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I. EQUITABLE REMEDIES

On a bar exam question, especially those concerning the subjects of contracts and/or real property, make

certain that you separate legal remedies from equitable remedies.

A. Historically, courts were of two types: courts of law, in which litigants sought monetary damages, and courts of equity, in

which litigants sought other forms of relief as appropriate to the situation. he !ederal "ules of #i$il %rocedure merged law

and equity actions into the &ci$il action.' Howe$er, courts generally prefer to award monetary damages rather than

equitable relief.

B. !or equitable relief to be awarded, equitable jurisdiction must exist(that is, the dispute must be one traditionally cogni)able

in equity. *s a general rule, equitable jurisdiction exists onlywhen:

+.

a. here is no general formula for determining when a legal remedy is inadequate.

. he two most common forms of equitable relief are:

a.

-+ his form of relief is most likely to be seen:

b.

-+ his form of relief is generally sought:

C. Specific Performance and Injunctions-O 0.1

+. Specific Performance

a. his form of relief is likely to be seen in an essay addressing:

b. 2pecific performance will not be a$ailable with personal ser$ices contracts, where a contract is of a personal ser$ice

nature3 you cannot force somebody to do something they do not want to do.

. he injunction is the most common form of equitable remedy. *n injunction is a court order directed to a person or entity

to do -a mandatory injunction or refrain from doing -a prohibitory injunction a particular act. *n injunction will bind

the parties to the action, their officers, agents, ser$ants, employees, and attorneys, and those persons or entities in

acti$e concert or participation with them so long as such persons and entities recei$e actual notice of the injunction.

0njunctions are enforceable through a court4s contempt power.

5. One can seek a temporary injunction -often referred to in the federal system as a preliminary injunction and/or a

permanent injunction. here is no de$ice called a temporary restraining order in !lorida state court practice, although it

is possible to obtain a temporary injunction on an ex parte basis in limited circumstances.

D. Equitable Remedies for Contract Actions

+. uiet !itle Action

a.

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. Rescission

a. he effect of rescission is:

b. here are many grounds for rescission, including:

-+ misrepresentation3

-a *n innocent misrepresentation is not an actionable tort. *s such, there is no reco$ery at law for moneydamages. 9hen an innocent misrepresentation is in$ol$ed, the plaintiff needs to show that the

misrepresentation was material and that she reasonably relied upon it.

- mistake3

-a

Example:

%laintiff is bidding on a contract and makes a miscalculation when composing his bid so that it would be an

unreasonable hardship to force him to perform under the bid price.

-5 illegality3

- lack of capacity3

-; impossibility of performance3 and

-

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B. $onetary Remedies

+. Compensatory Dama%es

a. his remedy pro$ides an award of damages in the form of a money judgment to the aggrie$ed party to compensate

for any loss or injury. 0t is recogni)ed as a substitutionary form of relief in that it gi$es the plaintiff money as a form

of compensation.

-+ 0n tort cases, the definition is as follows:

-a #ompensatory damages in tort situations include:

+ actual/medical expenses3

pain and suffering3

5 loss3 and

emotional harm.

- 0n contracts cases, the definition is as follows: the objecti$e of damages is not only to compensate for loss but

also to protect the plaintiff4s expectation interest by awarding a sum of money equi$alent to what he would

ha$e recei$ed had the contract been performed.

9hen faced with a question which asks what damages are a$ailable, delineate between the equitableremedies and the remedies at law and list which are a$ailable.

. &iquidated Dama%es

a. iquidated damages are those pro$ided for by contract between the parties. hey are appropriate when the parties

anticipate that a breach of the underlying contract may occur but that damages in the e$ent of such a breach would

be difficult, if not impossible, to calculate.

EXAMPLE:

>ohn is going to con$ey ?lackacre to ?ob, and ?ob needs to get a mortgage to afford the property. he contract

between >ohn and ?ob includes a pro$ision acknowledging that, because of the financing issues, ?ob might be

unable to get a mortgage, and therefore if ?ob cannot get a mortgage, >ohn will keep the deposit. his is a

liquidated damages clause.b. *$ailability

-+ iquidated damages must be:

- o be enforceable, the liquidated damages pro$ision:

EXAMPLE:

As in the facts abo'e( bein% able to )eep a deposit is li)ely to be a reasonable prediction of dama%es.

A pro'ision *hich required Bob to pay +,-(--- or +-(--- if he *as unable to %et financin% *ould

li)ely be held unreasonable.

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