Basic Remedial Tools
If remedies aren’t expressly limited, they may be liberally construed.
LOOK FOR FRAUD ARGUMENTS
Remember tort for tortious intentional interference with contract.
Every case has 5 competing values:
· Order
· Certainty or predictability
· Fairness or Justice
· Freedom or Liberty or economy
· Utility and efficiency
Rule is triggered by the facts the rule requires. Principle is more flexible.
Law- get judgment in rem…right to their property
Equity- get judgment in personam- can get them in jail if they don’t obey the order
Contract Claims
· Breach of contract, written, oral, implied
· Promissory Estoppel
· Quasi Contract
· Gift
Torts that were a basis for injunctive relief (extraordinary relief)
· Duty, Breach, Cause, Damage
· Nuisance- depends on the ordinary sensibilities of the parties involved.
· Public v. Private- difference goes to the damage caused, to whom.
Operative facts- prove the cause of action exists
Evidentiary facts- support the operative facts
Can you disobey an order you think is erroneous?
Still bound unless you’ve sought to modify it in good faith and were unsuccessful.
Types of Remedies
· Coercive Remedies- such as an injunction or specific performance order, is available from a court sitting in equity. The 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, and unconscionability. Preliminary injunctions and temporary retraining orders are available before the trial to preserve the status quo to prevent irreparable harm. Coercive remedy is back by contempt power to compensate for losses incurred by willful disobedience of an order. Three other types of injunctions. Restorative injunctions- operates to correct the present by undoing the effects of a past wrong. Prophylactic injunction- seeks to safeguard the plaintiff’s rights by diecting the defendant’s behavior so as to minimize the chance that the wrongs might recur in the future. Structural injunction- such as a school desegregation order, derives its name from the involvement of the courts in the institutional policies and practices of the defendant entities.
· Damages- To compensate for losses sustained in violation of their rights. Also punitive damages to punish and deter in cases of egregious conduct.
· Restitution- Goal is to restore property to its rightful owner by returning the plaintiff to a position held before a wrong, or to disgorge from a defendant any unjust enrichment occasioned by the wrong to the plaintiff. Look not to the plaintiff’s loss but to the defendant’s gain. Some types of restitutionary remedies include equitable liens, rescission, and suits in assumpsit for quasi-contract. Substantive restitution concerns the entitlement to a restitutionary remedy: courts evaluate whether the defendant has acquired or holds a benefit which, if retained, would be unjust enrichment. Remedial restitution concerns the measurement of that remedy.
· Declaratory remedies- purpose is to obtain a declaration of rights or legal relations between the parties. Often used to determine the constitutionality of a statute or to construe a private instrument so that the interested parties may obtain a resolution of the dispute at an early state. Also nominal damages.
Remedies in Law and Equity
· Plaintiff can seek both legal and equitable remedies in the same claim. However, there is no right to jury for an equitable remedy while there is for remedies at law, 7th amendment. If mixed, legal issues tried first by jury, then remaining equitable issues may be tried by a judge consistent with the jury verdict.
Scope of Legal and Equitable Remedies
· Plaintiff must first establish the substantive entitlement to relief and then must establish a legal basis for the desired remedy. For example, damages require proof of loss and injunctions require a showing of irreparable harm.
· Limitations on Remedies
· Three sources of remedial rights: statutes, federal and state constitutions, and common law.
· Two noteworthy limitations: (1) a plaintiff cannot get a double recovery of the same damages simply because there are two sources of remedies and (2) the statute may addre
for breach of K to marriage. IL cts said these are common law rules, so the legis can’t eliminate them. So IL legis decides to change the remedy and limit it instead to actual damages. But if you do that, there’s not much of a cause of action left.
· Cowin Equipment Co. v. General Motors
Unconscionability doesn’t provided a basis for a cause of action.
Π, dealers in Terex heavy equipment, made K with Δ. Δ delivers. Π isn’t able to sell because there’s a downturn in the economy. Π wants to return goods to Δ, but Δ doesn’t want it back. The K is non-cancellable. The K wasn’t always non-cancellable. Before, Π had the right to cancel. Δ hasn’t breached the K. So Π sues Δ for having an unconscionable K.
The lower ct says the K is unconscionable and awards damages. The ct of appeals says we don’t even have to decide that question. The ct should never have awarded remedy of damages in the first place. The language of the statute says the ct may refuse to enforce the K, or enforce the rest of the K without the unconscionable clause, or limit the application of any unconscionable clause. But this is a defense to a c/a, not a remedy. A remedy is something Π gets if he proves his c/a. A defense is something Δ uses to prevent Π from getting a remedy in the first place.
So unconscionability is a defense. Maybe get Δ to sue you so that you could use unconscionability as a defense, e.g. by not paying them for the equipment. Could you sue for declaratory relief? No. There must be an actual controversy. If you’ve already paid, then there is no controversy.
· The difference between a remedy and a defense–unconscionability is a defense to equitable claims, and also today to legal claims, but does not establish a cause of action.
