Remedies outline tort remedies


Modernly courts will reject



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Modernly courts will reject the mutuality of remedy argument if it feels secure that the P will perform.

  • Mutuality of Performance – In granting specific performance courts will require simultaneous performance.

  • Feasibility of Enforcement

    1. Personal Services – will NOT be enforced because of enforcement problems and the prohibition against involuntary servitude.

    2. Covenant Not to Compete – Enforceable if:

      1. The services are unique, AND

      2. The Scope (geographic and duration) is reasonable.

  • Defenses

    1. Equitable defenses

      1. Laches / Unclean Hands

      2. Unconscionability – Must have procedural and substantive.

        1. Tested at the time of contract formation

    2. Contract defenses

      1. Mistake

      2. Misrepresentation

      3. Statute of Frauds

        1. Exception – Part Performance

        2. How to spot:

          1. Contract must involve land (land sales K or testamentary disposition of land)

          2. K will have been oral

          3. D now raises SOF as a defense to specific performance

        3. RULE: If one has rendered (1) Valuable part performance, (2) in reliance on K

        4. Two of the following must be met (land sales)

          1. Payment (whole or part)

          2. Possession

          3. Valuable Improvements

          4. Valuable Services (modern trend)




      1. RECISSION – Original K is considered voidable and rescinded. (Good, Dog)

        1. Grounds for rescission

          1. (1) Mistake, (2) Misrepresentation, (3) Coercion, (4) Undue influence, (5) Lack of capacity, (6) Failure of consideration, (7) Illegality, (8) Duress

            1. All relate to formation (i.e. K is never validly formed)

          2. Mistake

            1. Mutual mistake

              1. Material fact – rescission granted

              2. Collateral fact (going to quality, desirability, or fitness of property for a particular purpose) – rescission denied

            2. Unilateral mistake – Rescission denied

              1. Exception – The non-mistaken party knows OR should know of the mistake. (i.e. contractor receiving a drastically lower bid)

              2. Modern Trend Exception – Mistaken party would suffer undue hardship if there is no rescission

          3. Misrepresentation – Rescission granted

            1. Note – P must show that they have actually relied upon misrepresentation

        2. Defenses – Determine if there are valid defenses

          1. Unclean Hands / Laches

          2. Note – Negligence of P is NOT a good defense

        3. Two Rescission Notes

          1. Election of Remedies – If both rescission and damages remedies are available, P should sue for both at the same time. If P sues for damages first, this is regarded as an affirmance of the K and rescission is NO longer available.

            1. Note - must elect the preferred remedy before judgment

          2. Availability of Restitution – If P, who is entitled to rescission, has previously rendered performance on the K, he can get compensated for it or get the property back via restitution.




      1. REFORMATION – Changes the written agreement to conform with the parties' original understanding. (Very, Good, Dog)

        1. Valid K Determine if there is a valid contract.

        2. Grounds for reformation

          1. Mistake

            1. Mutual mistake – Reformation granted

            2. Unilateral mistake – Reformation denied

              1. Exception – where the non-mistaken party KNOWS of the mistake (fraud or inequitable conduct)

                1. Note – Unlike the rescission exception, the non-mistaken party must actually know of the mistake. (Not should have known)

          2. Misrepresentation – Reformation granted

            1. This is available for BOTH innocent and intentional misrepresentations.

              1. Policy – Rewriting reflects the expressed intent of the parties

        3. Defenses – Determine if there are valid Defenses

          1. Unclean Hands / Laches

          2. BFP – Reformation is not allowed where it would adversely affect the rights of a subsequent BFP

          3. NON Defenses to Reformation

            1. Negligence of P

            2. Statute of Frauds

            3. Parol Evidence Rule




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