Equities and Remedies Outline
. EXAM: worth 120pts
1 big essay = 50pts
· 40pts
· 10pts
§ this will be a memo of law
· so be objective
· do not act like an advocate
· do not bias one side over the other
§ over inclusion is better than under inclusion
§ DEFINE everything!!!
· Act like he knows nothing
§ Outline my answer before I start writing
§ It seems that he wants us to first write out all the rules- then a separate paragraph to apply the rules to the facts
35 MC: 2pts ea = 70pts
Look at Dotson’s MC 7/8 Henke’s released
Look at Hey’s MC
Average is 26/35
. Essay analysis
· This case presents several possible remedies for , depending upon the characterization of the underlying COA
· This case presents a number of possible remedial choices for , depending on how we characterize and ultimately pursue this litigation
. Compensatory d’s: Breach of K
o The first approach is to treat this matter as a breach of K
o In a K matter, remedy will be in compensatory d’s
§ In this regard, , would purse compensatory d’s
o Legal setting for breach of K is in the UCC
§ Modern case law suggests that the legal setting for this dispute is the UCC
o The UCC does have booby traps, but it is the best forum
§ Although the UCC may present pitfalls and booby-traps for , it is the appropriate forum in which to discuss this breach of K action btw a consumer and a commercial entity
o As a K case, we will attempt to procure compensatory d’s for the ∏
o Define compensatory d’s
§ “Compensatory d’s are a substiutionary remedy that attempt to put a ∏ back in his rightful position”
o Compensatory d’s are an imperfect form of compensation, but it’s the best we have
§ They are an imperfect form of compensation, but they dominate the civil law system
§ Compensatory d’s are often an imperfect remedy but they are at the heart of the civil law system
o Compensatory d’s in a breach of K case are broken down into 2 categories
§ Within the context of K, compensatory d’s can be separated into general/ direct dj’s OR special or indirect d’s
§ In a K case, we can further parse compensatory d’s into general/ direct d’s & special/ indirect d’s
at reluctant to award the ENTIRE range of consequential d’s
· The utter failure of to request a LDC will undoubtedly harm his chances to recover consequential d’s
· Why? Bc freely King P’s have the ability to include liquidated d’s clauses in their K’s cts are reluctant to rewrite contractual provisions for the P’s
o Ie. if Plate was so concerned about the revenue from his coffee table book, he should have included reference to it in the K
· So the P may get a percentage of the consequential d’s but NOT all of them
· He does not get d’s that are speculative
§ In Meinrath, cts have routinely denied consequential d’s in a K setting if those d’s are too speculative, remote, unforeseeable, or if proximate cause is NOT met
· Many commentors have indicated, PC is ultimately a matter of:
o Logic
o Fairness
o Common sense
o The public’s interest in the proposed solution
All of these legal and policy considerations will …
