Damages and Equity Outline
Prof. Knowles
Spring 2014
I. Common Remedial Mechanisms
A. Self-Help
1. Clients have to be very careful when self-help is used.
2. Example: repossession of car
B. Agreed Resolution
1. Comes short of litigation, come up with a resolution that both parties are satisfied with
2. Reason to avoid paying litigation costs, court fees.
C. Mediation àSystem of which a neutral party comes in and tries to come up with a compromise between both parties.
1. Sometimes mandatory to have mediation before suit.
2. Mechanism to avoid court
D. Arbitration
1. A matter of contract. There is a fact finder who looks at evidence and listens to testimony.
2. Limited use of arbitration in certain areas.
3. Lets off steam from both parties that may keep them from going to court
E. Damages à Calculated by monetary loss, by injury that has been sustained.
II. Equity
A. Threshold (Limits): Irreparable harm/inadequate remedy at law
1. Economic harm causing a business to be destroyed
2. Injury is hard to quantify through damages
3. Injury that is hard to describe, or hard to come up with the harm (ex. constitutional right, nuisances)
4. When defendant has no money
5. Multiple lawsuits
6. Unique service
B. In personam
1. In personam judgments either order a defendant to do, or refrain from doing, some act (injunctions). They are enforced through contempt, which will subject the defendant to punishment or fines.
a. In personamà enforcing of injunctions through contempt.
b. Contempt penalties
§ Fines or Imprisonment
C. Jury trials
1. Rarely offered for equity claims
D. Court supervision
1. Determine whether it is:
a. Feasible?
b. Practical?
c. Limitation on judicial resources?
E. Balancing equities and/or hardships
F. Types of relief
1. Specific performanceà restores plaintiff in the exact item or position they were in which they were wrongfully deprived of.
a. For property not for personal services
2. Coercive à remedy that is enforced through the court’s contempt power
a. Goal is to prevent irreparable harm before it occurs
b. Injunctions are reparative (aimed at undoing the effect of past wrongs), preventative (prevent the loss of a right from occurring in the future), and structural (restructuring the policies and practices of a public institution to comply with constitutional requirements).
§ Permanent Injunctions
i. Mandatory Injunctions à make a party to do something
ii. Prohibitory Injunction à prohibits a party from doing something
§ Temporary Injunctions
i. Temporary restraining orders (TRO)
1. Pretrial remedy
3. Declaratory à allows parties to resolve disputes before anyone has suffered harm- helps them act legally before any problems ensue.
a. Authoritative pronouncement regarding the rights, obligations or legal relationship of the parties that is
cases focus on clauses waiving substantive or procedural rights, and especially on the details of arbitration clauses.
3. Harm is so much greater that the court cannot justify, 30% of the contract
IV.Damages
A. General Damages à same as compensatory damages
1. value of contract or value of what P lost from the initial impact od D’s wrongdoing
a. such as value of property destroyed or not delivered
2. may also include incidental or reliance damages
3. looking to compensate party from the harm they suffered
4. puts plaintiff in position as if he were never wronged
B. Special damages à consequential damages
1. Income losses that have to be foreseeable
a. Including profits
2. Find them in tort and contract cases
3. Secondary or derivative losses arising from circumstance that are particular to the parties
4. Consequential Damages resulting from the seller’s breach include:
a. Any loss resulting from general or particular requirements and need of which the seller at the time of contracting had reason to know which could not reasonably be prevented by cover or otherwise; and
b. Injury to person or property proximately resulting from any breach of warranty
