Equity & Remedies
Levine, Jung & Thomas, Remedies: Public and Private (5th ed)
Â
Classification of Remedies
·        Damages – a money remedy aimed at:
(a)   Making good of the plaintiff’s losses or returning the plaintiff to his rightful position, or
(b)Â Â Punishing the defendant
·        Restitution – corrects unjust enrichment of the defendant by making him give up what he wrongfully obtained from the plaintiff
·        Coercive relief – a judicial command to the defendant to act or to refrain from acting in a certain way
·        Declaratory judgment – an authoritative statement of the parties’ rights as to prevent unlawful action
·        Ancillary remedies – methods for recovering judgments and costs of obtaining them
·        Other classifications:
Ø Substitutionary/Specific
Ø Legal/Equitable
Damages
·        Defined – a monetary remedy designed to compensate plaintiff for injury by restoring to rightful position
·        Justification – corrective justice, economic incentives to rightful conduct
·        Evidence – plaintiff’s losses properly measured
Â
I.                   Characteristics of damages
Ø Traditionally paid in lump sum
Ø May be enforced by seizure of the D’s property, sale of the property and application of the funds to pay the judgment
Ø Normally a substitutionary remedy
II.                 Limitations
1.       The Certainty Requirement
Ø Plaintiff usually has the burden of proving:
–         That D’s wrong in fact caused the harm
–Â Â Â Â Â Â Â Â Â The extent of the harm
Ø The fact of harm can be based on reasonable inference in light of the evidence
Ø The extent of harm must be proven with reasonable certainty
2.      The Foreseeability Requirement
Ø Compensatory damages may not be recovered unless the wrong was the proximate cause of the damages sought. (More liberal in Torts than Contracts)
–         Torts – a D is liable for harm that was of a type that was a reasonably foreseeable consequence of D’s tortious behavior
–         Contracts – a D is liable for harm that was reasonably foreseeable to the D when the contract was made. Harm is reasonably foreseeable if:
i.                    It is caused by a breach in the ordinary course of events, or
ii.                  It arises from special circumstances of wh
e)
–         Can be taken into account to reduce P’s recovery
–         Won’t be taken into account if it does not improve P’s position
Ø Offsetting benefit – tort itself creates a benefit to the P
IV.               Harm to Real Property
Ø Difference in vale immediately before and after damage, or
Ø Restoration cost unless it exceeds difference in value enough to be deemed unreasonable economic waste
–Â Â Â Â Â Â Â Â Â Plus loss of use and discomfort/annoyance as occupant
V.                 Time of Loss Convention
Ø As applied to property losses, the convention is value at the time of the loss
Ø Courts will deviate when the convention is substantially under-or over-compensatory
–Â Â Â Â Â Â Â Â Â Three approaches to property that fluctuates in value
i.                    Time of loss
ii.                  Highest intermediate value
iii.                 Highest value between discovery and reasonable time to cover