I.

INTRODUCTION
A. General Categories of Remedies (OL I.A.)
1. Liability must exist for remedies. The three areas of remedy analysis, in order of consideration, are:
a. Remedies at law (Damages)
b. Restitution
c. !uitable remedies
II. REMEDIES AT LAW
A. Damages in Torts Cases (OL II.A.)
1. Purpose
a. The "ur"ose of damages in torts actions is generally:
#om"ensation, to "ro$ide an award in the form of money %udgment to the aggrie$ed "arty to com"ensate for any
loss or in%ury resulting from the unlawful act of omission of another
b. & secondary "ur"ose:
'unishment or deterrence
(. Basic Tpes of Damages
a. T!ree Categories of Tort Damages
(1) #om"ensatory
(() )ominal
(*) 'uniti$e
b. Compensator Damages
(1) #om"ensatory damages are designed:
to com"ensate the "laintiff for loss suffered
(() T!ree "e Concerns+#om"ensatory damages must be:
(a) ,oreseeable
EXAMPLE:
Thin- bac- to the .agon /ount doctrine, which holds that if a defendant commits a tortuous act, the
defendant will be res"onsible for the foreseeable conse!uences of that tortuous act.
(b) #ertainty 0 There must be "roximate and legal cause between the wrongdoer1s act and the "laintiff1s
in%ury
1) The court must be able to calculate the damages with certainty:
2tronger re!uirement in contract than tort as damages are more certain3 stronger for "ro"erty than
"ersonal in%ury.
EXAMPLE:
'laintiff wants to start u" a brand new business. Defendant tortiously interferes with that business
starting u", and therefore 'laintiff is unable to start u" that new business and wants to reco$er lost
"rofits. 4ow could a court measure lost "rofits in this situation, with a brand new business with no
record or history5 This is a situation where certainty will be a "roblem.
(c) 6na$oidable
1) The "laintiff must:
/itigate the loss she or he suffered
() T#o "e Points
Remedies
a) 7f the "laintiff fails, after the defendant1s tortuous act, to ta-e reasonable ste"s to mitigate the
damage suffered:
The "laintiff will not be able to reco$er
b) 7f the "laintiff ta-es ste"s and ex"ends some money in doing so: ex"enditures are reco$erable to
mitigate the damages.
EXAMPLE:
' o"erates a "etting 8oo and D negligently -noc-s a hole in the fence of the 8oo. ' then has to
!uic-ly go to the hardware store, buy material, and "atches the fence. The ex"enditures would
be reco$erable because they are reasonable ex"enses in mitigating harm9damages.
c. General Damages
(1) :eneral damages are damages:
These are damages that naturally flow from the defendant1s act
(() To that end, these ty"es of damages are "resumed and do not ha$e to be "leaded by the "laintiff.
EXAMPLE:
If P is !it o$er t!e !ead% t!e damage to !is !ead is presumed% t!e don&t !a$e to 'e pleaded.
d. (pecial Damages
(1) 2"ecial damages are:
&ny other damages suffered by the defendant1s act and "laintiff has to "lead them s"ecially
EXAMPLE:
If P is !it o$er t!e !ead ' D% it can 'e presumes t!at t!is #ill cause some pain. If P claims t!at !e is
no# suffering from 'lurred $ision as a result% and t!at is pre$enting !im from #or)ing% !e is no#
claiming lost #ages. T!ese must 'e separatel pleaded and pro$en.
(() xam"les of 'ersonal 7n%ury #laims:
(a) 'ain and suffering
(b) Damages to "ri$acy
(c) Damages to re"utation
*. In$ol$ing Personal Propert
a. The standard measure of damages is:
diminution in $alue or cost in re"air, whiche$er is less, along with loss of use damages
b. ,or destruction of "ersonal "ro"erty, the standard measure of damages is:
mar-et $alue or re"lacement $alue, less de"reciation
EXAMPLE:
7f ' had a briefcase, but had been using it for a number of years and therefore, it had become somewhat ragged
and beaten u", though still functional. D subse!uently destroys the briefcase, and ' wants it re"laced, demanding
the re"lacement $alue. The destroyed briefcase1s $alue is less than a new one, so there must be some deduction
for de"reciation.
c. Con$ersion $s. Trespass to C!attels
(1) ;oth in$ol$e:
damage to or dis"ossession of "ersonal "ro"erty
(() #on$ersion in$ol$es:
a more substantial interference with "ro"erty interest
(*) Tres"ass to chattels in$ol$es:
lesser damage or dis"ossession of "ro"erty
(<) The general remedy for con$ersion:
,orced sale of the item to the defendant. 'laintiff does not get the "ro"erty
(=) The general remedy for tres"ass to chattels:
Re"air $alue or rental $alue
<. In$ol$ing Real Propert
a. (tandard *easure of Damages
(1) The reco$ery standard is:
Diminution of $alue or cost of re"air "lus loss of use
(() ,or destruction of "ro"erty, the standard measure of damages is:
diminution in $alue as in mar-et $alue before destruction 0 minus $alue after destruction, or the cost
to rebuild, whiche$er is less
b. Trespass
(1) 7f the tres"asser damages the land:
' is entitled to reco$er for the damages
(() 7f no in%ury results to the land from the defendant1s tres"ass:
nominal damages
(a) +,ception:
if entry into the land by defendant has effectuated an ouster.
(b) 7n this exce"tion, the "laintiff will be entitled to reco$er:
reco$er rental $alue for as long as the defendant carries out the occu"ation. 7f not ousted, %ust reco$er
nominal damages
=. In$ol$ing -arm to +conomic Interests
a. In General
(1) 4arm to economic interests:
/ust be tac-ed on to "ersonal in%ury or "ro"erty damage
(() &s a general rule:
#annot reco$er for "ure economic loss
b. .raud
(1) :eneral damages for fraud are measured by either:
(a) benefit of the bargain a""roach (slight ma%ority rule)
1) 6nder this a""roach, the damages are measured:
between the $alue the ' thought what she was recei$ing and the $alue of what she recei$ed
(b) out of "oc-et
1) 6nder this a""roach, the damages are measured:
between sale "rice and $alue of what ' actually recei$ed
HYPOTHETICAL
Don offers to sell 'at a tool set for >*=. Don re"resents the mar-et $alue of the set as >=? but -nows in fact it is worth only >(=.
Relying on Don1s re"resentation of $alue, 'at "urchases the set for >*=. .hat are 'at1s damages under an out@of@"oc-et
measure5 6nder a benefit@of@the@bargain measure5
;enefit of bargain measure, the slight ma%ority rule, damages measured between what she thought she was recei$ing and what
she recei$ed. 2he thought she was recei$ing >=? toolset and she recei$ed >(=, so she would get damages of 0 >(=. Aut of
"oc-et measure @ >1? (>*= minus >(=)
B. /ominal Damages
a. .hen a tort occurs without damage:
Then nominal damages are awarded because damage is not an element of intentional tort
EXAMPLE:
,or any tres"ass on real "ro"erty, the "laintiff has the right to at least nominal damages attributable to the in$asion
of the owner1s exclusi$e right to the land, e$en if the defendant1s "resence on the land caused no actual damage to
the "ro"erty.
b. )ominal damages gi$e rise to the "otential for "uniti$e damages.
C. Puniti$e Damages
a. 'uniti$e damages are designed to "unish the defendant:
commits intentional and rec-less conduct done maliciously, wrongfully
b. 'uniti$e damages are a$ailable when:
in tort cases, there has been willful, wanton or malicious conduct. 'laintiff is not entitled to an award of "uniti$e
damages but %ury may award them at their discretion
c. & "laintiff is ne$er entitled to an award of "uniti$e damages, but may see- them:
in a ma%ority of %urisdictions, "uniti$e damages can be tac-ed on after com"ensatory and nominal damages are award

D. Collateral (ource Rule
a. 7f a "laintiff gets benefits from a collateral source (i.e., not the defendant) in a tort or contract action:
.hile ' can only reco$er once for his in%uries, any amount from collateral source, is not deducted from the amount
defendant owes in damages
EXAMPLE:
'laintiff brings an action against Defendant for >(?,??? in medical ex"enses. 'laintiff was insured at the time of the
accident that caused his in%uries, and his insurance com"any "aid all medical ex"enses. 'laintiff may still sue
Defendant for the medical ex"enses and collect the full amount if he "re$ails on the liability issue.
B. Damages in Breac! of Contract Cases (II.B.)
1. In General
a. The goal is to "ut the "laintiff:
in the same "osition to the "laintiff would ha$e been if the contract had been "erformed. These are -nown as
ex"ectation damages.
(. & li0uidated damages clause is an attem"t by the "arties:
to establish in ad$ance of the breach, what the damages would be in the e$ent of a breach.
a. .here enforceable, courts will find li!uidated damages:
determines the reco$ery
b. Two im"ortant considerations to determine if a li!uidated damages clause is a measure of damages or a
"unishment are:
(1) Damages must be difficult to ascertain at the time contract is formed
(() 'arties must made a reasonable attem"t to forecast the damages
c. .here those re!uirements are not met:
Li!uidated damages would be "resumed to be a "enalty and unenforceable. #ourt may grant s"ecific "erformance if
a""ro"riate, unless contract sti"ulates li!uidated damages as the only remedy
&s a general rule, any time a li!uidated damages clause arises in a "roblem, there will be a $ery strong argument that it
is a "enalty and unenforceable. This is to allow students to go on and discuss other damages.
*. &n e,pectation measure:
is the standard measure that flows from that ty"e of contract together with any conse!uential damages. The damages
must be shown with reasonable measure
<. In$ol$ing (ale of Real +state
a. Breac! ' Purc!aser
(1) The measure of damages when the buyer breaches is:
the difference between the contract "rice and fair mar-et $alue of the "ro"erty
E&/
T7'

EXAMPLE:
(eller contracts to sell propert for 1233%333. Buer 'reac!es t!e contract. T!e fair mar)et $alue of t!e
propert at t!e time of t!e 'reac! is 143%333. (eller #ould reco$er 123%3335t!e difference 'et#een t!e
contract price and t!e fair mar)et $alue.
(() These damages are solely interested in com"ensation. 7f the mar-et "rice exceeds the contract "rice:
unli-e tort damages, contract damages are solely interested in com"ensation so the seller will not
reco$er anything
b. Breac! ' (eller
(1) The measure of damages when the seller breaches:
fair mar-et "rice minus the contract "rice
EXAMPLE:
(ame facts as t!e last e,ample% onl t!is time% (eller 'reac!es. Buer #ill reco$er 123%3335t!e
difference 'et#een t!e contract price and t!e fair mar)et $alue.
(() .here the contract "rice is the same as or lower than mar-et "rice:
the buyer is not harmed so no reco$er
=. In$ol$ing (ales of Goods 6nder Article 7
a. Breac! ' Buer
(1) #ontract "rice minus the mar-et "rice
1) The seller can also resell the item and then "ursue damages, "ro$ided:
a) resale is done in good faith
b) commercially reasonably manner
c) reasonably soon after the breach @
() .hen this occurs, the seller1s damages:
contract "rice minus resale "rice
*) Lost 8olume (eller Rule
a) .hen a seller is in the business of selling goods of this -ind, and has a fairly unlimited su""ly of
those goods:
the commercial seller is always entitled to loss of "rofits on the sale
EXAMPLE:
2eller o"erates a stereo store, and contract to sell a stereo for >1??. ;uyer breaches, and 2eller
"roceeds to resell the stereo to someone else. 2eller has suffered damage because he should
ha$e sold two stereos, but because of ;uyer1s breach, 2eller sold only one.
b. Breac! ' (eller
(1) The buyer1s standard measure of damages:
/ar-et "rice minus the contract "rice
(() & buyer can also reco$er:
Difference between the co$er "rice and contract "rice
(a) & buyer co$ers by buying re"lacement goods without:
1) 6nreasonable delay
() :ood faith
*) Reasonable time
B. In$ol$ing +mploment
a. Breac! ' +mploer
(1) The em"loyee1s standard measure of damages:
Lost wages
(() 4owe$er:
2ub%ect to affirmati$e duty to mitigate
(*) "e Rule
m"loyee is not re!uired to ta-e on any %ob 0 similar %ob in the same area
b. Breac! ' +mploee
(1) The em"loyer1s standard measure of damages:
xtra cost of hiring someone else to do the %ob
C. In$ol$ing Construction on Real +state
a. Breac! ' O#ner or Purc!aser
(1) The builder1s standard measure of damages:
The "rofits the builder ex"ected to ma-e on the %ob "lus the cost ex"ended to date
EXAMPLE:
-omeo#ner !ires Painter to paint !er !ouse for 123%333% and Painter e,pects to e,pend 19%333 on
supplies and la'or% t!ere' ma)ing a 1:%333 profit. If -omeo#ner 'reac!es t!e contract t!e ne,t da%
Painter is entitled to 1:%333% constituting !is lost profits. If Painter 'oug!t t!e paint and painted a
fourt! of t!e !ouse% !e #ould 'e entitled to t!e 1:%333 plus t!e cost e,pended to date on t!e paint and
t!e la'or.
b. Breac! ' Builder or Contractor
(1) The owner1s remedy if the wor- is not yet com"leted:
additional cost to com"lete abo$e the contract "rice
(() 7f the builder or contractor com"letes the wor- but with defects, the owner may reco$er either:
cost to remedy the defect unless the cost is too dis"ro"ortionate to the benefit recei$ed. 7n such a
situation, diminution of $alue.
EXAMPLE:
T!in) 'ac) to t!e famous Cardo;o Read<Pipe decision. Builder #as !ired to 'uild a !ouse using
Read<Pipe% 'ut instead used anot!er pipe t!at #as almost as good% 'ut #asn&t Read<Pipe. In t!at
case% t!e cost to remed #as too disproportionate to repair% so instead t!e court granted t!e
diminution of $alue.
D. Conse0uential damages
&ny other damages that are foreseeable and certain
a. #onse!uential damages must be reasonable foreseeable:
to the breaching "arty at the time the contract was formed
F. Incidental damages
2ubset of conse!uential damage
1?. Reliance damages
&lternati$e method to measure damages
a. These consist of any ex"enditures:
any ex"enditures made for "erformance of the contract "rior to the breach
EXAMPLE:
& contracts to build a house for ;, and goes out and buys lumber and other materials that & will need to build the
house. ;efore & starts wor-, ; breaches the G. & could "ursue ex"ectation damages, or & could sim"ly choose to
sue for reliance damages. These damages would be the amount ex"ended in "re"aration to "erform the G to date,
or the amount s"ent on the materials.
III. RESTITUTIONARY REMEDIES
A. Remedial Purpose
1. & restitutionary remedy see-s to "re$ent the un%ust enrichment of the defendant:
by returning to the claimant any benefits un%ustly conferred by the claimant on the defendant
B. Restitutionar Remedies in Tort Cases (OL III.B.)
1. Legal Remedies
a. +=ectment
(1) &ction to remo$e D wrongfully in "ossession of '1s land
b. Reple$in
(1) &ction at law for the reco$ery of s"ecific chattels that ha$e been wrongfully ta-en or detained
(. +0uita'le Remedies
a. ;oth e!uitable remedies arise out of a !uasi@contract analysis.
b. 2ome courts re!uire a showing:
legal remedy is inade!uate before they can get e!uitable remedies or constructi$e trust
c. Constructi$e Trust
(1) & constructi$e trust is a legal fiction by which:
that the D who has wrongfully dis"ossessed the ' of "ro"erty is holding that "ro"erty in trust

(() 7f successful:
a trust is im"osed on the "ro"erty to order for D to return the "ro"erty
(*) 7t differs from re"le$in because:
in constructi$e trust, if the "ro"erty has changed formed, the trust can be im"osed on the new form

EXAMPLE:
Defendant stole a ring from Plaintiff. Defendant t!en sold it for 12>%333. Defendant t!en too) 12:%333
from t!at 12>%333 and used it to purc!ase Blac)acre% and Blac)acre increased in $alue to 1>3%333.
Plaintiff can trace Blac)acre all t!e #a 'ac) to t!e stolen ring. Plaintiff can t!erefore get a
constructi$e trust on Blac)acre and in effect 'ecome t!e o#ner. Defendant #ill 'e forced to con$e
Blac)acre to Plaintiff.
(<) Ta-e note that you cannot trace "ro"erty that is sold to a bonafide "urchaser.
EXAMPLE:
(ame ring e,ample% 'ut no#% Defendant sells Blac)acre to a 'ona fide purc!aser. Plaintiff can no
longer get a constructi$e trust on Blac)acre. -o#e$er% Plaintiff can still get a constructi$e trust on t!at
12>%333.
d. +0uita'le Lien
(1) This is a situation where:
' is allowed to ha$e a lien im"osed on "ro"erty
(() The benefit of either e!uitable remedy:
' becomes a secured creditor
EXAMPLE:
Original ring fact pattern. Plaintiff can sue Defendant for 12>%333% t!e fair mar)et $alue of t!e ring. But
if Plaintiff does so% !e 'ecomes a general creditor. If Plaintiff sues for an e0uita'le remed% !e
'ecomes a secured creditor and t!erefore !as priorit o$er general creditors% and t!ere' a'le to
reco$er first% 'efore ot!er creditors.
(*) #ourts will im"ose a lien:
for the $alue of "ro"erty ta-en
EXAMPLE:
Defendant em'e;;les 1>%333 from Plaintiff and uses t!at mone to ma)e impro$ements to !is !ome% #!ic!
causes !is !ouse to increase in $alue ' 1>%333. Plaintiff cannot claim a constructi$e trust o$er t!e !ome%
'ut could claim an e0uita'le lien o$er t!e propert in t!e amount of 1>%333.
EXAMPLE:
(ame facts as a'o$e% 'ut t!e !ome onl impro$es ' 1:%333. Plaintiff can get an e0uita'le lien on t!e
!ome% 'ut onl for 1:%333. Restitution is concerned #it! t!e 'enefit 'eing conferred.
*. Lo#est Intermediate Balance Rule
EXAMPLE:
2u""ose D embe88les >=,??? from ' and "uts it into his ban- account. 4is account has a balance of >(,???. 4e has
now brought the balance u" to >C,???. 4e then decides to go on a cruise and s"ends ><,??? from the account on the
cruise, so the balance falls to >*,???. .hen he returns, he gets a gift from a relati$e for >1,??? and "uts it into the
account, bringing the balance u" to ><,???. ' now sues. ' can get an e!uitable lien, but is limited to >*,??? under the
Lowest 7ntermediate ;alance Rule.
a. 6nder this rule:
Lowest intermediate balance between the tort and lawsuit is sub%ect to e!uitable lien.
C. Restitutionar Remedies in Contract Cases (OL III.C.)
1. General Rule Recap
a. The general rule of remedies is to com"el the defendant:
to return the reasonable $alue of benefit conferred by ' on the D when it would be un%ust for D to not "ay
(. ?uasi<Contract
a. Huasi@contracts are contracts im"lied in law:
to order a D to "ay reasonable $alue of benefit conferred
b. 4owe$er, the -ey concern is that when this benefit was conferred by mista-e:
reasonable ex"ectation of "ayment from this "erson.
EXAMPLE:
Thief steals a car from '. The car had some defects and minor damage. Thief too- the car to a re"air sho" and had
it fixed u" to loo- brand new. Iust as the re"airs were com"leted, the "olice arri$ed and too- the car bac- to the
owner. There was a reasonable ex"ectation of "ayment from Thief, but not from the rightful owner, who didn1t as-
for this. The re"air sho" can1t force a benefit onto someone. Therefore, there is no !uasi@contract on these facts
alone.
HYPOTHETICAL
#lar- contracts to ha$e Landsca"er "lant trees and shrubs in her bac-yard. #lar- li$es at 1?? Acean &$enue. An the
date of "erformance, Landsca"er by mista-e goes to /itchell1s home at 1??? Acean &$enue and "erforms the
landsca"ing wor-. &fter reali8ing his error, Landsca"er attem"ts to reenter /itchell1s bac-yard to remo$e the
im"ro$ements. /itchell refuses to "ermit Landsca"er to come bac- onto the "ro"erty and threatens to in%ure him if he
does so. 7mmediately thereafter, Landsca"er brings a restitutionary action against /itchell see-ing to reco$er the
reasonable $alue of the trees and shrubs that were "lanted. 2hould Landsca"er "re$ail5
Restitution damages are awarded when ' confers benefits on D and not re"aying ' would un%ustly enrich D. 7f benefits
are conferred by mista-e, -ey concern is whether there was a reasonable ex"ectation of "ayment from the "erson who
is enriched. 4ere, owner is refusing to allow remo$al. 2ome courts ha$e argued that this can be seen as an
acce"tance of benefits by the owner. Ather cases ha$e held that this may be a con$ersion. 7n either case, owner has to
"ay. Restitution allowed
d. &nother area !uasi@contracts arise:
unenforceable contract i.e. due to statute of frauds or discharge, court can order restitution
*. Breac! of Contract
a. & "arty may also see- restitution:
when there has been a breach of contract
(1) The aggrie$ed "arty can elect:
whether to choose restitution damages or ex"ectation damages
(() xce"tion:
where the aggrie$ed "arty has already fully "erformed his or her end of the contract.
BAR EXAM APPLICATION
Question 1
&""licants were as-ed to consider issues arising from breach of a ser$ice contract. /aria, a homeowner, res"onded by
tele"hone to a handbill "osted on her door-nob by Resi@#lean (R#), a com"any offering com"lete housecleaning ser$ices for
>=??. They mutually agreed the ser$ices would be "erformed on ,riday, but on Thursday e$ening, /aria sold her home. .hen
the crew arri$ed ,riday morning, she sent them away. R#1s loss of "rofit was >1??, but R# billed /aria for >=??.
&ssuming /aria breached her contract with R# how much, if anything, does /aria owe R#5
&""licants must discuss "ossible com"ensation for R#1s ex"ectancy interest, as well as any conse!uential damages or
incidental damages.
From the July 2006 California Bar Exam
Damages award for breach of contract are supposed to place the in the same position that would ha!e been "# if the
contract had been performed. Assuming Maria is liable, RC would not be entitled to $500. They would only be entitled
to $500 if they had fully performed the contract. They would receie their lost profits and costs e!pended to date,
which is $"00 here.
BAR EXAM APPLICATION
Question 2
&""licants were "resented with damages issues arising from a wrongful death. Iac- owned the world1s largest uncut diamond,
worth >1 million uncut, but "otentially >* million if cut into finished gems. & master diamond cutter, #hi", agreed in writing to
underta-e the ris-y tas- of cutting the diamond for com"ensation of >1??,???, "ayable u"on successful com"letion. 4owe$er,
before beginning the %ob, #hi" died as a result of being hit by a negligent dri$er, .ilbur. #hi" left a widow, /elinda.
.hat damages, if any, may /elinda reco$er against .ilbur5
&""licants must consider elements of com"ensatory damages for wrongful death, including such items as #hi"1s "otential
future earnings, loss of consortium, medical and funeral ex"enses, and /elinda1s emotional distress at being widowed.
From the July 200$ California Bar Exam
Conse%uential damages ha!e to be foreseeable and certain& "n a wrongful death action' lo!ed one sues for damages suffered
for loss of lo!ed one& (t issue here is whether )*00000 is sufficiently certain to be awarded for the wrongful death action& +e
are told that )*00000 would ha!e been paid only on completion of a ris,y procedure& Damages may be too speculati!e to
perform& -elinda won.t get the )*00000 lost due to Chip.s death but the loss of profits' pro!ided it is not speculati!e&
IV. EQUITABLE REMEDIES
A. Introduction
Traditional re!uirement for e!uitable relief was that legal remedy was inade!uate. The "rime e!uitable remedy in torts is an
in%unction, and in contracts is s"ecific "erformance.
B. +0uita'le Remedies in Tort Cases (OL I8.C.)
1. In=unctions
a. Definition
(1) &n in%unction is a court order:
e!uitable relief designed to order a "erson or entity to refrain rom doing an act or do a "articular act

b. T!ree Tpes of In=unctions
(1) The three ty"es of in%unctions are:
(a) tem"orary restraining order
(b) "reliminary in%unction
(c) "ermanent in%unction
c. Temporar Restraining Orders (TROs) and Preliminar In=unctions
(1) These are most li-ely to arise in situations:
where the ' is facing some immediate harm that could de$elo" $ery soon
EXAMPLE:
D 'uilds a 'uilding on P&s propert% and P is suing to end D&s encroac!ment. -ere% t!e court doesn&t
need to #orr a'out a temporar restraining order or preliminar in=unction 'ecause t!ere no
immediac of !arm5t!ere is time to litigate.
EXAMPLE:
D and P are neig!'ors. D announces plans t!at e$er #ee)end nig!t% starting t!is upcoming #ee)end%
!e intends to conduct parties in !is 'ac)ard t!at !e #ill c!arge people to attend% #!ere t!ere #ill 'e
'ands plaing loud music and #!ic! #ill go late into t!e nig!t. P doesn&t #ant t!is. -ere% a TRO or
preliminar in=unction #ould 'e #arranted.
(() TRAs are issued most often ex parte at the $ery onset of litigation, in order to maintain the status !uo. The
"laintiff will be entitled to a TRA:
where the ' can show that there is a li-elihood of immediate harm and we need to ta-e action to
maintain the status !uo
(*) Duration
(a) TRAs are $ery short duration in%unctions, often granted for only:
1?@(? days
(<) Bond
(a) An granting a TRA or "reliminary in%unction "ending a final decision on the merits, the court or %udge will
re!uire:
&""licant to "ost a bond for the "ayment of any damages that the "arty en%oined may sustain by reason
of the in%unction
(=) Preliminar -earing
(a) .hen a TRA has been issued ex parte:
Then, the court conducts a "reliminary hearing
(b) & "reliminary in%unction is issued to maintain:
The status !uo until a full hearing can be held to determine if the in%unction should be "ermanent
(c) The following must be "ro$en for a "reliminary in%unction to be issued:
1) 'robability of "re$ailing on merits
() 7rre"arable in%ury if the "reliminary in%unction is not issued
*) ;alancing of interests fa$ors the '
<) 'ublic interest fa$ors the granting of relief
(d) 6nder an alternati$e test, the "laintiff has the o"tion:
stablishing the sliding scale test
1) 6nder the sliding scale test, the greater the "otential irre"arable in%ury to the "laintiff if the in%unction
is not granted:
The lesser the re!uired showing of "re$ailing on the merits
d. Permanent In=unctions
(1) & "ermanent in%unction is issued at a full hearing on the merits:
' must ha$e "re$ailed on the substanti$e claim and shown a need for continuing "rotection to be
eligible for "ermanent in%uncti$e relief
(() .i$e<Point Test
(a) 7nade!uate legal
(b) 'ro"erty right
(c) ,easibility
(d) ;alancing
(e) Defenses ha$e to be considered
1) )ote that while the first four are elements to be "ro$en:
/ust consider defenses in the analysis
(f) *nemonic De$ice@
I am Passing the .uc-ing Bar, Damnit
(*) Inade0uate Legal Remed (OL I8.B.)
(a) & legal remedy could be inade!uate because:
1) Damages too s"eculati$e to "ut a dollar $alue on it
() /ulti"licity of suits
*) #ontinuing harm
<) .hen sub%ect matter of the contract in$ol$es real "ro"erty
a) Land is uni!ue
=) irre"arable in%ury
a) This arises when damages ha$e not yet occurred:
but will occur and cannot ade!uately com"ensate for the harm when it occurs
EXAMPLE:
#oca@#ola buys commercial time for a national s"ot it intends to broadcast at the end of the first
!uarter of the next 2u"er ;owl. 'e"si then contacts the networ- in charge of the 2u"er ;owl and
con$inces them to "ull out of their deal with #oca@#ola and instead run a 'e"si commercial in its
"lace. #oca@#ola wants to sue for an in%unction to sto" 'e"si from doing this. This is an irre"arable
in%ury. #oca@#ola has not yet suffered damages, but will suffer harm if their commercial does not
run, and it will be $ery hard to measure %ust what those damages are.
(<) Propert Rig!t
(a) Today, many %urisdictions ha$e abolished the "ro"erty right. Those which retain it:
ha$e so ex"anded the definition of "ro"erty right that anything !ualifies
(b) &ny interest:
you ha$e will !ualify as a "ro"erty right
(=) .easi'ilit (OL I8.B.)
(a) The first -ey feasibility concern is a %urisdictional concern. This is only really a concern:
for ci$il "rocedure, where D is outside the state or the in%unction would tell D to do or not do something
outside the state
(b) The second -ey feasibility concern:
Two ty"es of in%unction that are issued
1) & mandatory (affirmati$e) in%unction:
com"els D to do something
() & "rohibitory (negati$e) in%unction:
com"els D to sto" doing something
(c) /andatory in%unctions "resent a feasibility concern because courts:
would ha$e to su"er$ise D1s "erformance
(B) Balancing (OL I8.C.)
(a) Two -ey concerns:
.hat is balanced and when it ta-es "lace
(b) .hat is balanced5
1) The harm to the "laintiff if no in%unction is issued is balanced:
&gainst the burden on the defendant if the in%unction is issue
(c) .hen does balancing ta-e "lace5
1) ;alancing always ta-es "lace unless:
The D1s conduct is willful.
HYPOTHETICAL
The 6.2. )a$y uses sonar during training exercises in the waters off the coast to "re"are stri-e grou"s to detect, trac-, and
neutrali8e enemy submarines. :rou"s and indi$iduals de$oted to the "rotection of marine mammals and ocean habitats assert that
the sonar causes serious in%uries to these animals. $en if these "laintiffs ha$e demonstrated a substantial li-elihood of irre"arable
in%ury, may such in%ury be outweighed by the go$ernmental and "ublic interest in effecti$e, realistic training of sailors in national
defense, "re$enting issuance of an in%unction5
This hy"o as-s us to use the balancing test and examine what would ha""en to ' if in%unction is not grant . &re there
other ways to train the sailors5 .hat is the short@term and long@term effect on marine life5
(C) Defenses (OL I8.D.)
(a) The two most fre!uently tested defenses are:
1) Latches
() 6nclean hands
(b) Lac!es
1) Laches arises when a "laintiff:
6nreasonably delays asserting rights and the delay "re%udices defendant
() Do not confuse this with statute of limitations. This is "rimarily a "re%udicial
harm concern.
*) The focus is less on the timing as:
're%udicial harm concern
(D) 6nclean -ands (OL I8.D.)
(a) 6nder this defense, if the "laintiff has committed some wrongful conduct which has in%ured the defendant
with res"ect to the dis"ute currently between the "arties:
The '1s hands are not clean
(b) The wrongful conduct by the "laintiff:
.hich has in%ured the D in connection with dis"ute between the "arties
EXAMPLE:
Defendant in some way was bac-ing out of a business deal with 'laintiff, and 'laintiff sought an
in%unction. .hile see-ing this in%unction, 'laintiff got into a car accident with Defendant. This would not be
unclean hands+the two are unconnected.
C. +0uita'le Remedies in Contract Cases
1. (pecific Performance (OL I8.C.)
a. & s"ecific "erformance decree:
!uitable decree that is issued in res"onse to a breach of contract
(1) 7t com"els:
;reaching "arty to "erform his or her to "erform his or her contractual obligations
b. .i$e "e Concerns
(1) Definite and certain contract
(() 7nade!uate legal remedies
(*) ,easibility
(<) /utuality
(=) Defenses
(B) *nemonic De$ice@
Do I ,rame / DiplomaA
c. Definite and Certain Contract
(1) 7t must be established that:
&n enforceable contract
(() The concern is that:
7t needs to be definite and certain enough so that court can instruct the wrongdoer what to do

(*) T!ree Pro'lems in Land<(ale Contracts
(a) /ar-etable title
1) 7n e$ery land@sale contract:
7m"lied co$enant of mar-etable title unless the "arties ex"ressly state otherwise
() 7f a seller see-s s"ecific "erformance:
/ust ha$e mar-etable title to the land
(b) Time of the essence contract
EXAMPLE:
;uyer contracts to buy "ro"erty from 2eller for >1??,???, to be "aid in fi$e e!ual installments, and the
"ro"erty is not to be con$eyed until all fi$e "ayments are made. The contract s"ecifically states that time
is of the essence and this is enforceable. ;uyer ma-es first three "ayments on time, and then is four days
late on the fourth "ayment. ;ecause of this tardiness, 2eller refuses to go through with the deal. ;uyer
see-s to sue for s"ecific "erformance in this regard. ;uyer can sue if the ;uyer tenders the "erformance
within a reasonable time and denial of s"ecific "erformance would result in substantial harm to the
breaching "arty. ;uyer1s substantial harm would be full forfeiture.
(c) &batement situation
1) This arises when it is determined that for some reason:
The land that the seller is "romising to con$ey is not what was "romised
EXAMPLE:
;uyer contracts with 2eller to buy a 1??@acre "arcel of land of ;lac-acre. 7t turns out the "arcel is FD acres,
not 1??. #ould there be s"ecific "erformance if ;uyer tries to bac- out5 7t de"ends on who is see-ing. 7f
the ;uyer is see-ing, then yes, there will be s"ecific "erformance with an abatement of "urchase "rice,
because ;uyer has decided he still wants the "ro"erty. 7f 2eller is see-ing, it de"ends on whether or not
the defect is material or minor. & buyer can1t be forced to buy "ro"erty with a material defect.
d. Inade0uate Legal Remed (OL I8.B.)
(1) Legal remedy must be inade!uate. li!uidated damage clause does not ma-e legal remedy is ade!uate.
inade!uate remedies can arise from irre"arable harm, s"eculati$e nature of damages, or if you are dealing
with real "ro"erty
e. .easi'ilit (OL I8.C.)
(1) Iurisdictional concerns similar to Torts cases
(() Jou cannot s"ecifically enforce a "ersonal ser$ice contract. This is because:
7ndentured ser$itude is not constitutional
(*) & "laintiff can still "re$ent a defendant from wor-ing for anybody else in o""osition:
n%oining a breach of negati$e co$enant
(a) 7m"lied into a "ersonal ser$ice contract is:
)egati$e co$enant that D would not wor- for someone else
EXAMPLE:
& little -nown roc- grou" signs a contract with a concert "romoter to "erform a concert on a gi$en night
for >=,???. &fter signing, but "rior to the date of "erformance, the roc- grou" releases an album which
shoots to the to" of the charts, and now the band has become a hot commodity, commanding as much as
>=?,??? "er a""earance. They contact the "romoter and demand more money. The "romoter refuses.
The roc- grou" then signs a contract to "erform a concert for a ri$al on the same night for >=?,???. The
first concert "romoter learns of this and sues. The court can1t force "erformance, but can sto" the roc-
grou" from "erforming for the ri$al "romoter by en%oining a breach.
f. *utualit
(1) &t common law, mutuality meant that the "laintiff:
could only get s"ecific "erformance against D if D could get the same
EXAMPLE:
A contracts to 'u a uni0ue ring. Legal remedies in t!is situation are inade0uate% 'ecause t!e ring is
uni0ue. B!ile t!e 'uer could get specific performance due to t!e uni0ueness of t!e =e#elr% t!e seller
could not% 'ecause mone damages are ade0uate. Bit!out t!e e,istence of mutualit% no specific
performance #ould 'e a$aila'le at common la# at all.
(() Today, mutuality is established if the "arty see-ing "erformance has either:
(a) 2ubstantially rendered "erformance
(b) #an assure that "erformance will be rendered
EXAMPLE:
2ame facts as the uni!ue ring exam"le. The buyer could "ut money into an escrow account. This is
satisfactorily ensuring the buyer1s "erformance, because the buyer is "utting his "erformance somewhere
where he cannot reach it.
(*) .at!er<(on -pot!etical
(a) Thin- bac- to the earlier hy"othetical in$ol$ing the father and son, and the estate con$eyance. The son
could not see- s"ecific "erformance to force the father to con$ey the estate because:
the son cannot assure that s"ecific "erformance will be rendered
g. Defenses (OL I8.D.)
(1) 7n addition to laches and unclean hands, two additional defenses are:
(a) 4ardshi"
1) 7f enforcement of the contract would an undue hardshi" on the defendant:
because of '1s su"erior bargaining hardshi", then s"ecific "erformance will not be ordered
EXAMPLE:
&1s relati$e dies, lea$ing her entire estate to &. &, -nowing nothing of wine, goes to the home, locates
the wine cellar, and finds a rare, old wine. & then goes to a local ex"ert who -nows what it is worth,
but the ex"ert tries to cheat & and gi$es him a bad estimate of the wine1s $alue. &fter entering into a
contract to sell the wine to the ex"ert, & learns the true $alue and bal-s at the deal, leading to the
ex"ert suing for s"ecific "erformance. :ranting s"ecific "erformance would wor- an undue hardshi"
because of the ex"ert1s su"erior bargaining "osition.
(b) !uitable esto""el
1) 6nder this defense, where "laintiff has engaged in some action or inaction:
then ' may be esto""ed from asserting e!uitable rights.
HYPOTHETICAL
E owns a golf course. J owns a business that abuts the golf course. During construction of the course, J "rotested E1s "lan to
construct homes on the course that would border J1s "ro"erty. 7n res"onse to J1s ob%ections, E ga$e J choices of what would
border J1s "ro"erty. J selected a fairway for a certain hole. &fter the course o"ened, J sought an in%unction re!uiring a
redesign of that hole because golf balls were landing on J1s "ro"erty. 2hould J be e!uitably esto""ed from obtaining an
in%unction5
!uitable esto""el can be used when ' has engaged in some action or inaction that has induced the defendant to ta-e action
that is now basis of the challenged. J will be esto""ed here since J chose the fairway in the first "lace.
BAR EXAM APPLICATION
Question 3
&""licants were as-ed to analy8e issues arising from a contract for the sale of a rare "iece of art. 'aula was commissioned by
/useum to find and "urchase certain original "aintings. 'aula learned that the wor-s were in the hands of "ri$ate collectors
and had not been sold on the mar-et for years, but she located a "ri$ate collector, 2ally, who "ossessed three "aintings that
/useum desired. 2ally agreed to sell any one of the three to 'aula for >(??,???. 'aula did not disclose that she re"resented
/useum, e$en when 2ally mentioned that she only sold to other "ri$ate collectors and e$en though 'aula had to consult with
/useum before ma-ing the final selection. .hen 2ally learned from a wire transfer of funds that /useum was actually the
"urchaser, she refused to surrender the selected "ainting to 'aula.
#an 'aula obtain s"ecific "erformance of 2ally1s agreement to sell the "ainting5
&""licants must consider, in addition to issues regarding the enforceability of the oral contract, whether s"ecific "erformance is
an a$ailable remedy on these facts, and whether 2ally could raise e!uitable defenses.
From the July 200/ California Bar Exam
0pecific performance may be granted as a remedy for breach of contract& 1ere there is a breach of contract between 0 and
for the sale of a rare piece of art& +e need to consider whether specific performance can be granted for breach of contract'
which has 2 elements3 definite and certain contract' inade%uate legal remedy' feasibility' mutuality and defenses& 4here does
not seem to be much issue here with regards to contract& Dollar damages may be ade%uate but it was a rare piece of art so
legal remedy may be inade%uate& 4here do not seem to be feasibility 5 6urisdictional problems& (s for mutuality concerns'
can assure her payments by putting it in an escrow account and here' she seems to ha!e wired the money& (t issue is
whether' 0 can argue defenses because misrepresented her position at the museum and whether this is sufficient to be
considered unclean hands&
BAR EXAM APPLICATION
Question 4
&""licants were as-ed to e$aluate both legal and e!uitable remedies for breach of a contract for land. 2tan and ;arb entered
into a $alid written contract whereby (1) 2tan agreed to con$ey ;arb 1?? acres of agricultural land and water rights in an
ad%acent stream, and (() ;arb agreed to "ay 2tan >1??,???. Two wee-s before the con$eyance was set to ta-e "lace, 2tan
called ;arb and told her the deal was off because he had been offered >1*?,??? for the land from another "arty. The next day,
;arb disco$ered that 2tan has title to only F? acres of the land, and that he does not ha$e water rights to the stream. 7t would
cost >1=,??? to "urchase such rights from their true owner.
.hat e!uitable and contractual remedies may ;arb see-, and what is the li-ely outcome on each5
&""licants must ex"lain how ;arb1s damages would be calculated for 2tan1s breach, and discuss the re!uirements for s"ecific
"erformance, including the a$ailability of an ade!uate remedy at law, and how the "urchase "rice would be abated for the
deficiencies if ;arb can re!uire 2tan to con$ey the "ro"erty.
From the July 2002 California Bar Exam
7E-E-BE7 D7E 5 Damages' 7estitution and E%uitable 7emedy& Facts indicate enforceable contract exists& Damages for
contracts are designed to restore the plaintiff to her original position as if the contract had ne!er been breached& 4he damages
would be to cost to Barb to purchase land to meet her needs plus her conse%uential damages&
4here appears to be no restitution damages her as Barb ne!er did anything in reliance of the sale of land&
+e need to consider whether specific performance can be granted for breach of contract' which has 2 elements3 definite and
certain contract' inade%uate legal remedy' feasibility' mutuality and defenses&
0pecific performance re%uires definite contract' which we ha!e here' but we need to discuss whether there should be an
abatement of the purchase price to show that the land was not as ad!ertised& "f the buyer is see,ing specific performance' then
specific performance would be ordered& "f seller is see,ing an abatement' then seller would need to show material breach&
1ere' it is the buyer so specific performance would be ordered if the buyer agrees to buy the land despite the fault&
"nade%uate legal remedy is not a problem because land is uni%ue& Feasibility is not an issue as there seem to be no
6urisdictional issue& Barb can assure payment by placing her payment for the land in an escrow account so there is mutuality&
4here seems to be no ade%uate defense for 0tan&
+hen seller breaches contract for the sale of property' buyer may reco!er the mar,et price minus the contract price& "f the
mar,et price is )*80'000' buyer should reco!er )80000 as a result of the breach&