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University of South Carolina School of Law
Flanagan, James F.

Final Exam Outline – Summer 2008
Prof. Flanagan
I.       Overview (Chapter 1)
A.    Introduction
1.      Substitutionary Remedies – give the plaintiff money in exchange for an otherwise non-compensable loss. For example, suppose that plaintiff loses an arm in an automobile accident. Since a court cannot order the defendant to replace the arm, it instead orders the defendant to pay plaintiff money to compensate him for lost wages, medical expenses and pain and suffering associated with the loss of the arm.
2.      Specific Remedies – give the plaintiff the specific item sought. For example, when plaintiff’s ex-husband makes off with her family heirloom (e.g., a family bible), specific relief might come in the form of a court order requiring the ex to return the bible.
3.      Damages Remedies – damage remedies can take a variety of forms including nominal, statutory, liquidated or compensatory. For example, nominal damages are designed to vindicate plaintiff’s right by making a legal declaration of those rights and providing plaintiff with “nominal” compensation. Compensatory damages are supposed to repay plaintiff for any losses she has suffered, making her whole, in so much as the law is capable of doing so. Liquidated and statutory damages represent efforts to tell courts how much to award or how to calculate a damage award.
4.      Coercive Remedies – coercive remedies involve in personam court orders that are enforceable through the remedy of “contempt of court.” “Contempt of court” is an extremely powerful remedy by which a court can impose jail sentences or fines in order to punish a defendant for violating a court order, to coerce a defendant to obey the order, or to compensate plaintiff for violation of the order.
5.      Declaratory Remedies – the function of declaratory relief is to provide a judicial declaration regarding the rights, obligations or responsibilities of the parties relating to a particular situation (e.g., a declaration that plaintiff’s picketing activities are protected by free speech principles and that an ordinance that purports to restrict those activities is unconstitutional).
6.      Restitutionary Remedies – restitution is a remedy that is imposed to prevent unjust enrichment. It awards a plaintiff the amount that defendant gained as a result of the wrong, not the amount that the plaintiff lost (as in damages). Restitution includes such remedies as quasi-contract, constructive trust, equitable lien, subrogation, rescission, reformation, accounting for profits, ejectment and replevin.
II.    Equity and Equitable Remedies (Chapter 2)
A.    A Historical Perspective
B.     The Development of Equity in the U.S.
C.     Equitable Remedies Today
1.      Standards for the Availability of Equitable Relief
a.       Conscience and Equity – equitable remedies are only available when “equity” and “conscience” demand them.
b.      Equitable Remedies are Granted in Personam – when a court renders an “in personam” judgment, it orders the defendant to do, or refrain from doing, some act. A defendant who refuses to comply can be held in contempt and subjected to prison or fine.
c.       Inadequacy of Legal Remedy/Irreparable Harm – Another equitable maxim that survives today is the principle that equitable relief is not available except when plaintiff’s remedy is inadequate.
(1)   Fortner v. Wilson – In this case, the Plaintiff is seeking an equitable remedy in the form of specific performance because of the dealer’s refusal to deliver a car to the buyer. In most instances, where damages are capable of being calculated there is an adequate remedy at law, thus no equitable remedy is available in this case. The court ordered the defendant to pay the difference between what the plaintiff would have paid for the original car and what he will have to pay for a replacement car.
(a)    “[U]nless there is something unique in the article sold, or something about it that would prevent money damages from giving full relief, specific performance will not be granted.”
(b)   “The rule which really controls in this case is that in the sale of personal property, equity will not force specific performance where plaintiff had an adequate remedy at law.”
(2)   The Sale of Land – Real property is considered unique, so specific performance is often the relief granted when a contract for real property is breached.
(3)   Schiller v. Miller – During the parties’ lengthy personal relationship, Miller purchased jewelry which was kept in the safe in the parties’ home. The trial court granted a temporary restraining order enjoining Schiller from disposing of the property. The court affirmed the trail court’s granting of the injunction because there was no adequate remedy at law. There was no adequate remedy at law because the pieces of jewelry are unique and incapable of precise valuation. In other words, it would be very difficult to determine the value of any damages that might be awarded.
d.      Equitable Relief is Discretionary – As at common law, equitable relief remains inherently discretionary. A court may deny equitable relief even though plaintiff’s legal remedy is inadequate.
(1)   Goerg v. Animal Defense League – “Even though the presence of the proposed animal shelter may

the title now in issue may not now be raised by this defendant to defeat otherwise available relief.”
c.       American University v. Wood – The court declined to grant equitable relief because each party in the case had been engaged in wrongdoing and deceptive advertising.
(1)   “The maxim that he who comes into a court of equity must come with clean hands was never intended to bar every one guilty of wrongful conduct from relief in a court of equity, and as a general rule it is required that the wrongdoing or fraud of the complainant, to bar him from relief on the ground that he comes with unclean hands, must be connected with the subject of the litigation, and have some relation to the rights of the parties arising out of the transaction.”
(2)   “A court of equity is a court of conscience, and will exercise its extraordinary powers only to enforce the requirements of conscience. It is no part of its function to aid a litigant in the promotion of a fraud upon the public.”
2.      Unconscionability – Since equity developed as a “court of conscience,” courts feel free to deny equitable relief on the grounds of conscience. The defense of unconscionability is available when the terms of a contract are so onerous and oppressive as to make the enforcement of the contract “unconscionable.”
a.       Campbell Soup Co. v. Wentz – The contract at issue in this case involved the sale of carrots from a farmer to Campbell Soup, Co. Campbell gives sees to farmers and the farmers in turn agree to sell the carrots back to Campbell. However, in the agreement Campbell says that they do not have to take the carrots and the farmers can only resell the carrots if Campbell doesn’t take them and if they get Campbell’s approval.
b.      UCC §2-302 comment 1 – “The principle [of unconscionability] is one of the prevention of oppression and unfair surprise and not of disturbance of allocation of risks because of superior bargaining power.”
Laches – Laches is based on the maxim: “Equity aids the vigilant.” Broadly defined, laches is any unreasonable delay by the plaintiff in instituting or prosecuting an action