Short Summery of Everything

8/2/2019 Short Summery of Everything

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1. "Cover"

Formula

Represented by the formula: [amounts

toward the purchase price paid to seller] +

[cover price - contract price] + [incidental

and consequential damages] - [expenses

saved].

2. "Rightful

Position"

Standard

Standard that instructs us to choose the

remedy that puts the plaintiff (or keeps the

plaintiff) in the position that she would have

been in but-for the defendant's wrong.

3. American

Rule for Attys

Fees

In the absence of a provision in a contract or

as provided by statute, each side to a lawsuit

bears its own attorney's fees.

4. Burden on the

Court

In denying the injunction, a court can

consider not only how burdensome an

injunction might be on the courts, but also

on how important the social policy is that

the injunction seeks to further.

5. Civil CoerciveContempt

This is the power of the court to impose finespayable to the state or jail time to coerce the

defendant's compliance with the court's

order; the contemnor has "the keys to the

jailhouse door in his pocket."

6. Civil

Compensatory

Contempt

This is the power of the court to award

damages to the plaintiff for the defendant's

failure to comply with the court's order.

7. Collateral

Source Rule

Insurance and certain government benefit

payments that are wholly independent of the

tortfeasor do not get deducted from the

plaintiff's award of damages.

8. Compensatory

Damages

To make satisfactory payment or reparation

to; recompense or reimburse; oriented

toward plaintiffs' losses (unlike restitution,

which is oriented towards defendants'

gains), and they require a payment that is

"satisfactory" to repair the loss suffered by

the plaintiff.

9. Consent

Decree

Court orders crafted by the parties that, like

regular injunctions, are backed up by the

power of contempt.

10. Consequential

Damages

Any loss resulting from general or particular

requirements and needs of which the seller

at the time of contracting had reason to

know and which could not reasonably be

prevented by cover or otherwise.

11. Consequential

Damages

"Losses suffered by the victim of a breach

going beyond the mere loss in value of the

promised performance (direct damages), and

resulting from the impact of the breach on

the other transactions or endeavors

dependent on the contract."

12. Constructive

Trust

An equitable restitutionary remedy that in

some circumstances (1) gives plaintiff seeking

restitution a preference in bankruptcy; (2)

allows plaintiffs to "trace" defendant's gains

from plaintiff's misappropriated item into an

item purchased by defendant that has

appreciated in value; or (3) allows plaintiffs to"trace" plaintiff's item from defendant to a

third person; because it is expressed in a

percentage of traced assets, it is a good choice

for assets appreciating in value.

13. Cover The buyer makes a good faith purchase of

substitute goods without reasonable delays;

she is entitled to the difference between the

price of replacement goods and the contract

price, together with incidental and

consequential damages, less expenses saved

as a consequence of seller's breach.

14. Criminal

Contempt

This is the power of the court to punish a

defendant's willful failure to comply with the

court's order.

15. Damages "Money claimed by, or ordered to be paid to, a

person as compensation for loss or injury."

16. Damages An amount of money awarded to a wronged

party from the party that committed the wrong

to compensate for that wrong

17. Direct

Damages

"Losses incurred by the victim of a breach in

acquiring the equivalent of the performance

promised under the contract, so as to substitute

for the performance that should have beenrendered by the breacher."

18. Economic

Loss Rule

A plaintiff cannot recover for lost wages or

other financial kinds of injury caused by a

defendant's tortious conduct in the absence of

physical impact resulting in personal injury or

property damage.

19. Efficient

Breach

The theory that a party should break a contract

if it makes the breaching party better off even

after compensating the non-breaching party

with expectancy damages.

20. Egg-shellPlaintiff

Rule

When it comes to tort damages, a plaintiff canrecover all of his damages, even if the extent of

his harm was unforeseeable.

21. Ejectment A form of specific restitution for real property,

paralleling replevin's remedy for personal

property.

DeLong Remedies 2010Study online at quizlet.com/_1bs07


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22. Equitable

Liens

A charge against property that makes the

property stand as security for a debt owed;

entitles the creditor, at a proper time, to have

the property sold and the proceeds used for

payment of the debt; because it is expressed in

dollar amounts, it is a good choice for

declining assets.

23. Execution Having sheriffs seize some of the defendant's

personal property and then sell it to satisfy the

judgment.

24. Expectancy

Damages

Damages awarded in contract actions; the

difference between what was promised and

what was received; goal is to put you in the

same position as if breaching party had

performed.

25. Expectant

Damages

Type of direct damages that place the party in

the position as if the breached contract had

been performed. Gives the non-breaching

party the benefit of the bargain.

26. FRCP 65(d) No Restraining order or preliminary

injunction shall issue except upon the giving

of security by the applicant, in such sum as

the court deems proper, for the payment of

such costs and damages as may be incurred or

suffered by any party who is found to have

been wrongfully enjoined or restrained.

27. Freedom of

Speech

Guaranteed

by the First

Amendment

The court may deny an injunction if it would

be an unconstitutional restraint on this.

28. Garnishment An independent action against a third party

who owes money to the judgment debtor.

29. Grounds for

Modifying an

Injunction

(a) When changed factual conditions have

made compliance with the decree

substantially more onerous; (b) When a

decree proves to be unworkable because of

unforeseen obstacles; (c) When enforcement

of the decree without modification would be

detrimental to the public interest; (d) When

the statutory or decisional law has changed to

make legal what the decree was designed to

prevent; (e) If the parties had based theiragreement on a misunderstanding of the

governing law

30. Incidental

Damages

Expenses reasonably incurred in inspection,

receipt, transportation and care and custody

of goods rightfully rejected, any commercially

reasonable charges, expenses or commissions

in connection with effecting cover and any

other reasonable expenses incident to the

delay or other breach.

31. Incidental

Damages

Costs and expenses incurred by the victim

of a breach in attempting to deal with i t

and in taking action to seek a substitute

transaction or to curtail losses.

32. Indemnification The action of compensating for loss or

damage sustained

33. Injunction

Bonds

Requires the plaintiff to pay the defendant

for damages that accrue during the periodbetween the granting of the preliminary

injunction and final judgment if the court

determines at final judgment that

injunctive relief is not warranted; Likely to

discourage plaintiffs from seeking

preliminary injunctions, especially in

cases where the plaintiff's case appears to

be weak or where the defendant's damages

between the request for a preliminary

injunction and final judgment are

expected to be large.

34. Injunctions A court order to a defendant to do or not todo something in relation to the plaintiff.

Sometimes this category is referred to as

"equity" because the class of remedy was

issued by courts of equity (as opposed to

courts of law).

35. Irreparable

Injury

A "legal" remedy, such as damages, is not

as good a remedy for plaintiff as an

injunction.

36. Liquidated

Damages

An amount contractually stipulated as a

reasonable estimation of actual damages

to be recovered by one party if the other

party breaches.

37. Loss of

Consortium

Claims

Claims compensate the surviving family

member for the emotional distress that

results from the death or injury of a loved

one.

38. Lost Volume

Seller

This measure puts the seller in the rightful

position - had the sale gone thru, the

seller would have realized a profit, and

with the breach, the damages give the

seller this "lost" profit, after

paying incurred costs; not every seller

qualifies, according to one test, a non-breaching party claiming to be a this kind

of seller must establish three factors: (1)

that it possessed the capacity to make an

additional sale, (2) that it would have

been profitable for it to make an additional

sale, and (3) that it probably would have

made an additional sale absent the

buyer's breach.


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39. Lowest

Intermediate

Balance

In constructive trust law tracing, this rule

states that the plaintiff can never trace more

than that which originated from the lowest

immediate balance in the bank account.

40. Mandatory

Injunction

An order of court compelling the performance

of a specifies act.

41. Market

DamageFormula

Represented by the formula: [amounts toward

the purchase price paid to seller] + [marketprice at the place of tender - contract price] +

[incidental and consequential damages] -

[expenses saved].

42. Market

Damages

The buyer can recover the difference between

the market price at the time when the buyer

learned of the breach and the contract price,

together with incidental and consequential

damages less expenses saved.

43. Mitigation Plaintiffs must take reasonable steps to avoid

further loss post-breach; this helps

defendants minimize the amount of damages

they must pay, and when it is misunderstood

or misapplied by plaintiffs, it can lead to

damage awards that leave plaintiffs in a

position below the rightful position.

44. Mootness

Problem

When a defendant has engaged in certain

injurious conduct in the past but have since

ceased and stated that she won't engage in

the conduct anymore.

45. Nominal

Damages

In cases such as trespass, where there is no

actual damage, a plaintiff might sue to obtain

this kind of damages--a trivial sum of

damages (such as $1) awarded by a court inlieu of actual damages.

46. Noneconomic

Damages

Damages plaintiffs may claim for items with

no functioning economic market, such as

pain, suffering, and emotional distress.

47. Offsetting

Benefits

Expenses saved on account of the breach.

48. Perfect

Hindsight

In constructive trust law tracing, this lets the

plaintiff engage in whatever fictions yield the

best result for her.

49. Personal

ServiceContracts

These cannot be specifically enforced because

" to do so runs afoul with the ThirteenthAmendment's prohibition on involuntary

servitude."

50. Posner's

Hardship

Balancing

Formula

A court calculates the expected loss each side

would face if the court erred, by multiplying

the likelihood of each party's success by the

extent of loss the party would face if the court

guessed wrong at the preliminary injunction

stage.

51. Postjudgment

Interest

Interest on the judgment measured from time

of judgment until the time the debtor pays.

52. Prejudgment

Interest

Interest on the judgment measured from

time of wrong until the time of judgment.

53. Preliminary

Injunction

Considerations

The court is going to be most concerned

about the plaintiff's likelihood of success on

the merits (propensity, irreparable injury,

other policy considerations), the risk of

error, and the public interest.

54. PreliminaryRelief

Some court order before final judgment thatcan aid the plaintiff.

55. Preventative

Injunction

Order preventing future harm.

56. Prohibitive

Injunction

An order of court barring a specific action.

57. Propensity The defendant is likely to engage in the

conduct that plaintiff seeks to enjoin.

58. Prophylactic

injunctions

Protect the plaintiff's rightful position.

59. Proximate

Cause

Functions like a limitation on damages;

holds certain acts as too remote or not a

substantial factor in causing plaintiff's

harm as to act as a rule that limits damages

and one that does so on policy grounds.

60. Punitive

Damages

"Damages awarded, not to compensate the

plaintiff for established loss, but to punish

the defendant and to make an example of

him."

61. Purpose of a

Preliminary

Injunction

To preserve the relative positions of the

parties until a trial on the merits can be

held.

62. Quantum

Meruit

"""As much as deserved"" - the term used to

denote the market value of services."

63. Quantum

Valebant

"""As much as they are worth"" - the term

used to denote the market value of goods."

64. Reformation A judicial rewriting of the parties' contract.

65. Reliance

Damages

Those costs and expenses incurred in

reliance on the contract or promise and

wasted once the contract or promise is

breached.

66. Remedy "Any right, privilege, or power that a party

has because an obligor breached a duty

owed to that party or to avoid the legal effect

of a transaction on other equitable

grounds."

67. Remittitur Gives the plaintiff the option of either

taking the lower amount chosen by the

judge or having a new trial on the issue of

damages.

68. Reparative

Injunction

Order preventing the future bad effects of

past harm.


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69. Replevin Specific restitution for the return of

plaintiff's personal property; requires

defendant to return to the plaintiff the very

thing that was lost and pay any additional

damages for loss of use during the time that

plaintiff was deprived of possession.

70. Requirements

for Injunctions

Propensity & Irreparable Injury

71. Rescission The cancellation of a contract.

72. Rescission A remedy giving a plaintiff the right to

cancel a contract, and it is often followed

by a restitution whereby each side returns

the consideration it has received under the

contract.

73. Restitution Money awarded to a wronged party from

the party that committed the wrong

measured by the gain to the party that

committed the wrong, and not by the loss

to the wronged party.

74. Restitutionary

Damages

Damages awarded to a party for the value

of property that has been unjustly taken or

unjustly retained.

75. Right to a Jury

Trial

A court may deny an injunction if the claim

for specific performance interferes with this

right of a defendant to a trial.

76. Ripeness

Problem

There is insufficient evidence that

defendant will engage in the prohibited

conduct to justify issuing an injunction.

77. Specific Relief To give the plaintiff back the very thing that

was taken, or prevent threatened harm to

the plaintiff from occurring.

78. Stay An order by an appellate court suspending

the implementation of a lower court order

or judgment.

79. Structural

Injunctions

The series of injunctions necessary to

restructure government institutions (in civil

rights litigation).

80. Subrogation "The substitution of one party for another

whose debt the party pays, entitling the

paying party to rights, remedies, or

securities that would otherwise belong to

the debtor. Think GAIN FOR PAIN CORP"

81. Subrogation A remedy that prevents a defendant from

being unjustly enriched when the plaintiff

pays a sum to a third party to settle a

liability or debt owed to that third party by

the defendant.

82. Substitutionary

Relief

Money substitutes for the thing that has

been lost or damaged.

83. Survival

Action

Claim decedent has at moment of tort and then

passes to her heirs. It is the decedent's claim for

lost wages, injury, etc. until her moment of

death, then it is passed on to her estate. This

claim does not cover future earnings of the

decedent.

84. Temporary

Restraining

Orders

Typically not appealabe, these orders may be

granted without written or oral notice to the

adverse party or that party's attorney only if (1)

it clearly appears from specific facts show by

affidavit or by the verified complaint that

immediate or irreparable injury, loss, or

damage will result to the applicant before the

adverse party or that party's attorney can be

heard in opposition, and (2) the applicant's

attorney certifies to the court in writing the

efforts, if any, which have been made to give the

notice and the reasons supporting the claim

that notice should not be required.

85. The

"Hadley"

Rule

(Shaft!)

Divides the world of contract damages into

those that are "natural," for which the plaintiff

may recover, and those that are

"consequential, " for which plaintiff may recover

only if the damages are sufficiently

"foreseeable."

86. The

Collateral

Bar Rule

One who disobeys an injunctive order that is

later reversed on appeal for error may be held in

criminal contempt for the disobedience in spite

of the reversal; the appropriate course of action

suggested by the rule is a direct appeal of the

order granting the injunction.

87. UncleanHands

An equitable defense in which the defendantclaims that plaintiff's bad conduct should bar

plaintiff from obtaining equitable relief such as

an injunction.

88. Undue

Hardship

to the

Defendant

Denying an injunction because imposition of

an equitable remedy must not itself work an

inequity; the specific performance would result

in this.

89. Wrongful

Death

Statute

Action

Made by dependents of decedent for

support/inheritance that would have occurred

but for death of decedent. Calculate earnings

less consumption expenses; residue goes to

dependents. This action does cover future

earnings of decedent by way of support.

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Short Summery of Everything