Chapter Nine. Damages 465 results (showing 5 best matches)
- 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 illuminate the way the principles apply in other contract contexts, such as employment and construction.
- Contracts may specify (or liquidate) an amount of damages, either as a fixed amount or by a formula. Liquidated damage clauses are not treated as substitute remedies: they do not reject the principles governing calculation of damages, but simply attempt to perform the calculation in advance.
- 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.
- Inconvenience or Nonfeasibility of Other Remedies.
- 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.
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Chapter Four. Preventive Injunctions 100 results (showing 5 best matches)
- It is axiomatic that remedies are derived from the same source as substantive rights. When a right derives from the common law, 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.
- The common law factors may be replaced by a statutory mandate that alters the traditional discretion of the trial court. In some circumstances, a legislature may choose to require an injunction without regard to the judge’s evaluation of the equities of the case. In such cases, the legislature has predetermined the equities that govern the case. This section first examines the general principles of remedies that govern statutory claims, and then examines situations in which statutory remedies constrain equitable discretion.
- When 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 are 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 an inquiry into 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 are excluded.
- Title II of the Civil Rights Act of 1964 provides an interesting example of limited remedies where none other is implied. That Act prohibited discrimination on the basis of race in places of public accommodation. Effective in 1965, the Act preempted the “Jim Crow” laws that required racial segregation in some states. The federal statute provided that a court may remedy violations of Title II with injunctive relief and attorney’s fees. Damages were not available and courts have not implied a damages remedy under Title II.
- It is often suggested that injunctive relief is the “usual” remedy in nuisance cases. This rule is often followed when 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 regarded as great and irreparable, so courts grant injunctive relief as a matter of course.
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Chapter One. Overview 17 results (showing 5 best matches)
- 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.
- Declaratory Remedies.
- 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.
- Legal Versus Equitable Remedies.
- Preliminary Versus Permanent Remedies.
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Chapter Two. Equity and Equitable Remedies 91 results (showing 5 best matches)
- As equity developed into a separate court system, it existed side-by-side with the King’s Courts. As a result, if a plaintiff wished to obtain a “legal remedy,” he was required to obtain a writ which would be taken to a court of law, and was governed and resolved under traditional legal principles. By contrast, if plaintiff sought an “equitable remedy,” he was required to file suit in a court of equity. The two court systems functioned by very different rules and frequently adjudicated quite different issues. For example, if plaintiff sought damages for breach of contract, the case would have been filed in a court of law. Since plaintiff sought only damages, a court of equity would refuse to hear the case because plaintiff had an adequate remedy at law. By contrast, if plaintiff sought specific performance, rather than damages, the case would have been brought in a court of equity since the law courts did not grant specific performance.
- Equitable Remedies Continue to Be Based on Principles of “Conscience” and “Equity”
- Of course, the description of equitable remedies as being based on “conscience” is somewhat misleading. Courts of law have their own “rules of conscience” even though they do not label them as such. For example, we know that an ancient court of equity might have refused to specifically enforce a contract when the plaintiff’s hands were unclean. A modern court, applying what might be regarded as “legal principles” might refuse to enforce a contract as being in contravention of “public policy.”
- Courts continue to deny equitable relief except when plaintiff’s legal remedy is inadequate. This principle is also known as the “irreparable harm” requirement. The classic example of an “adequate legal remedy” involves items that are readily purchasable on the open market. For example, in , plaintiff agreed to purchase a Chevrolet automobile from a car dealership, but the dealer breached and refused to sell him the car. When plaintiff sued seeking specific performance, the Court refused to grant the remedy on the basis that Chevrolet automobiles are freely available on the open market. As a result, if plaintiff were awarded damages (calculated by determining the difference between the contract price and the fair market price of the automobile), he could purchase a comparable Chevrolet on the open market. In justifying the denial, the Court stated that a court of equity will not “specifically enforce a contract for the sale of ordinary articles of commerce, which can at all times be...
- In applying equitable remedies, modern courts continue to assume that equitable relief should be governed by principles of “conscience,” “equity,” and “justice.” However, unlike the early English kings and chancellors, modern judges are not as much “at large” in dispensing equity and justice. Over the centuries, a large body of maxims have been developed, as well as equitable precedent, all of which tends to limit (to a greater or lesser extent) judicial discretion.
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Title Page 3 results
Preface 5 results
- The course also focuses on the array of remedies that a court can invoke on behalf of 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.
- 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 it examines the ancient distinctions between “law” and “equity” that 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, have vitality and force today.
- In this book, we examine many different types of remedies. In addition to the damage remedies, which you may have first encountered in your first-year courses in contracts, torts and property, we also examine injunctive remedies and the prerogative writs. 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.
- A significant portion of the book focuses on damage remedies. Many of these remedies are “substitutionary” in nature because they provide plaintiffs with a monetary substitute for their 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.
- We give thanks to the many people who assisted us in the creation and revision of this book, including our research assistants and secretaries. Last, but not least, we are thankful to our spouses and children who supported us through the various stages of this project.
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Chapter Three. Contempt 94 results (showing 5 best matches)
- 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.
- 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 is entitled to pursue this remedy as a part of the underlying equitable remedy, such as a specific performance order. The exception to this rule is
- Although the Court found in favor of the plaintiff on the “employer” issue, it held 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 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.
- , a bona fide purchaser of a company who acquired it with knowledge that an order to remedy an unfair labor practice had not been fulfilled may be considered in privity with its predecessor for purposes of
- People who are bound by a court order must either obey the order or seek its dissolution through proper judicial channels. It is not permissible to wait until a contempt hearing to initially challenge a court order. The Court established this principle in its famous opinion in
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Chapter Six. Injunctions in Context 98 results (showing 5 best matches)
- In addition, the Court has placed limits on the availability of structural remedies. For example, in , respondents, black citizens who had been advocating for equality in employment, housing, education, and participation in governmental decisionmaking, began an economic boycott of local merchants opposed to equality. Respondents claimed that the county magistrate and judge had singled them out for harsh treatment because of the advocacy and the boycott. Specifically, respondents alleged that the judge and magistrate discriminated by setting higher bond requirements and jury fees in criminal cases, and by imposing higher criminal sentences. The Court concluded that respondents were not entitled to injunctive relief, placing particular emphasis on the fact that none of the respondents could satisfy the Article III case or controversy requirement. The Court concluded that those who had been subjected to the alleged practices in the past could not show a case or controversy because “...
- , the federal courts entered structural injunctions in a variety of cases. Some of these cases involved sweeping orders. , represents the remedy’s zenith. In students and thereby create “desegregative attractiveness.” To this end, the Court allowed district officials to “dream” about how to improve their system, and the court granted their dream by ordering the state to spend vast sums of money on the district. These sums included $220 million on quality education programs, $448 million on magnet schools, $260 million on capital improvements, and nearly $448 million on magnet schools. Although the U.S. Supreme Court initially upheld aspects of the trial court’s order, the court ultimately held that the trial court had exceeded its authority in focusing on the principle of desegregative attractiveness, as well as in requiring the state to finance the program of attractiveness.
- 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.
- The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.
- Similar principles apply to personal property located in other states. In other words, a court might decline a request to enjoin or take control of property located in another state for a variety of reasons. Since the property is not situated within the court’s jurisdictional boundaries, the order might be difficult to enforce, and therefore there is a significant risk that the decree will be futile.
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Chapter Seven. Restitution 89 results (showing 5 best matches)
- An additional advantage of special restitutionary remedies is that they can be used to circumvent debtor exemptions. Each state provides debtors with certain “exemptions” that allow them to protect assets against creditors. Special restitutionary remedies allow creditors to circumvent the exemptions and assert a claim against the property that is the subject of the exemptions.
- The principle that a person who innocently has acquired the title to property for which he has paid value is under no duty to restore it to one who would be entitled to reclaim it if he had not been innocent or had not paid value therefor, is of wide application, being a limitation upon the principle that a person who has been wrongfully deprived of his property is entitled to restitution.
- 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 unjust enrichment “must result from the receipt of the particular property upon which the lien is imposed.”
- Restatement of Restitution
- Today, quasi-contract applies in many different contexts. For example, when a motorist is rendered unconscious and receives emergency medical assistance at a hospital, the hospital can hold the motorist liable for the value of the services rendered. Even though there was no express contract between the hospital and the motorist (because the motorist was unconscious and unable to enter into a contract), and there was no implied contract (because the unconsciousness precluded the implication of an intent to agree), principles of restitution—preventing unjust enrichment—provide the basis for the motorist’s obligation to pay the hospital for the value of the emergency services.
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Chapter Eight. Declaratory Judgments 31 results (showing 5 best matches)
- The remedy of declaratory judgment is a statutory creation 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 and not governed by common law doctrine. It first appeared early in the twentieth century as a response to the fact that the common law did not have the capacity to clarify the rights of the parties before the occurrence of an actual loss or of a greater loss than has already happened.
- The declaratory judgment has a wide range of uses. Illustrated below are some of the most common functions of this remedy as well as some more novel ones. What all of these situations have in common is the need for the resolution of a dispute at an early stage of disagreement.
- The declaratory judgment remedy does not create new rights, but simply offers a different type of remedy which is used 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 alleged infringer faces potential treble damages and attorney fees for willfully infringing the patent. If the threat of liability is “sufficiently immediate,” rather than run the risk of having to pay damages, a party can seek a declaratory judgment to resolve the rights of the parties. . The parties can then structure their actions so as to avoid future liability. Of course, declaratory relief is only available when there is an “immediacy” to a dispute because courts do not issue advisory opinions.
- 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 is reviewable as a final judgment and has
- Most states have adopted the Uniform Declaratory Judgment Act [UDJA] to permit state courts to make declaratory judgments. The Act’s purpose is similar to that of its federal counterpart. State legislators adopted the act in order to provide the state courts with a remedy that can resolve disputes efficiently and quickly through a declaration of rights.
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Chapter Five. Temporary Injunctive Relief 70 results (showing 5 best matches)
- Even though courts often state that the purpose of temporary relief is to maintain the , 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.”
- Questions regarding the availability of “prevailing party” attorney’s fees for preliminary injunctions underscores the inherent tension in this area of remedies law. Because this relief is awarded on a showing that is less than required by a full trial on the merits, it is not a true adjudication of the dispute. The standards for the award nonetheless permit the parties to make a more informed guesses about the ultimate outcome of the case and therefore the decision to grant or withhold the temporary relief often brings about a final disposition of the case by agreement of the parties.
- The principal concern underlying any temporary relief is that immediate and irreparable harm may occur before the dispute between the parties can be resolved at a full trial on the merits. An 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 (who hold liens on the property), or to preserve property that will be the subject of the subsequent trial.
- The threshold requires that a “serious question” must be presented. The threshold for irreparability is that there must be 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 usually be adequate. The “single continuum” does not extend that far.
- 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 regarding the enforceability of noncompetition agreements. The act said that they “are enforceable” when they meet certain enumerated standards, not including irreparable harm. (describing split). The issue is whether courts should require irreparable harm for temporary relief when it is not required for permanent relief in the context of noncompetition agreements covered by the statute.
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Index 69 results (showing 5 best matches)
Table of Contents 44 results (showing 5 best matches)
- 3.Equitable Remedies Continue to Be Based onPrinciples of “Conscience” and “Equity”
- 1.Inadequacy of the Remedy at Law
- Equity and Equitable Remedies
- 1.Equitable Relief Was Unavailable Except When Plaintiff’s Legal Remedy Was Inadequate
- 1.Equitable Relief Continues to Be Available OnlyWhen Plaintiff’s Legal Remedy Is Inadequate
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Summary of Contents 14 results (showing 5 best matches)
West Academic Publishing’s Emeritus Advisory Board 14 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Dean and Joseph L. Rauh, Jr. Chair of Public Interest Law University of the District of Columbia David A. Clarke School of Law
- Late Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law and Dean Emeritus University of California, Berkeley
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Table of Cases 28 results (showing 5 best matches)
Copyright Page 2 results
- 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
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- Publication Date: February 8th, 2022
- ISBN: 9781647084080
- 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.