Equities and Remedies Outline

Legal Remedies
I. The Rightful Position &Compensation
A. Goal: To put the plaintiff back in their rightful position.
1. Tort Remedies
a. Look backward
b. try to put humpty dumpy back together again.
2. Contract:
a. looks forward
b. tries to put the π in the position as if the “K” was fully performed.
3. one satisfaction rule
a. Π may be entitled to judgment on multiple legal theories against
Multiple Δ’s but he can only recover once
b. Policy: make the π whole not rich
4. schools of thought
a. Corrective Justice (P. 17, n.5)
i. associated with a moral view trying to reach basic fairness between parties.
ii. π shouldn’t suffer for Δ’s wrongdoing
b. Economic Efficiency Analysis (17, n.6)
i. everything can be explained in law through economic efficiency.
ii. We should look for productive or useful behavior.
~ Costly behavior should be discouraged & beneficial behavior should be
rewarded.

B. Taxes, Time and the Value of Money
1. Interest – Should D have to pay P interest?
a. Prejudgment Interest
i. Interest that accrues before the judgment occurs.
ii. recoverable for money damages that are ascertainable or certain by calculation.
~@ CL
*only available in “K” b/c Tort was too speculative.
~Modern approach
*availability in tort depends on jurisdiction
▪ (in CA it is as discretion of jury).
▪ If jurisdiction doesn’t allow, Δ has incentiveto delay.
b. Pos-judgment Interest
a. interest that accrues from judgment Δ pays.
b. computation depends on jurisdiction
(Do not allow compound interest)
2. Taxes
a. Tort damages
i. @ CL: tort damages are exempt
ii. Now: only personal physical injuries or physical sickness is exempted
b. Lost Earnings
i. Majority: award earning before taxes
~Policy: it is difficult to calculate taxes.
ii. Minority: award earning after taxes
~Exception:
* In a wrongful death case for decedents future lost earnings use the majority approach.
c. Non injury and K damages are taxable

3. Determining Present Value
a. Total Off-Set Approach
i. assumes inflation will off set future value and calls it a wash.
ii. still factor in individual and productivity raises so they still adjust upward.
b. Real Interest Rate Approach
i. Don’t predict future interest rates; overtime rates tend to out pace inflation by a
1%-3%
ii. The discount rate would be this 1-3%.
~S.C. endorsed but not required.
c. Balancing Approach (Blackletter Law)
i. Attempts to find future inflation and interest rates & balance the interests out.
C. in Tort
1. Methods:
a. FMV
*Price ordinary buyer & seller would agree; choose lowest
i. general rule for measuring prop. Damage
~exception special purpose property;
≠ active market
*repair/ replacement costs
ii. Cost to repair /replace
~Allowed if
*reasonable
* restoration necessary
~we will allow D to pay which ever is less between FMV &repair.
i. For farm crops the damages are measured at the time of harvest.
b. Diminution in Value
i. property b4 damage – property after damage
c. Loss of Use
i. cannot be general; must be specific to what their use was worth
ii. 3 ways to measure:
~Cost of renting or replacement
~Lost profits or earnings
*Used in business context where lost use leads to lost profits.
▪Subject to rule of consequences.
Must act reasonably to mitigate (i.e. I am driving my flower truck