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Remedies
University of Dayton School of Law
Cochran, Rebecca A.

Remedies Outline

I) Equitable Remedies –

A) Injunctions –

1) Types of Injunctions –

a) Permanent Injunctions – A court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. A prohibitive, equitable remedy issued or granted by a court at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter from doing some act which he is threatening or attempting to commit, or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action at law. A judicial process operating in personam and requiring person to whom it is directed to do or refrain from doing a particular thing.

b) Specific Performance Injunctions – The remedy of requiring exact performance of a contract in the specific form in which it was made, or according to the precise terms agreed upon. The actual accomplishment of a contract by a party bound to fulfill it. The doctrine of specific performance is that, where money damages would be an inadequate compensation for the breach of an agreement, the contractor or vendor will be compelled to perform specifically what he has agreed to do; e.g. ordered to execute a specific conveyance of land. See Fed. R. Civ. P. 70. With respect to sale of goods, specific performance may be decreed where the goods are unique or in other proper circumstances. The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just. U.C.C. §§ 2-711(2)(b), 2- 716. As the exact fulfillment of an agreement is not always practicable, the phrase may mean, in a given case, not literal, but substantial performance. 5 Things are required to get specific performance.

i) Plaintiff has an enforceable right (i.e., prove enforceable contract; it is especially important to have certainty of terms).

ii) Plaintiff must have fully performed all conditions or stand ready to perform

iii) Plaintiff must prove that the legal remedy is inadequate.

iv) Plaintiff must demonstrate that the balance of hardships tips in favor of the injunction.

v) Plaintiff must prove that enforcement of the injunction is consistent with the public interest and will not threaten tribunal integrity.

c) Interlocutory Injunctions – Interlocutory injunctions are those issued at any time during the pendency of the litigation for the short- term purpose of preventing irreparable injury to the petitioner prior to the time that the court will be in a position to either grant or deny permanent relief on the merits. In accordance with their purpose, interlocutory injunctions are limited in duration to some specified length of time, or at the very outside, to the time of conclusion of the case on the merits. Within the category of interlocutory injunctions there are two distinct types, which m

re is a statutory provision to the contrary, these four factors will be considered by a judge before granting any motion for an injunction.

a) A threat of harm to the plaintiff’s legally protected interest –

b) Inadequacy of the legal remedy – There are typically 4 categories of inadequacy of a legal remedy.

i) Multiplicity of Litigation – If the plaintiff would need to bring multiple or sequential lawsuits in order to take advantage of the legal remedy. For example, continuing trespass, the case of rocks being dumped on the field over and over again.

ii) Difficulty in measuring damages – The monetary damages cannot adequately be determined, or are speculative.

iii) The injury to the plaintiff is irreparable – For example, diminished use of property based on nuisance, like fumes from a chemical processing plant. Unless the land is purely commercial, there is no way to compensate for this injury with money. In the case of nuisance, the equitable remedy is almost always superior to the legal remedy.

iv) Willful nature of the defendant’s conduct – Willful or malicious conduct will make it appropriate to give the plaintiff the remedy of their choice in many cases. Harassment.