best matches)
Chapter 11. Tort Damages 80 results (showing 5 best matches)
- 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, restitution, which is discussed in Chapters 16 and 17, seeks 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.
- 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.
- In
- Some courts will limit the cost of repairs to not exceed the diminution in the value of the improvement if it has a separate value, or to the diminution in the value of the entire land if the improvement has no separate value. Thus, if a car runs off the road and crashes into a shed on the plaintiff’s land, the plaintiff receives cost of repair in most jurisdictions, with a cap on the value of the shed itself if it has separate value, such as a prefabricated shed bought at a retail store.
- For example, most courts allow the injured property owner to recover the actual value of destroyed personal consumables such as clothes and household goods. Although a person may own used clothes for business purposes, such as the owner of a second-hand shop, most people own used clothes because they consume them. Used clothes do have a fair market value and that measure could be appropriate in certain instances. For an ordinary consumer, however, an award of fair market value for clothes lost in a house fire would be a hardship. As a practical matter, consumers of goods must replace them rather than simply adjust their balance sheets. Therefore, most jurisdictions permit a “value to the owner” measure for items such as clothes and household goods, with consideration of the age, condition, and cost of replacement or repair as additional factors in calculating the damages awarded.
- Open Chapter
Chapter 14. Damages for Economic Loss or Distress Alone 34 results (showing 5 best matches)
- The economic loss rule also precludes a plaintiff from recovering for purely economic losses in tort when the plaintiff and the defendant have entered into 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.
- The rule usually operates in one of two settings. First, the economic loss rule precludes a person who is a “stranger” to the defendant from recovering damages when the defendant’s tortious act causes damage to the plaintiff’s economic interest rather
- Limits on the availability of damages for mental distress arise from both substantive and remedial law. Substantive law restrictions appear when the plaintiff suffers mental distress in the absence of other injury. In tort claims this issue arises frequently in two situations. First, emotional distress claims arise in “direct” claims when a plaintiff is terrorized by a situation threatening serious injury but none results. Second, emotional distress claims arise when a plaintiff is distressed by witnessing an accident involving a loved one. In contract, a party may suffer distress if a breach is anticipated but does not occur.
- The economic loss rule precludes a plaintiff from recovering purely economic losses in tort. Economic losses include harms such as lost profits, loss in value, reputational harm, and lost wages. A plaintiff may recover damages for economic losses in connection with physical harm to person or property only.
- Courts have recognized exceptions to the economic loss rule in both contract cases and stranger cases. The courts allow for recovery of purely economic loss in limited circumstances. In an Illinois decision, a court recognized three “traditional exceptions: “(1) where the plaintiff sustained damage, i.e., personal injury or property damage, resulting from a sudden or dangerous occurrence; (2) where the plaintiff’s damages are proximately caused by a defendant’s intentional, false representation, i.e., fraud; and (3) where the plaintiff’s damages are proximately caused by a negligent misrepresentation by a defendant in the business of supplying information for the guidance of others in their business transactions.”
- Open Chapter
Chapter 19. Attorneys’ Fees 39 results (showing 5 best matches)
- 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.
- The second provision provides for a mandatory assessment of fees in a non-tort civil action unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
- An award of attorneys’ fees under
- The Supreme Court explained these standards further in
- The Supreme Court treats the lodestar figure as presumptively reasonable, subject to adjustment only in rare or exceptional circumstances. Applicants seeking to depart from the lodestar bear a heavy burden to show why an adjustment is necessary. For example, in
- Open Chapter
Chapter 8. Structural, Restorative, and Prophylactic Injunctions 22 results (showing 5 best matches)
- Despite this push-back, structural injunctions remain a valid tool for curbing unconstitutional prison conditions. Indeed, 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.
- 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 Supreme Court and other 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 and the State 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 three modern types of injunctions share these requirements but differ in their forms and functions.
- The Chief’s observations proved prescient. The Court retained continuing jurisdiction over the case for more than a decade before finally finding the State in compliance. Along the way, the Court unanimously held the legislature in contempt and imposed a $100,000-per-day contempt sanction. Three justices faced challenges in judicial elections as a result of the Court’s handling of the case. The children of the named plaintiffs were in elementary school when the plaintiffs filed the case. By the time the case concluded, the children were in college.
- Open Chapter
Index 32 results (showing 5 best matches)
Chapter 13. Limitations on Compensatory Damages 51 results (showing 5 best matches)
- The Uniform Commercial Code maintains a policy of liberally applying remedies, and therefore rejects the view that “damages must be calculable with mathematical accuracy.” . Instead, the U.C.C. embraces a flexible approach where compensatory damages need only be proven in whatever manner is reasonable under the circumstances. . Also, the Code incorporates by reference the common law doctrinal guidance of proving damages by a reasonableness standard.
- Foreseeability is a limitation on all compensatory damages, both in contract and in tort. The doctrine of foreseeability operates as a limiting principle on entitlement and measurement of damages. Although substantive law distinctions affect the specific application of foreseeability, the principle developed to shield a wrongdoer in tort or a breaching party in contract from accountability for excessive, remote, or speculative losses. The requirement of foreseeability in contract reflects a policy of fairness in that a party will be held accountable only for those bargained-for risks of non-performance that should have been reasonably contemplated and assumed at the time of making the agreement. In tort, the doctrine of foreseeability cabins liability in the first instance to the range of harms reasonably contemplated by the actor and also functions to limit the range of damages, if liability is established.
- The doctrine of foreseeability also plays a significant role in tort law, although in a different fashion than in contract law. In torts, foreseeability initially functions in defining the nature and extent of the duty owed in ascertaining negligence. The assessment of foreseeability requires a hindsight analysis of whether the alleged tortfeasor should have reasonably anticipated the type of harm that would result from their actions at the time of the injury. Accordingly, it is a hypothetical construct because it asks the objective question of what a
- The concept of what constitutes a reasonable substitute may present particular problems in the context of employment contracts. In the famous case,
- The collateral source rule has drawn considerable criticism in recent years, principally on the grounds that it could lead to a double recovery or a windfall to the injured party. If so, the rule undermines the principle of just compensation associated with the goal of placing the injured party in the same position held prior to the harm.
- Open Chapter
Chapter 7. Contempt 49 results (showing 5 best matches)
- The significance of contempt becomes particularly relevant in equitable proceedings because the court must act in both a lawgiver capacity and a quasi-law enforcement capacity. A decree in equity, such as an order to pay child support or an injunction mandating disclosure of documents, binds the party affected
- A court may exercise its discretion in limited circumstances to issue a summary or direct contempt sanction in order to maintain proper decorum in the courtroom. Summary contempt serves to punish conduct that occurs in the presence of the court. Judges are generally hesitant to wield this power because it consolidates all the traditional functions of judge, jury, and prosecutor and reposes them in a single person. A summary contempt order also departs from the traditional safeguards of notice and a hearing common to criminal proceedings. Therefore, the use of this power is generally reserved for “exceptional circumstances” that significantly interfere with the ability of the court to conduct proceedings in an orderly manner. . The Supreme Court has expressly cautioned against holding attorneys in contempt for vigorously advocating for their clients unless such advocacy actually obstructs the performance of the court’s duties.
- The Supreme Court established this durability principle as an alternative ground to its holding in . The issue in that case was whether a union could strike against the employer when the United States took over operation of the coal mines pursuant to its emergency powers during World War II. The United States sought an injunction against the strike to keep the mines operating, but the union argued that an act of Congress prohibited federal courts from enjoining labor strikes. The United States countered that it was not subject to that provision of the law. The federal district court issued an injunction forbidding a strike by the union while the court considered the applicability of the statute at issue. The union struck in violation of the order and was held in criminal contempt. The Supreme Court found in favor of the United States on the argument over applicability of the statute, but held as an alternative ground that the union could be punished criminally for violating the...
- One key aspect of coercive civil contempt is that the contemnor has the capacity to end the on-going sanction by compliance with the order. In contrast, if the court has ordered a determinant penalty, such as a specified number of days in jail or a fixed fine, the contempt is criminal, not civil, because the contemnor no longer has any control over the penalty.
- Criminal contempt is a separate offense, independent from the underlying case that produced the contempt order. Therefore, the contempt order survives without regard to the success of the underlying case that resulted in the contempt. Consider, for example, that a court orders a departing employee not to use a customer list taken from the former employer. The ex-employee violates the order and is held in criminal contempt. Later in the case the court rules that the employer does not have a protectable interest in the customer list and therefore the ex-employee wins the case. The finding of criminal contempt still stands because it was imposed to vindicate the court’s authority and ensure respect for the integrity of judicial orders.
- Open Chapter
Chapter 15. Punitive Damages 41 results (showing 5 best matches)
- Although a plaintiff must establish liability to recover punitive damages, a plaintiff need not establish actual damages to recover punitive damages. In a majority of jurisdictions, a plaintiff need not recover compensatory damages to recover punitive damages. Rather, even an award of nominal damages will suffice to sustain an award for punitive damages. In contrast, equitable relief generally will not support an award of punitive damages. With the merger of law and equity, however, some courts recognize such damages in appropriate cases.
- Some other jurisdictions have enacted “extraction statutes” that require some portion of a punitive recovery be directed to the state. In one particularly unusual setting, the Ohio Supreme Court adopted an extraction requirement as a matter of common law. In
- The Supreme Court held in
- Subsequently, in
- A growing trend recognizes an exception to the general rule to allow punitive damages predicated upon the bad faith conduct of insurance companies with respect to policy coverage or claims. These cases draw upon the public interest considerations that were expressed in an early line of cases that allowed punitive damages against common carriers and fiduciaries in limited situations. Courts consider the special relationship between insurer and insured, the unequal bargaining power of the parties, and the adhesive nature of the insurance contract as public policy reasons to support punitive damages. A handful of courts also have found similar justifications to allow employees to recover punitive damages for an employer’s breach of the covenant of good faith and fair dealing implied in an employment contract.
- Open Chapter
Chapter 12. Adjustments to Damages 18 results (showing 5 best matches)
- Compensatory damages that replace future losses, such as diminished earning capacity in a personal injury action, typically are awarded in a lump sum. The first step in calculating an award for lost earnings involves estimating the projected lost stream of income over the work life expectancy of the injured party. The lost income stream ordinarily is measured by after-tax dollars, and the discount rate represents the after-tax rate of return to the injured worker.
- The calculation of future damages and adjustments to approximate interest rates and inflation necessarily present significant challenges to the parties, courts, and juries. The resulting award often may prove to be significantly higher or lower than the expert predictions in light of subsequent
- Instances where liability itself or the amount of the claim are very uncertain often may be less likely to justify a prejudgment interest award. Otherwise, the defendant may be placed in a dilemma of either being forced to pay a legitimately disputed claim or having to pay interest on the claim after judgment is rendered. As a result, courts historically espoused the notion that “liquidated” claims were proper subjects for prejudgment interest, while those which
- Two principal issues exist with respect to prejudgment interest: entitlement and measurement. Various state and federal statutes include prejudgment interest as an allowable item of compensatory damages arising from violation of the statute. In those instances, the court often retains discretion as to whether interest should be given and to what extent. Similarly, parties have contractual
- The prejudgment interest component of damages compensates the prevailing party in a lawsuit for the loss of use of the money that will later be awarded at judgment.
- Open Chapter
- Publication Date: March 29th, 2021
- ISBN: 9781647082208
- Subject: Remedies
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell explores the basic rules which inform legal and equitable remedies, restitution at law and equity, declaratory relief, jury trial, and attorneys’ fees. Additionally, the Nutshell examines the principal defenses and limitations on those remedies and the means by which equitable orders are enforced, such as through civil and criminal contempt. The discussion of equitable remedies includes both temporary restraining orders and permanent injunctions, along with specific performance of contractual obligations. Coverage includes the nature and measurement of compensatory damages for breach of contract, harm to real and personal property, and personal injuries. Further, the Nutshell discusses entitlement and measurement of punitive damages and the substantive and procedural constitutional due process limitations on those awards. Modern developments in the law are addressed, such as recent jurisprudence involving nationwide or universal injunctions and the limits on recovery for emotional distress and economic loss.