Equity

Question 1

What 5 requirements must a P show to obtain injunctive relief?

Answer 1

1. legally recognized right is being or about to be infringed
2. there is no adequate remedy at law
3. feasibility – injunction is feasible and will effectively vindicate right
4. hardship to D does not greatly outweigh the benefit to P
5. no defenses are available

Question 2

What must a court have to issue an injunction?

Answer 2

Personal Jurisdiction over the defendant

Question 3

What is a mandatory injunction?

Answer 3

D must perform a particular act

Question 4

What is a negative injunction?

Answer 4

D must cease performing a particular act

Question 5

What are the most often encountered tort situations where an injunction may be granted?

Answer 5

1. Private Nuisance
2. trespass to land – where trespass is continuous
3. waste
4. Conversion or Trespass to chattels
5. Invasion of Privacy
6. Defamation
7. Abuse of Judicial Process
8. Unfair Competition
9. Infliction of Physical Harm

Question 6

What is a private nuisance?

Answer 6

The use of one’s property in an unreasonable fashion so as to interfere with another’s enjoyment of their property (limited to injury of a few ppl for private nuisance)

Question 7

When may an individual enjoin a public nuisance against the general rule?

Answer 7

When the individual has suffered a special injury not suffered by the general public

Question 8

What is a public nuisance?

Answer 8

Nuisance that damages all persons that come within its sphere of operation
**generally only state can seek to enjoin a public nuisance

Question 9

What is ameliorative waste?

Answer 9

acts that result in the increase in the value of land but change its character (ex: historic house torn down to build a skyscraper) – NOT ground for injunctive relief

Question 10

What types of waste are grounds for injunctive relief?

Answer 10

1. Destructive – positive acts cause permanent harm to land

2. Permissive – not taking care of land

Question 11

What are the various types of unfair competition?

Answer 11

1. Trade Libel
2. Inducing breach of K OR refusal to deal
3. Use of competitors trade secrets
4. Trademark Infringement
5. Trade Name Infringement
6. Copyright Infringement
7. Patent Infringement
8. Appropriations of Ideas (limited)

Question 12

What factors will a court assess in determining whether a privilege to induce exists? (refers to inducing breach of K or refusal to deal in unfair competition scenarios)

Answer 12

1. What kind of relationship is the D’s conduct affecting?
2. What is the nature of the Conduct? – softer the better
3. What is the relationship b/w the parties?
4. What are the D’s motives?
5. What social interests might be advanced?

Question 13

When will the relationship b/w two parties make an inducement not to deal privileged?

Answer 13

When the parties are competitors

**competitors not privileged to induce breach of K

Question 14

When will a relationship b/w a D and a third party make an inducement not to deal privileged?

Answer 14

When D is/has

1. responsible for third party
2. financial interest in third party
3. when D’s advice is requested by third party

Question 15

What 3 questions will a court ask to determine whether the use of a competitors trade secret is enjoinable?

Answer 15

1. Is the property a trade secret?
2. How was the trade secret taken? – ct. more likely to enjoin if info taken wrongfully
3. What is the relationship of taker to owner? – ex. if taker is fiduciary of owner ct. will likely enjoin

Question 16

What is a trade secret?

Answer 16

valuable info that give is possessor a competitive advantage if kept secret

Question 17

What is a trademark?

Answer 17

any mark, word, letter, number, design, picture or combination (of the previous) used to designate a product’s identity. (Identifies the product’s source)

Question 18

What Factors are assessed in determining trademark infringement?

Answer 18

1. similarity of marks
2. similarity of goods
3. similiarity of geographical marketplace
4. similarity of type of marketplace
5. similarity of customers
6. similarity of price
7. Is there intent to cause confusion by second/infringing mark proprietor

Question 19

What is a trade name?

Answer 19

Identifies the source of goods, services or businesses

Question 20

What must be true of and Idea for injunctive relief to be granted to protect it?

Answer 20

Idea must be:

1. novel
2. commercially useful
3. reduced to some concrete form or outline

Question 21

What types of legal remedies may be inadequate allowing an equitable remedy to be granted?

Answer 21

1. money damages
2. replevin
3. ejectment – if sheriff refuses to act

Question 22

What factors make money damages inadequate?

Answer 22

1. damages are speculative
2. D is insolvent
3. Irreparable Injury
4. Multiplicity of actions
5. No right to damages

Question 23

What 2 main factors will a court asses in determining whether an equitable remedy is feasible?

Answer 23

1. Complexity of Act to be performed – more complex act is to perform the more hesitant court will be to act
2. Continuous Acts - more supervision needed more hesitant court will be to act

Question 24

What 3 steps will the court take to determine whether a proposed injunction will place an undue hardship on the D?

Answer 24

1. first ask will the injunction pose a undue burden on D
2. next weigh the hardship against the benefit to be gained by P
3. IF hardship incurred by D is considerable greater than benefit to P ct. will usually not issue injunction and order money damages instead

Question 25

When will the court NOT balance the benefit to P against the hardship/burden to D?

Answer 25

1. When D's conduct is willful | 2. When P has already asserted their claim/right and D still proceeds

Question 26

What are the main equitable defenses?

Answer 26

1. Unclean Hands -- P acted improperly 2. Laches 3. Estoppel 4. Impossibility 5. Hardship (balancing) 6. Freedom of speech -- defamation cases

Question 27

What are the 2 requirement of a Laches defense?

Answer 27

1. unreasonable delay in bringing the claim under the circumstances 2. Delay is prejudicial to D * *laches defense may be asserted before SOL period ends, key is prejudice

Question 28

What is the estoppel defense

Answer 28

IF P's acts induce reliance by D who changes his position to his detriment or prejudice, then P may be estopped from asserting a claim against D

Question 29

What are the two types of preliminary injunctions?

Answer 29

1. regular preliminary injunction -- granted after a hearing and remain in effect until the conclusion of a trial 2. temporary restraining order (TRO) -- emergency orders granted until a hearing can be convened

Question 30

What must a party seeking a preliminary injunction show/do?

Answer 30

1. potential for irreparable harm if injunction not granted 2. Likelihood that P will prevail 3. Notice given to D 4. Bond posted

Question 31

What 6 showings/requirement must a P show to obtain specific performance?

Answer 31

1. contract exists 2. all K conditions have been fulfilled 3. legal remedy is inadequate 4. mutuality of remedy exists 5. feasibility 6. no defenses available to D

Question 32

What factors will a court assess in determining whether a K exists? (specific performance)

Answer 32

1. certainty of terms 2. existence of consideration * *parol evidence rule does not apply (allowed)

Question 33

In a wholly executor K, when will specific performance not be granted?

Answer 33

When a time of the essence clause or condition precedent has not been satisfied

Question 34

What is a time of the essence clause?

Answer 34

requires one party to perform within a stipulated period of time

Question 35

What factors will a court weigh in determining whether a partially executed K qualifies for specific performance? (time of the essence clause in K)

Answer 35

2. Is loss to the other party small? 2. Undue hardship 3. waiver 4. Tardiness is De minimis -- only late by a little bit 5. judicial sale

Question 36

When may a vendor/seller seek specific performance if a deficiency (part-performance) is involved?

Answer 36

When the deficiency is minor | **abatement will be available for unperformed portion of K

Question 37

When may a vendee/buyer NOT seek specific performance if a deficiency is involved?

Answer 37

When there is a large deficiency | **S.P. still available where there is a substantial deficiency (which is smaller than a large deficiency)

Question 38

What factors will be assessed in determining whether a legal remedy is adequate in a S.P. situation?

Answer 38

1. Rareness/Uniqueness -- real property (land) always unique 2. D insolvent 3. Damages are speculative 4. Multiple suits necessary

Question 39

What is required for personal property to qualify as unique for S.P. purposes?

Answer 39

1. Unique in kind OR 2. Property of personal significance to Vendee/buyer 3. Property is in short supply

Question 40

What type of contract is S.P. not available?

Answer 40

Personal service contracts

Question 41

What is affirmative mutuality? (mutuality of remedy)

Answer 41

concept that the P should be allowed to enforce the K b/c the D would have been allowed to.

Question 42

For land sale K's, when is enforcement likely not feasible?

Answer 42

When just the seller and the Res (property) are before the court

Question 43

What defenses are available to the D in a S.P. action?

Answer 43

``` General K defenses including: 1. SOF 2. Misrepresentation 3. Mistake AND Equitable Defenses (laches, unclean hands etc.) ```

Question 44

What acts are sufficient part performance that would take a K out of the SOF and making S.P. still available?

Answer 44

1. possession coupled with valuable improvements 2. possession coupled with payment 3. performance of valuable services

Question 45

What must be true of a mutual mistake for it to qualify as a valid defense to S.P.?

Answer 45

Must be a material mistake of fact -- mistake of law not included

Question 46

When will a unilateral mistake suffice as a defense to S.P. against the general rule?

Answer 46

If the non-mistaken party knew or should have known of the mistake

Question 47

What 2 requirements must be met for covenants not to compete to be enforceable?

Answer 47

1. Service must be unique | 2. Covenant must be reasonable

Question 48

What 4 factors are assessed in determining the reasonableness of a covenant not to compete?

Answer 48

1. covenant is reasonably necessary to protect a legitimate interest of employer 2. reasonable geographic scope and duration 3. must not unreasonably burden one party 4. covenant must not harm general public

Question 49

IF there are directions in a will to sell property, when does equitable conversion (E.C.) occur?

Answer 49

E.C. occurs at the death of the testator (person who wrote will)

Question 50

What is the significance of the Uniform Vendor and Purchaser Risk Act?

Answer 50

It places the risk of loss in a land sale contract on the seller UNLESS the buyer had... 1. title OR 2. possession OR 3. K says risk of loss on buyer

Question 51

What is the general effect of rescission?

Answer 51

leaves the parties as though the contract had never been made

Question 52

What are the 2 main grounds for rescission?

Answer 52

1. Mistake | 2. Misrepresentation

Question 53

What are the 3 types of mistakes that qualify for rescission?

Answer 53

1. Mutual mistake of material fact 2. unilateral mistake -- where one party knew of mistake OR where extreme hardship to mistaken party 3. Mistake of law

Question 54

What is required for a rescission action under a misrepresentation theory?

Answer 54

2. material misrepresentation of law or fact 2. actual reliance * *whether misrepresentation intentional or innocent is irrelevant

Question 55

What are the defenses to an action for rescission?

Answer 55

1. general equity defenses | 2. Negligence of Plaintiff

Question 56

What is reformation (of K)?

Answer 56

remedy where a writing that sets forth the agreement b/w parties is changed so it conforms with the original intent of the parties

Question 57

What is the threshold issue that must be dealt with to determine if reformation is an available remedy?

Answer 57

Is there a valid K? If no valid K then reformation not available

Question 58

What are the 2 ground for a reformation action?

Answer 58

1. Mistake -- mutual or unilateral coupled with fraud | 2. Misrepresentation -- intent irrelevant

Question 59

What are the defenses to reformation?

Answer 59

1. general equity defenses | 2. existence of a bona fide purchaser

Question 60

What 3 defenses are not defenses to reformation?

Answer 60

1. P's negligence 2. Parol evidence rule 3. statute of frauds (SOF) -- EXCEPT where reformation would ADD land to the writing

Question 61

When may a donee of an instrument conveying a gift reform the gift instrument?

Answer 61

ONLY if 1. donee detrimentally relied on the gift as conveyed OR 2. donee relied on the original intent of the donor which was incorrectly expressed in the gift instrument