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 only when:
+.

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$ery at law for money
damages. 9hen an innocent misrepresentation is in$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
-<. duress.
6xam questions dealing with rescission are usually based in misrepresentation and mistake.
5. Ejectment
a.


:. Reformation
a. "eformation or &contract re$ision' is an equitable remedy by which a court modifies or alters a written instrument
-e.g., contract or deed. to make it conform to the actual intent of the parties.
II. REMEDIES AT LAW
A. Restitutionary Remedies
+. Quasi"Contract
a. Quasi=contracts, or contracts implied=in=law, are restitutionary actions designed to pre$ent unjust enrichment of the
defendant. Quasi=contracts co$er situations where the parties ha$e not entered into a contract but the court imposes an
obligation on the part of the 1efendant to repay the %laintiff &for goods sold and deli$ered3' or &for work and labor
performed3' or &for money had and recei$ed.'
,. Implied"in"#act Contract
a.


b. Quantum meruit:




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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$ailable, delineate between the equitable
remedies and the remedies at law and list which are a$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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