CA Bar 2009: Remedies
QUESTIONS
Intro
TORT REMEDIES
What is the order of remedy
analysis?
What are the legal tort remedies?
What are the requirements for
compensatory damages?
What level of certainty is required?
What’s required to prove past
losses? Future losses?
What’s the All-or-Nothing rule?
REMEDIES
A. Remedies questions will use words such as: “remedy,” “relief,” or state a specific
remedy.
B. Remedies questions will typically include other substantive law like torts or K’s.
C. Approach:
1. What’s the substantive area of law?
2. What’s the subtopic area of law?
3. Tip: the fact pattern may be susceptible to more than one substantive law
interpretation, ie torts and K’s—discuss both sets of remedies on the essay.
4. Make sure that P has a case.
5. What remedies require discussion?
a. Do substantive law first
b. P will always win the lawsuit in order to get remedies.
6. Order of Remedy Analysis:
a. Legal Restitutionary Remedies
b. Restitutionary Remedies
c. Equitable Remedies
D. Tip: essays will have 3-4 remedies at issue generally
A. Legal: Damages
1. Compensatory Damages
a. Based on the injury to the P: put P in the position he would’ve been in had the
injury not occurred
b. Requirements:
1) Causation
2) Foreseeability and Proximate Causation (injury must’ve been foreseeable
at the time of the tortuous act.)
3) Certainty of Damages: damages cannot be too speculative.
4) Mitigation: P must take reasonable steps to mitigate damages.
c. Tips:
1) Past losses must be established w/ more certainty than future losses—we
expect past losses to be established w/ almost near certainty.
2) In old vs new businesses, a historical record of an “established” biz will
be more helpful in proving reasonable certainty of damages.
3) All or Nothing Rule: for future damages, P must show that they are more
likely to happen than not, ie are the odds better than 50-50?
2. Compensatory Damages + Personal Injury Torts
a. Economic losses (ie economic losses) must be proven w/ sufficient certainty
b. Non-economic losses (ie pain and suffering, permanent disfigurement) need
not be proven per the basic certainty rules. The jury can award whatever it
wants.
c. Rule: award must be a single lump-sum payment. There’s no such thing as an
“installment award.”
d. Calculation:
1) Special damages only: award must be discounted to present value
2) Inflation is not taken into account on the bar.
1

Can the award be in installment
payments?
What are the 2 caveats to
calculation?
B. Restitutionary
When are nominal damages
awarded?
When are punitive damages
awarded?
What are the 3 requirements to
PD?
What is the recent SC decision on
PD?
What are the restitutionary
remedies based on?
What are the 5 types?
Can you award both compensatory
and restitutionary damages?
Can you award PD + restitutionary
damages?
CA Bar 2009: Remedies
3. Nominal Damages
a. Awarded when P has no actual injury; serve to establish or vindicate P’s
rights.
4. Punitive Damages
a. Awarded to punish the D.
b. PD:
1) Follows award of compensatory or nominal damages always (Note:
punitive damages can also be attached to restitutionary damages.)
2) D’s fault must be greater than negligence
3) Awarded relatively proportional to actual damages.
A) SC: PD limited to a single digit multiplier of actual damages unless
conduct facts are extreme.
1. All 5 based on theory that D should not be unjustly enriched.
2. Legal Restitutionary Remedies
a. Restitutionary Damages
1) Based on the benefit to the D.
2) Award is based on the value of the benefit. (Compensatory damages in
contrast, are based on injury to the P).
3) Possible fact patterns:
A) Only compensatory damages are available.
B) Only restitutionary damages are available (though these fact patterns
may include nominal damages.)
C) Both are available, but only 1 can be awarded. Hypo: D steals your
machine and uses it in his business. Discuss both but only award the
larger sum.
4) Punitive Damages can be attached to restitutionary damages as long as
action is in tort.
b. Replevin
1) Action to regain possession of specific personal property.
2) Requirements:
A) P must have a right to possession.
B) D must wrongfully withholds.
3) Possible Fact Patterns
A) If P recovers the chattel before the trial, P:
i. Will have to post a bond to cover the risk that D will win at
trial and suffer losses in the interim
ii. D can defeat an immediate recovery by posting a redelivery
bond to cover the risk that P will win at trial and suffer
losses in the interim.
iii. NB: Sheriff repossesses the property for P if P is entitled to
replevin.
B) Tip: Replevin is almost always coupled w/ compensatory or
restitutionary damages for lost use or benefit to the D during the
time of detention.
c. Ejectment
1) Action to regain possession of specific real property.
2) Requirements:
A) P must have a right to possession
B) D must wrongfully withholds by having wrongful possession of the
property
3) Possible Fact Patterns
2

What is replevin?
What are the requirements for it?
What happens if P recovers the
chattel before trial?
Replevin usually goes hand in hand
w/ what other damages?
What is ejectment?
C.
What are the requirements for
ejectment?
What is ejectment often coupled
with?
Can you couple ejectment w/ PD?
What is a constructive trust?
CA Bar 2009: Remedies
A) D is an adverse possessor.
B) D is a holdover tenant at expiration of lease terms.
C) NB: Sherriff ejects.
D) Tip: Ejectment is almost always coupled w/ compensatory or
restitutionary damages for lose use or benefit to D during time of
wrongful withholding.
E) Tip: Holdover tenants don’t lead to punitive damages.
3. Equitable Restitution
a. Constructive Trusts: imposed on improperly acquired property to which D has
titleto property. D served as a “trustee” and must return the property to P.
b. Equitable Liens: imposed on improperly acquired property to which D has
title. Property will be put up for sale by court order. The monies received go
to the P. If the sale proceeds are less than the fair market value, then judge
will issue a deficiency judgment and can be used to go after D’s assets to
make up the difference.
c. Tip: only works when D has title to the property.
d. Rules:
1) Inadequate legal remedy, ie b/c D is insolvent or for constructive trusts,
the property is unique.
2) Tracing is allowed.
3) Bona Fide Purchasers prevail over Plaintiff. (Then P would try to trace
the purchase price into the bank account and recover the purchase price.)
4) P will prevail over unsecured creditors w/ constructive trusts.
A) NB: to the extent that you have a deficiency judgment in connection
w/ an equitable lien, you stand on equal footing w/ other unsecured
creditors.
e. Choosing b/t the constructive trust and equitable lien:
1) If property value goes up  constructive trust
2) If property value goes down  equitable lien
3) When D’s property cannot be traced solely to P’s property, then only
equitable lien is available.
Equitable Remedies: Injunctive Relief
1. D is enjoined to do or refrain from doing something.
2. Permanent injunction or preliminary injunction?
a. Permanent: issued after full trial on merits
b. Preliminary (temp, interlocutory): issued pending trial on the merits.
c. Tip: if in doubt, go w/ permanent.
3. Preliminary Injunction
a. Requirements:
1) P must establish irreparable injury will occur during the time spent
waiting for trial—P needs relief now
A) NB: irreparable injury is weighed against any hardships to D during
that time period
2) Establish P’s likelihood of success at the trial (odds are better than 50-
50)
A) Bond requirement: P will have to post bond during the prelim
injunction period to cover risk that D will ultimately win and suffer
in the interim.
b. Model answer:
1) Irreparable injury
2) Likelihood of success
c. Notice + adversarial hearing is typically required (unlike TRO’s).
3

What is a equitable lien?
What must D do in order for P to
bring such an action?
What is necessary to get them?
What happens w/ P’s and BFP’s?
What happens w/ P’s and
unsecured creditors?
How do you choose b/t
constructive trusts and equitable
liens?
What happens when P cannot trace
to solely his property proceeds?
What are the types of equitable
remedies in tort?
What’s a permanent injunction?
What’s a prelim injunction?
What are the requirements of a
prelim injunction?
What is a TRO?
What’s required of a TRO?
CA Bar 2009: Remedies
4. TRO’s
a. Issued pending a hearing to determine whether a preliminary injunction
should be issued.
b. Test for obtaining a TRO: ex parte hearing to get a TRO (typically)
1) Notice is not required
2) Adversarial proceeding is not required
c. TRO’s only last for 10 days. Must have regular prelim injunction hearing
thereafter.
5. NB: it’s very difficult to get any type of preliminary injunctive relief that is
mandatory in form. This is particularly true of TRO’s.
6. Permanent Injunctive Relief
a. 5 part checklist:
1) Inadequate legal remedy alternative
2) Property right/protectable interest
3) Feasibility of Enforcement
4) Balancing of Hardships
5) Defenses
b. Inadequate Legal Remedy
1) Have to show no replevin, ejectment or money damages alternatives
2) No replevin
A) Sheriff might not be able to recover in replevin or ejectment
B) D can file a redelivery bond and then who knows what he’ll w/ it
3) No ejectment
A) Sheriff can’t act or refuse to act—sheriff won’t rip down a structure
4) No money damages
A) Too speculative
B) D is insolvent
C) Irreparable injury (any injury related to unique property, land fam
heirlooms = irreparable)
D) To avoid a multiplicity of actions (bar exam fact will tell you that
there’s a prior history of litigation b/t these two parties).
c. Property right/protectable interest
1) Traditional rule: equity will grant relief only where a protectable property
right is involved
2) Modern rule: a protectable interest will suffice
d. Feasibility of Enforcement
1) Negative injunction: stop doing it
A) No enforcement probs
2) Mandatory injunction: affirmatively perform an act
A) May be an enforcement prob if based on the 1) difficult of
supervision or 2) concerns w/ effective compliance
3) Mandatory injunction fact patterns:
A) Act involves the application of great taste, skill or judgment 
Denied
B) Series of acts over a period of time  denied unless P’s is otherwise
great
C) Out of state act is required  Resident-D: Granted; Non resident-D:
denied.
e. Balancing of Hardships: P’s benefit v D’s hardship
1) Gross disparity b/t benefit and detriment
2) No balancing if D’s conduct was willful
3) If you do balance, consider giving P some money by forcing D to pay for
the costs
4

How is a TRO diff from a prelim
injunction?
How long do TRO’s last for?
What are the 5 parts for permanent
injunctive relief?
7.
What must you knock out to show
inadequate legal remedy?
Why could money damages be
inadequate?
8.
SPECIFIC TORT FACT PATTERN POSSIBILITIES
CA Bar 2009: Remedies
4) Hardship to the public is also taken into account
A) First discuss D’s hardship
B) Second, hardship to the public
C) Third, grant/deny injunction
D) Fourth, award the P money damages
5) NB: balancing of hardship defense is almost always a primary discussion
item when the tort is nuisance or trespass to land
f. Defenses
1) Unclean Hands
A) Available only if P’s alleged improper conduct is related to the
lawsuit
B) This is the “shady P” fact pattern—he’s never done anything honest
except for 1 time, this lawsuit.
C) If no defenses available b/c insufficient facts, say no defenses
available.
2) Laches
A) A “running of a period of time” defense. Unlike the SoL, laches is
concerned w/ the effect of the passage of time.
B) The laches period of time will never be greater than the SoL.
C) Laches Rules:
(1) Clock starts to run when P learns of the injury
(2) Passage of time cuts off the right to relief when it has been both
delay and prejudicial to the D
(3) If laches applies, give P some money
3) Impossibility: impossible for D to carry out terms of injunction
4) Free Speech: if tort is defamation or a privacy publication branch tort
(false light, private facts) – then deny injunction
Miscellaneous Injunctive Relief Probs
a. Crimes: equity will not enjoin them. (but check to see if conduct could be
characterized as a tort.)
b. Who is bound by an injunction
1) Parties
2) Employees and agents acting w/ notice
3) Third parties acting w/ notice
c. Erroneous injunction
1) If there’s an erroneous injunction (facts or law have changed and you
wouldn’t get it today)  still have to obey it
2) Then go to court and have it modified or dissolved
d. Contempt: not obeying a court order
1) Civil contempt: coerce into obeying
A) Fines or court can award damages at its discretion
B) Imprisonment—D can only get out by complying
2) Crim contempt
A) Fines
B) Imprisonment—D remains for a set period of time
3) NB: constitutional safeguards apply to crim contempt cases
4) Tip: no civil or criminal contempt for noncompliance w/ a money
judgment (exceptions: alimony, child support)
Tip: injunctive relief is almost always coupled w/ money damages for injuries
incurred in the time period prior to obtaining the injunction.
5
 CA Bar 2009: Remedies
A. Sets of Basic Bar Exam Questions
1. Set 1:
What are the traditional and a. Has P been injured
modern rules on protecting? b. Has D derived a benefit
c. Does P want the property back
d. Does P need an injunction
2. Set 2:

What are the 2 issues on feasibility

a. Do the wrongs related to the past only?  if yes, only damages
of enforcement? b. Do the wrongs relate to the future only?  no damages
c. Do the wrongs relate to both the past and the future?  all possible
B. How to handle compensatory damages measures
What are examples where a 1. P is entitled to compensatory damages that would put him/her in the position he
mandatory injunction would be would’ve been in had this wrong and resulting injury not occurred. On these
denied? facts. . .
C. Personal Injury Torts
1. Compensatory damages
a. Certainty rules apply for economic losses/special damages
b. Certainty rules do not apply for non-economic losses
c. Lump sum payments are discounted for present value
d. Inflation isn’t taken into account
2. Injunctions: only granted for prospective intentional tortious conduct
D. Fraud
1. Damages
2. Constructive trusts/equitable liens
3. NB: always analyze if it should be analyzed as a contracts case and whether PD
should apply
What are the factors used in
balancing?
CONTRACT REMEDIES

A. Legal: Damages
What are the subfactors in B. Restitution:
balancing hardship to the public? 1. Legal:
a. Restitutionary Damages
b. Replevin
When is balancing of hardships c. Ejectment
particularly prevalent? 2. Equitable Restitution
a. Constructive trusts
b. Equitable Liens
C. Equitable remedies
1. Specific Performance
What are the 4 defenses? 2. Rescission
3. Reformation

Legal Damages

A. Compensatory
What is required for unclean 1. Based on injuries to P
hands? 2. Requirements:
a. Causation
b. Foreseeability and proximate cause
c. Certainty
d. Mitigation
3. Consequential Damages

6

What is required for laches?
If D wins on laches, can P get
anything?
Can you enjoin crime?
Who is bound by an injunction?
Restitutionary Remedies to Prevent Unjust Enrichment
What is an erroneous injunction?
How do you deal w/ an erroneous
injunction?
What are the solutions to civil
contempt?
What are the solutions to criminal
contempt?
Injunctive relief is often coupled w/
what?
Equitable Remedy: Specific Performance
CA Bar 2009: Remedies
a. Availabe for related damages foreseeable at the time of formation
b. Covers non-standard or special circumstances damages
c. Often tested: the reputation fact pattern: breach caused a foreseeable hit to the
reputation
1) Remedy: compensatory damages—discuss the std measure of damages
2) Sub Remedy: consequential damages
B. Nominal: allowed
C. Punitive
1. Not allowed
2. Tip: but see if the conduct can be re-characterized as a torts case to get PD
D. Liquidated Damages Clause Fact Patterns
1. Test for validity of a liquidated damages clause:
a. Damages are very difficult to ascertain of formation
b. This was a reasonable forecast of what they would be
2. If valid  P gets only liquidated amount available
3. If invalid  P doesn’t get the liquidated amount but will get compensatory
damages
4. Tip: if bar question says that either actual damages or liquidated damages are
available  invalid clause
5. When a valid liquidated damages award prevents P from getting actual damages, P
can nonetheless still get specific performance unless the K specifically provides
that this damages amount is to be the only remedy
A. Fact pattern: P has rendered some performance per K and D has breached or isn’t
performing.
B. Fact pattern: K is unenforceable due to mistake, lack of capacity, SoF, illegality etc.
but P performed
1. If P partially or completely performs, P can recover for the value of the benefit by
suing for restitution (and not suing on the K)
2. If the value of the services is greater than the K rate, P can recover for the amount
that’s greater than K by suing on restitution
3. Can P get property back? Yes if property is unique or D is insolvent.
C. Fact pattern: breached K
1. P as the non-breaching party:
a. P can get restitutionary damages for property/money given to or services
rendered for D for value of the benefit
b. P can get property back if it’s unique or D is insolvent
2. P as the breaching party:
a. Traditionally: P cannot recover
b. Modern: P can recover but the recovery cannot be greater than the K rate and
it will be reduced by any damages suffered by D as a result of breach
c. Hypo: P buys land for 100 on installment K. P pays 30% then defaults. Now
land is only worth 80.
1) Traditional: P can’t recover
2) Modern: P can get 10 (30-20)
A. Checklist:
1. K is valid
7

What damages are allowed for
personal injury torts?
What damages are allowed for
fraud?
CA Bar 2009: Remedies
2. K conditions of P must be satisfied
3. Inadequate legal remedy alternative
4. Mutuality of remedy
5. Feasibility of Enforcement
6. Defenses
B. K is valid: P must be able to show that K is valid
1. NB: to get SP, P must show the contract terms w/ more certainty and
definitenessthan would be the case in an action for money damages at law.
Otherwise it would be too difficult to enforce “according to the K’s terms.”
C. K conditions of P must be satisfied
1. P must show that he already fulfilled or is ready and able to perform or is excused
from performing.
2. Fact patterns on K conditions:
a. Deficiencies and Land Sale K’s: seller doesn’t deliver agreed-upon
consideration
1) Seller as P:
A) Can enforce K if the defect is minor
B) Cannot enforce if the defect is major, unless seller can cure the
defect before or at closing.
2) Buyer as P
A) Can enforce K even if defect is major
B) NB: court will not enforce the K if the defect is extraordinarily large
(ie half the land is missing). Ct will simply refuse to act.
3) Bar Exam Imperative: if you decide that SP should be granted under
rules above even though a defect remains, you must note that a court will
reduce the purchase price.
A) NB: buzzword-abatement in the purchase price
b. Time of the essence fact pattern: B doesn’t meet K condition of timely
performance
1) Facts:
A) There will be a land sale K w/ an express time is of the essence
clause.
B) Clause will contain a forfeiture provision saying that if performance
isn’t timely, Buyer forfeits all performance rendered to date
C) There will have been partial performance which is now potentially
subject to forfeiture.
2) Buyer will make a late payment triggering the time is of the essence
clause, thus Seller wants to keep land and all the payments to date.
3) Result:
A) “Equity abhors forfeitures.”  don’t void B’s rights for mere late
tender of payment if:
(1) Loss to S is small
(2) Tardiness is de minimis
(3) Waiver (S has accepted late payments in past)
(4) B would suffer undue hardship
B) B’s material breach: grant restitution B less S’s damages to prevent
unjust enrichment to S
c. If time is not of the essence and B breaches by tendering late payment, a court
would most likely not allow forfeiture and instead allow the later tender as
satisfaction of B’s obligations as long as made w/in a reasonable time and not
prejudicial to S.
D. Inadequate legal remedy alternative
8

What are the Kremedies? Legal?
Restitutionary? Equitable?
E. Mutuality of Remedy
F. Feasibility of Enforcement
What are compensatory damages
G. Defenses
based on?
What are the requirements? (4)
What are consequential damages
available for?
What are the requirements for
consequential damages?
Can consequential damages be a
remedy for reputation injury?
Are nominal damages allowed?
CA Bar 2009: Remedies
1.
Compensatory damages = basic alternative
2.
Why would they be inadequate:
a. Speculative damages
b. D is insolvent
c. Multiple suits are necessary
d. Thing bargained for is unique
3. Tip: the uniqueness prob:
a. If property is “unique,” then P can’t go out and buy another.
b. Rule: land is unique
1) NB: sellers of land can get specific performance even though all they
have coming in is money
c. Rule: personal property is not unique. Exceptions:
1) One of a kind or very rare
2) Personal significance to buyer
3) Circumstances make chattel unique
4) Rule: “uniqueness” is tested at time of litigation
1. Fact pattern: B, at 17 years of age, enters into K to buy land from S, an adult. S
refuses to convey and B sues for specific performance.
2. Analysis:
a. This is a mutuality fact pattern where D would argue that P shouldn’t be
allowed to enforce the K against D b/c D could not similarly enforce the K
against P. (here b/c of lack of capacity.)
b. Judge will reject the mutuality argument if it feels secure that P will perform.
c. Grant SP and have the decree provide for simultaneous performance.
1. Fact pattern: SP of a service
a. Rule: Services are not specifically enforceable
b. Enforcement probs
c. Involuntary servitude
1. Equitable Defenses
a. Unclea hands
b. Laches
c. Unconsionability
1) Tested at the time of K formation
2) More than a bad deal, must also have some “smell factor” facts
2. K Defenses
a. Mistake
b. Misrepresentation
c. SoF
3. Bar exam fav: SoF/Partial performance
a. Prob will involve a land sale; K will have been an oral K.
b. Analysis:
1) P will sue for specific performance.
2) D will argue SoF.
3) P will argue that he has 1) rendered valuable partial performance and 2)
in reliance on the K, then P can get SP b/c it’s out of SoF
c. “Valuable part performance”
1) Payment in whole or part
2) Possession
3) Valuable improvements
4) Valuable services (modern trend)
9

Are punitive damages allowed?
4.
When is a liquidated damages
clause valid? (2)
What does P get if it is valid?
What does P get if its invalid?
How do you treat a clause that says
actual damages or liquidated
damages are allowed?
Can P get SP and liquidated
damages?
What situations can you use
restitution to prevent unjust
enrichment?
CA Bar 2009: Remedies
5) Any 2 of the top 3 will be good enough.
Bar exam fav: Specific Performance
a. Equitable Conversion
1) Where a valid land sale K is entered into, an equitable conversion occurs
upon execution  thus after K is signed but before title is conveyed:
2) Seller: retains a personal property interest, ie a specifically enforceable
right to the money
3) Buyer: retains a real property interest, ie the specifically enforceable
right to land
4) Thus if S transfers title to a BFP, S cuts off B’s right to specific
performance but B can still sue for breach of K.
b. Rights
1) Majority view: B is liable for purchase price even if there’s property
damage before closing
2) Minority and modern trend: risk of loss shifts to B only when he gets
possession or legal title
c. Death of a party to a K
1) S’s death after entering into a specifically enforceable K
A) Legal title passes to heir or devisee who’s entitled to “real property”
B) Right to purchase price passes to person who’s entitled to “personal
property”
C) B must join administrator of estate and heir to sue for specific
performance.
2) B’s death after entering into specifically enforceable K
A) Interest in land goes to person entitled to his real property
B) S must join B’s administrator and heir to sue for SP
d. Covenants not to compete
1) Covenant must protect a legitimate interest of the person in whose favor
it runs  services must be unique
2) Covenant must be reasonable in both geographic scope and durational
scope.

Equitable Remedy: Rescission

A. Def: the original K is considered voidable and rescinded

B. Analysis:
1. Grounds for rescission?
2. Valid defenses?
C. Grounds for rescission
1. Generally:
a. Mistake
b. Misrepresentation
c. Coercion
d. Undue influence
If P is the breaching party on an e. Lack of capacity
installment land sales K, what f. Failure of consideration
result? g. Illegality
2. Mutual Mistake
a. Material fact  rescission granted
b. Collateral fact (going to quality, desirability or fitness of property for a
particular purpose)  rescission denied
3. Unilateral Mistake
10

What are the requirements for SP?
(6)
What must P show to prove
validity of K?
What must P show to prove that he
satisfied his K obligations?
Equitable Remedy: Reformation
If SP should be granted on a land
sales K even though a defect
remains, what result?
In a “time is of the essence” land
sales K, what result if the “breach”
is mere late tender of payment?
CA Bar 2009: Remedies
a. Rescission denied
b. General Exception: rescission granted if non-mistaken party knows OR
should know of the mistake
c. Modern Trend Exception: mistaken party would suffer undue hardship if
rescission is denied
4. Misrepresentations
a. If P actually relied on the misrepresentation  rescission granted
b. If no reliance by P  rescission denied
D. Valid defenses
1. Unclean hands
2. Laches
3. Rule: negligence is not a good defense
E. More rules
1. Election of remedies
a. If P sues (on the K) for damages first  rescission is not allowed (this is
considered an affirmance of the K)
b. If P sues for rescission first  damages are allowed
c. NB: P can sue for both at the same time but must elect the remedy before
judgment.
2. Availability of restitution
a. If a P who is entitled to rescission has previously rendered performance on
the K, P can get compensation for it or get the property back by restitution.
A. Def: changes written agreement to conform w/ parties’ original understanding
B. Requirements:
1. Valid K?
2. Grounds for reformation?
3. Valid defenses?
C. Valid K? Even though written agreement doesn’t reflect mutual understanding?
D. Grounds
1. Mutual Mistake  reformation granted
2. Unilateral Mistake  reformation denied
a. Exception: where non-mistaken party actually knows of the mistake, then
reformation denied (doesn’t include constructive knowledge)
3. Misrepresentation  reformation granted
a. Available for both intentional and innocent misrepresentations
b. Rewriting will encompass the expressed intent of the parties
E. Defenses
1. Unclean hands
2. Laches
3. Defenses that won’t work:
a. Negligence of P
b. SoF
c. Parole Evidence Rule
F. NB: reformation isn’t allowed where it would adversely affect a subsequent BFP
11
 CA Bar 2009: Remedies
What are the key factors?

In a “time is of the essence” land

sales K, what result if B’s breach is
material?

If time is not expressly of the

essence, and B breaches by
tendering late payment, what
result?

How can the legal remedy be

inadequate?

Can land ever be non-unique?

Can personal property ever be

unique?

12
 CA Bar 2009: Remedies

What is mutuality?

When will a court reject mutuality?

Can services be enforced by SP?

What are the 3 equitable defenses?

(3)

What are the K defenses? (3)

How can a land sales K get out of

the SoF?

What comprises “valuable part

performance?”

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 CA Bar 2009: Remedies

What is equitable conversion?

What happens if a BFP enters the

picture?

What are the rules on damage to

the property after K is signed but
before closing date?

What happens to a specifically

enforceable K upon the death of S?

What happens to a specifically

enforceable K upon the death of B?

What are the requirements for a

valid covenant not to compete?
(3+1)

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 CA Bar 2009: Remedies

What are the requirements for

rescission?

What are grounds for rescission?

When is mutual mistake grounds

for rescission?

When is unilateral mistake grounds

for rescission?

What are valid defenses to

rescission?

If P sues on the K and for

rescission, what result?

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 CA Bar 2009: Remedies

If P sues for money damages first,

what result?

What happens to a P who is

entitled to rescission but has
partially performed on the K?

What are the requirements for

reformation?

What are grounds for rescission?

When is unilateral mistake allowed

against rescission?

What are defenses to rescission?

How do you treat a subsequent

BFP and rescission of an earlier K?

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