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Remedies
University of Florida School of Law
Nance, Jason P.

Remedies Comprehensive Checklist

Nance—Spring 2014

1) DAMAGES?

-Lets Restore P to his rightful position (position he would have been if wrong had not occurred)

-Categorizing P’s rightful position: Expectation, Reliance, and Restitution

-Compensatory Damages: Expectancy (incidentals), Reliance, Consequential

-Property is damaged (real prop, personal prop, intangible prop)?

-LESSER OF THE TWO RULE (9/11)(Replacement costs (include repair costs) OR(value if undamaged – Actual Value))

-Exception: ‘Specialty/unique Property”…..mkt value hard to find…built for specific purpose…lacks readily available resale mkt (Trinity Church)….9/11 towers=not unique…had

mkt value—- Can use other proofs of value such as REASONABLE costs of reconstruction – (minus)—depreciation, cost of restoration

-Late payment due? –‘owed money rule’= Limited to principal owed plus damages in form of interest)

-Lease Breach? —- difference btw rent paid and actual value of unexpired term (Buck v. Morrow)

confining to k price will assume that you can go to market and get like property..

-Sale of Goods: UCC REMEDIES for Seller’s and Buyer’s

-Seller may recover: K price – Resale Price + Incidental Damages – Expenses Saved (2-706)

K price – Mkt Price + Incidental Damages – Expenses Saved (2-708)

K price + Incidental Damages – Expenses Saved (2-709, Buyer keeps Goods)

*If lost volume seller: can get Lost Profits + Incidentals – Deposit (Neri v Marine)

-Buyer may recover: (2-712—for Cover): $ towards purchase price paid to Seller + (Cover Price – K

price) + Incidental + Consequential- Expenses Saved

(2-713—no Cover): $ towards purchase price paid to Seller + (Market Price – K

price) + Incidental + Consequential- Expenses Saved

(2-714, breach of warranty) Value as Warranted – Value of goods Received

+ Incidental + Consequential (Chatlos)

Expectancy Damages- Smith v Boles: – ($$paid-Value received)

Specific Performance + Damages not avoided by Specific Performance (2-716)

-Consequential Damages: (Lost profits, loss of use, harder to prove, ‘special damages’, judicial hostility)

-P may recover extra expenses that are natural & proximate result of the breach (Buck/ Morrow)

-D pays late—not liable for conseq damages for failure of P’s other business ventures (Meinrath)

Tortious Interference with K: P is entitled to pecuniary loss + consequentials (Penzoil)

-costs to find equivalent reserves, damages: difference btw finding equivalent reserves

and costs of acquiring D’s reserves

-Loss of use: reasonable costs of obtaining/renting substitute OR amt of additional profit with the original thing. or lost rental value

-lost profits

-IF Tort: Can only recover Reliance Damages. Loss actually suffered, NO EXPECTANCY. Smith v Boles

-minority view: Treat misleading representation as true. Chatlos

LIMITS ON LEGAL DAMAGES

-Express disclaimer

-K term precluding recovery of conseq damages valid unless unconscionable (Kearney v Master)

-CT SPLIT: some argue that failure of substitute remedy should allow p consequentials..

-Liquidated Damages Clause

-valid if reasonable relation to actual damages and not unconscionable (In re Trans World)…..

ex: remaining rental payments for a plane…not costs of entire plane…more like penalty

-determining reasonableness: anticipated/actual harm caused by breach

course of

conduct

Prophylactic Injunction: Inj against lawful acts….like reasonable use of property (see Nicholson)

EBAY 4 FACTOR TEST

1) Inadequate remedy at law: damages speculative (Continental airplane voucher); multiplicity of

actions; intangible business interests; civil rights violations; Nuisance

2) Irreparable Harm : Quality of harm; competitive harm;

-‘p must prove that potential injury is not remote or speculative…failed here’(Almubati v. Bush)

-need cognizable danger of future violations (W.T. Grant-D was director of multiple companies)

-Look @: express intent to comply; effectiveness of discontinuance; nature of violations

-Speculative & intangible fear of future action = not reasonable basis for inj. (Nicholson Halfw)

-Dump case: mice, smell, injunction granted —-reasonable to think that.

-Missapropriating Trade Secrets (PepsiCo)

3)Balance of Hardships (economic and non economic burdens; Relative burdens on parties)

-in Continental, hardship P would undertake to prove damages in loss of control of coupons

-in times of scarcity, more likely to issue specific performance if no market available (Cambell)

-keeping a billboard would be an UNDUE BURDEN on D, billboard not unique (Van Wagner)

-D kept building even though P didn’t want footing on his property—D proceeded at own peril (Whitlock)