Remedies Outline

I. Chapter 1: Introduction
A. Introduction
Ÿ concerned with the principles and rules governing the form and type of relief
B. Types of Remedies
1. Function of Remedies
a. Damages
(1) Compensatory Damages
o award of $ to compensate for loss or injury
o substitutionary – money for harm
o tort cases: make the plaintiff whole
o contract cases: compensate for loss & protect the plaintiff’s expectation interest (what the plaintiff would have received if the contract had been performed)
(2) Nominal Damages
o where plaintiff’s right has been violated, but no loss is sustained or the extent of the injury cannot be measured
(3) Punitive Damages
o punish the defendant for willful, wanton, or malicious conduct and to deter others
b. Restitution
§ restores to the plaintiff any benefit the wrongdoer may have gained from the misconduct
§ disgorge any unjust gain or enrichment
(1) Substitutionary Remedies
o provide the plaintiff with a monetary recovery measured by the unjust gin, rather than with the precise thing wrongfully obtained by the defendant
(2) Specific Remedies in restitution
o recovery of the precise thing wrongfully obtained by the defendant
c. Specific relief
§ gives to the injured party the precise performance promised rather than its equivalent in money
d. Preventive relief
§ protection of the plaintiff’s rights by a decree prohibiting the defendant from doing certain acts or engaging in particular activities infringing on the plaintiff’s interests
e. Declaratory relief
§ conclusively determines the rights of parties involved in a contested issue
§ settles the controversy without awarding any additional relief
2. Historical Origins of Remedies
a. Legal Remedies
§ largely substitutionary and result in judgments for $ to compensate
b. Equitable Remedies
§ generally specific and impose personal obligations or duties on the defendant
§ decree is ordinarily enforced by coercing appropriate conduct from the defendant
c. Limitation
§ choice of remedies is subject to basic limitation that equitable remedies are appropriate only where legal remedies are not adequate or are non-existent
3. Imprecise Classification – Consequences
a. Interpretation of statutes
§ damages – an award of $ recoverable in an action at law
b. Interpretation of insurance contract – environmental litigation
§ Polluters who have been ordered to remedy, prevent, or remove hazardous waste sites have looked to their insurance carriers for indemnification for these expenses
§ Insurers assert that they are required by contract to indemnify for only legal damagers – that costs incurred un obeying clean up orders are equitable and restitutionary
§ Decisions divided on issue of whether the policy language provide coverage to the polluters
o Majority – it does
o Minority – no coverage, leaving polluters to pay the costs if they can afford them

II. Chapter 2: Damages
A. Tort v. Contract Damages
1. In General
Ÿ establish standards for measuring the monetary award
2. Torts Damages
Ÿ damages to place the injured party in substantially as good a position as she occupied prior to the wrong
3. Contract Damages
Ÿ damages to place the injured party in substantially as good a position as she would have been had the contract been performed
Ÿ protects the plaintiff’s protected interest by awarding profits that might have been realized from full performance of the contract
a. Distinguish – reliance damages
Ÿ where profits are difficult to prove, injured party may recover expenditures made in reliance on the contract
Ÿ will be offset by any loss that the defendant can prove plaintiff would have suffered had the contract been fully performed
4. Consequential Damages Limitation in Contract Cases –