Equity and Injunctions: A Comprehensive Guide, Quizzes of Remedies

Download Equity and Injunctions: A Comprehensive Guide and more Quizzes Remedies in PDF only on Docsity! TERM 1 Permanent Injunction DEFINITION 1 General Requirements: legal remedy is inadequate (i.e. property is unique/sentimental, damages are speculative, irreparable injury, Ps are not likely to bring suit, multiplicity of actions necessary, defendant is insolvent) enforcement of the injunction is feasible (court has jur. & can enforce through contempt power & supervision issues) balancing of hardships (i.e. hardship to the defendant doesn't outweigh benefit to the plaintiff); and no defenses are available TERM 2 Preliminary Injunction & TROs DEFINITION 2 Preliminary Injunctions & TROs are "temporary injunctions" in FL- designed to maintain status quo pending trial on the merits.Elements: irreparable injury will occur without the injunction P will likely succeed on the merits of the claim post bond (except - to prevent physical injury or abuse)Damages if injunction overturned - bond is max D can recover. TERM 3 Specific Performance of K (see marketable title, time is of the essence,& mutuality of remedy) DEFINITION 3 Specific Performance of Contract - equitable remedy (a type of expectancy damages) court orders party to perform contract terms -Elements: a valid K must exist (requires adequate consideration & certainty of terms: identify of parties, description of the property, price, time, & manner of payment) plaintiff must have performed, or be ready & willing to perform the legal remedy must be inadequate enforcement is feasible; and no defenses available to defendant TERM 4 Rescission DEFINITION 4 Rescission -the undoing of a voidable contract treated as if contract was never made Appropriate where: mutual mistake as to material fact (unless comprise of disputed fact) misrepresentation as to material fact (without misrep party would not have entered K) unilateral mistake (not normally) - but where the other party knew/should have known of the mistake (Ps neg. is irrelevant) duress, undue influence, lack of capacity, TERM 5 Reformation DEFINITION 5 Reformation contract was valid at the outset court modifies contract to reflect the original intent of the parties May be reformed for: mutual mistake unilateral mistake coupled with fraud (other party knew or should have known). P's negligence irrelevant misrepresentation *SOF not applicable here. Parol evidence admissible. TERM 6 Constructive Trust DEFINITION 6 Court orders D to convey property to P to prevent unjust enrichment.tracing requiredappropriate where property has gone up in valueloses to BFP TERM 7 Equitable Defenses DEFINITION 7 Equitable Defenses: unclean hands (must be related to the transaction at issue. Test = "offensive to the court") laches (flexible time bar - delay must be unreasonable, or prejudicial to D (his defense or economically) Impossibility/Hardship (D must be capable of performing and hardship to D cannot substantially outweigh benefit to plaintiff). freedom of speech (i.e. prior restraint issues) TERM 8 Inadequate Legal Remedy DEFINITION 8 A legal remedy is inadequate when money damages will not restore the plaintiff to his rightful position: unique property (i.e. land, limited supply) damages would be speculative (i.e. uncertain) multiple lawsuits would be required (regularly occurring tort) where insolvency of the defendant prevent recovery where irreparable harm results TERM 9 Preliminary Injunction & TROs continued DEFINITION 9 With notice - after a hearing and court order Without notice - ex parte, show irreparable injury prior to hearing & attorney must certify in writing attempt to give notice & why it should not be required. Damages if injunction overturned - bond is max D can recover. remain in effect until further court order defendant may move to dissolve/modify at any time and a hearing must be held within 5 days of motion TERM 10 Contempt DEFINITION 10 Civil - initiated by private party intended to compensate plaintiff for damages caused by defendant's disobedience intended to compel D's compliance to prevent further harm Criminal direct - occurs in front of the court indirect - occurs outside the court affords protection of criminal prosecution *if injunction overturned - civil contempt falls but criminal remains