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12 Cards in this Set
- Front
- Back
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Analysis for Equitable Remedy
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Legal relief M/b inadequate
- damages are speculative and unceratain - P w/suffer irreparable harm b/c of D and legal damages w/b insufficient - D's insolvent - subject matter is unique/rare Equitable relief M/b feasible - subject matter/person in forum - not an excluded category - i.e. matters of taste, personal services, D unable to perform, skill/complex, defamation and privacy, pending criminal proceedings No Equitable Defenses - unclean hands - laches (where P's delay prejudices D in time or in defense) - first amendment - hardship and impossibility |
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Torts - When Injunctions Usually Allowed
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Continuous trespass to land
Conversion of unique chattel Prevent continuation of wrongful suit |
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Torts - When Injunctions Sometimes Allowed
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Eliminate private nuisance (public only if specified individual harm)
Prevent waste (not including ameliorative) Prevent enforcement of extrinsic-fraudulently obtained judgment IIBR - u/l conduct is privileged Trade secrets, trademark infringement, right to imitate, copyright and patents |
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Temporary Injunctive Relief
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Preserve Status Quo during litigation = interlocutory injunction or TRO
P M/show likelihood of reasonable probability of prevailing at trial PA = preliminary injunction only w/b issued w/ written notice and hearing if injunctive bond is posted - and will be dissolved u/l hold hearing w/in 3-5d (freedom of expression) - if no notice, P M/show immediate injury |
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Contempt
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Civil
- private party to compel D to comply or to compensate for damages caused by his disobedience Criminal - by gov't - direct = in court - indirect = outside court PA = notes that non-parties M/observe injunctions when they know of them |
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Contracts - Specific Performance Considerations
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Requires valid K (certain terms, fairness of consideration), fulfillment of all K obligations AND mutuality of remedy (both c/enforce)
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Contracts - Specific Performance - Time is of the Essence Clauses
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Specific performance for failure to satisfy clause IF
- tardiness is de minimis - other party's loss is slight - undue hardship |
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Equity - Unlawful Competition
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Tort Trade Secrets
Contract Covenants not to Compete - enforceable if reasonable in time, scope and geographic area - PA will blue pencil these if they're overbroad to make them reasonable |
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Equity - Rescission
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Rescission = voided K is ended and parties are treated as though it was not made - and can seek restitution to recover value exchanged pre-rescission
- mutual mistake as to material fact - unilateral mistake if other s/h/k - misrepresentation of material fact - duress, UI, lack of capacity, failure of consideration |
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Equity - Reformation
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K treated as valid and writing changed to conform to originally-intended agreement
- mutual mistake - unilateral mistake PLUS fraud - misrepresentation |
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Equitable Defenses
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Unclean Hands = is the behavior offensive to the court?
Time Bar/Laches = P's delay in suing is unreasonable based on discovery of wrong, and is prejudicial to D (economically or defense) Hardship and Impossibility = discretionary w/r/t feasibility Freedom of Speech = defamation and privacy |
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Constructive Trusts vs. Equitable Liens
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CT = equitable duty for D to convey title to property acquired to rightful owner = prevent unjust enrichment
Equitable Lien = holder has a security interests - requires foreclosure of property to realize payment of the lien. - preferred when property has decreased in value - also preferred when no severable interest in D's property to which P can lay claim NEITHER c/b enforce against a BFP (for value w/o notice) |
