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University of Oklahoma College of Law
Tabb, Murray





Equity Generally

Preference for legal remedies. Subjecting an individual to equity jurisdiction also subjects that person to the contempt power of the court – therefore equity is extraordinary. Equity will require judicial supervision. You can get both damages for past harm and injunctions for future harm.

Types of Injunctions

Permanent Injunctions last until the court vacates, dissolves, or modifies

Interlocutory Injunction short term, usually have to post a bond

Temporary restraining order a couple of days, until things can be sorted out

Temporary order or preliminary order issue with the thought of trial to come

Basic Requirements of Injunctions

A right vested or if temporary injunction then a showing of probability of success

Imminence of Harm

Inadequate remedy at law doesn’t mean that damages don’t exist – the remedy has to be: (1) complete, (2) available, and (3) effectual

Irreparable Harm a type of harm that you shouldn’t have to suffer and that money won’t fix

Balancing Hardships comparing who will be most disadvantaged, public interests, interests of third parties. Sometimes the court may consider good faith-bad faith.

Damages v. Equity Hierarchy

Completed Acts equity will not enjoin completed acts

Ongoing Harm damages may be sufficient to remedy the past harm but when the harm is continuous, equity would be appropriate. A landowner could receive fair rental for damages to trespass onto property but when trespass would continue past the suit, equity should be granted. Wheelock v. Noonan

Intangible Loss when an individual is suffering harm that is intangible, equity would be appropriate. Kmart contracts with a strip mall to be the prime tenant in the mall – strip mall puts in superior tenant that blocks Kmart sign – equity is granted requiring the tearing down of the new building. K-Mart v. Oriental Plaza.

Examples of Inadequacy of Damages

Valuation problems

Potential for multiple suits (don’t want to keep coming back to court)

Continuous harm

Nature of interest affected – typically land is worthy of equity protection

Personal health and well being

Collectability of damages – damages against insolvent defendant serves no purpose

Irreparable Harm

Black’s Law – an injury, whether great or small, which ought not to be submitted to, on the one hand, or inflicted on the other; and which, because it is so large or small, or is of such constant and frequent occurrence, or because no certain pecuniary standard exists for measurement, cannot receive reasonable redress in a court of law – synonymous with great harm

Neighbors maliciously revved their diesel engine at all times during the day in close proximity to plaintiff’s bedroom. Trial court granted temporary injunction restraining truck noise during the night until further hearing could be had. Appellate court holds the noise to be a nuisance that constitutes irreparable harm. Muelhmann v. Keilman

Nuisances to obtain an injunction against a private nuisance, plaintiff must establish more than just the existence of an intentional nuisance. The unreasonableness of the activity must be established because it is an undue hardship to stifle a useful enterprise at a reasonable location by injunction. If there is social value to the activity, then it should continue to operate while it pays its way with damages to those privately harmed.

Balancing Interests and Practicality

A judge may weigh the relative hardships of the parties and consider problems with practicality in enforcing the order. Several factors are at play such as timing and location, sometimes even statutes that have already balanced interests.

Statutes/Ordinances: First Consideration

Legislation/ordinances that may have already balanced the public interest for the court. Any time you find a statute in your favor, there is a significant recognition that it favors injunction – definitely a tie breaker when equity and law could both be appropriate.

Statutes can expressly enumerate remedies (damages or injunction)

Statutes can list remedies and be silent on others (damages but silent on injunction)

Statutes can list no remedies (courts will imply injunctions with their inherent equitable power)

Statutes can mandate an injunction

Statutes can preclude injunction

Injunctions and Speech

Injunctions restraining speech are permissible if the rights of the parties are carefully balanced and the injunction is narrowly tailored. 36ft Buffer zone around clinic entrances, noise limitation and 300 ft. no approach zone – all was constitutional except the no approach zone because it burdened more speech than was necessary. Madsen v. Women’s Health Center. In Schenk v. Pro Choice floating buffer zones were found unconstitutional because it creates uncertainty as to where speech is permissible and created a chilling effect on free speech.

Court Concerns with Administration

Avoid Vagueness concerned with the specificity of the injunction because they don’t want future litigation.

Enforcement is a common challenge, especially when court is ordering distance restrictions



Valid contract with definite and specific terms (with material breach) if court is going to make someone do something, they want to make sure the contract is very clear as to what that person is suppose to do

Plaintiff has met its duties in the contract and is able/willing to continue

Breaching Party is able to perform

Inadequate Remedy at law or inability to get a substitute

Uniqueness of a product can mean unique to everyone or to a particular individual

UCC: “when goods are unique or otherwise appropriate”

Balance of respective hardships of each party who should bear the cost and why and a consideration of supervision issues.

Judge Considerations that will Limit Specific Performance

Specific performance is an equitable remedy and therefore both discretionary and flexible. Court will look at issues of:


Supervisability is the court ordered performance something that is hard/impossible to supervise

Public interest and interest of third parties

Contractual issues such as mistake, inadequate consideration, unreasonable hardship

Contractual definiteness lack of sufficient definiteness and certainty in the contract will bar specific performance

Personal services court will not grant specific performance for personal services, but be careful here, being required to keep the door open to your business does not equate to being required to render personal services.

Mutuality of remedies court will not grant if there is a lack of mutuality of remedies – historical notion that if one side can’t get specific performance for a breach, then the other side can’t either. Mutuality can’t be asserted against someone who has fully or substantially performed.

Judge Considerations in Granting Specific Performance

Physical Uniqueness looks to whether there is a substitute to this particular item. This alone does not end the inquiry but it goes to help demonstrate whether damages can be calculated with certainty or whether something is such that valuation would be conjectural.

Adequacy in Consideration considered at the time the parties entered into the contract. Court will not limit specific performance because after the fact the deal seems one sided. Plaintiff was to move in and take care of an old man and the man would in exchange grant a deed to the home. Plaintiff only required to perform for 18 days before old man dies. At time of contract, however, there was adequate consideration. Henderson v. Fisher.

Speculative Damages is the overarching reason to grant specific per

the claim

Unconscionability can invalidate an agreement or simply remove the unconscionable provision


Bars a plaintiff who has not acted promptly in bringing the action.

Flexible doctrine that focuses on unreasonable delay in asserting the action

Unreasonableness of the time – can apply before the statute of limitations

Justifiable ignorance may be an excuse for unreasonable delay

Prejudice the defense is primarily concerned with prejudice to the party asserting the defense. This includes change in position and reliance


Whereas laches concerns delay, estoppel involves actions inconsistent with the rights the plaintiff now asserts. The classic example is that a person cannot first stand outside and watch a neighbor build a fence, and then go to equity and demand removal because the fence is over the property line.

Typical Elements a representation by plaintiff, knowledge of that representation by the defendant, defendant believes the representation to be true and changes position, causal connection between the representation and the defendant being misled, harm.

Equitable Estoppel v. Promissory Estoppel promissory estoppel is a contract based remedy with a theme of injustice; promissory estoppel looks to expectations in the deal and is based on the rights of parties. Equitable estoppel has no promise inherent; equitable estoppel is a representation or failure to speak when it would be necessary. Instead of looking to the future, equitable estoppel is concerned with the past.

Unclean Hands

the party seeking relief has behaved inequitably with respect to the rights being asserted in the case. The maxim: “He who comes into a court of equity must come with clean hands.” The uncleanliness must be serious yet need not rise to the level of fraud or illegality. The taint must be specifically related to the matter before the court, not collateral to it – Equity does not require its suitors to lead blameless lives.


Conceptually related to unclean hands, but historically, slightly different. When a judge finds as a matter of law that the contractual terms are so one-sided to be oppressive, several options exist: court can find the entire contract unenforceable, remove the objectionable provision, or simply limit its effect. Unconscionability is measured at the time of the contract. When court says that a contract is unconscionable, they are saying that it is not the product of a fair bargain.

Procedural Question considers the manner of contract formation and whether the bargain struck was inherently flawed by sharp practices or lack of meaningful choice

Substantive Question looks a the terms themselves to determine if the consideration exchanged was excessively lopsided

Avoid Unconscionability

use plain language

call attention to things (large print and bold headings)

initial or sign key provisions

avoid/modify boilerplate language

tailor remedies to various types of breaches

include a severability clause – if any part deemed unconscionable remainder survives

avoid high pressure tactics