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Penn State School of Law
French, Christopher C.

Remedies French Spring 2018

Four Basic Classifications of Remedies:

Coercive remedies
Declaratory relief

Must establish the basis for entitlement to each kind of remedy you are seeking

Coercive Remedies

-Idea of equity- ordered to do something or to stop doing something

-a court sitting in equity- judge determines if P is entitled to extraordinary relief of an order commanding the D to do or refrain from doing specific acts

-these remedies are subject to equitable defenses (see below section)

-may be sought and ordered before trial to preserve the status quo or to prevent irreparable harm

-disobedient D can be jailed of fined

Scope of legal and equitable remedies:

-a desired remedy does not follow from the violation of any particular right, a P must first establish the substantive entitlement to relief and then must establish a legal basis for the desired remedy

-a P cannot get a double recovery of the same damages simply because there are two sources of remedies—a statute may address its relationship to any common law rights

When determining if P is entitled to an equitable remedy courts consider:

The adequacy of the remedy in the statute
Promoting justice
Problem of proof
Does the case involve an important personal right
The purpose of the statute (does it purport to exclude all other remedies)

Norris-LaGuardia Act: limits the jurisdiction of the courts as to what it can do

Treister- Courts can review the application procedures of a private association when membership in the organization is an economic necessity

Dissent- strict economic necessity test is too stringent

Injunctions and Specific Performance

Preventive Injunctions:

What is it-a court order designed to avoid future harm to a P by controlling a D’s behavior

-are preventive in the sense of avoiding harm to P

-may be either prohibitory (do not trespass) or mandatory (remove this obstruction)

Things for the court to consider in granting a Preventive injunction:

Inadequacy of the remedy at law

No relief when remedy at law (usually damages) is adequate
To protect non-contractual interests such as invasion of land
May enjoin a trespass if damages would be speculative, multiple damages actions would be necessary, or if special circumstances warrant extraordinary relief

Look to prevent future conduct and not past conduct
Injunctions issue to prevent immediate irreparable harm
Can get damages for past conduct and injunctive relief to prevent future continuing harm


P must establish the probability that D will make future infringements of P’s rights
A continuing trespass requires a showing that D will not follow a demand to vacate
Repeated trespass requires a showing that the D is likely to continue to repeat the invasion in knowing violation of P’s rights
Trespass by trash- P can remove trash and sue D for cost incurred

Irreparable harm

The harm is irreparable because the damages remedy is inadequate
Must show that the harm threatened is great
K-Mart Corp.

A court may grant injunctive relief to a prevailing P to correct an injury which would, absent an injunction, be irreparable
If money damages can be said to alleviate the harm, then the harm is not irreparable
***harm is normally only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law or is a constant frequent occurrence and no pecuniary standard exists to measure damages
***property is considered unique

evidence that he is entitled to specific performance

Courts consider in granting Specific performance:

The inadequacy of available legal remedies (uniqueness, sentimental attachment, etc.) uniqueness- a line must be drawn between uniqueness and economic interchangeability (not physical uniqueness, but uncertainty in valuing it)(lease is not a unique property)
The existence of a valid K

The parties intended that the K would bind them
The terms of the K are sufficiently definite
The parties exchange legal consideration

The ability of the breaching party to render performance (ready, willing, and able to perform)
The balance of interests and relative hardships of the contracting parties (Does the balance of equity tip in favor of the party seeking performance)
Public interest
Mutuality of remedies exception (requires perfect symmetry of remedies for whichever party to a K might breach)(is there already substantial performance)(this is steadily diminishing)
Any potential difficulties in supervision of enforcement of the decree????

-contract must be read in its entirety (if ambiguous can apply contra proferentem- to interpret the terms against the drafting party or objective theory- K is interpreted through the eyes of the objective third party)

Houseman v. Dare

-Specific performance is generally recognized as the appropriate remedy when an agreement concerns possession of property such as heirlooms, family treasures, works of art that induce strong sentimental attachment