I. INTRODUCTION A. General Categories of Remedies (OL I.A.) 1. Liability must exist fo r remedie s. The three are as of remedy an alys is, in order of consideration, are: a. Remedies at law (Damages ) b. Restitution c. !uitable remedies II. REMEDIES AT LAW A. Damages in Torts Cases (OL II.A.) 1. Purpose a. The " ur"ose of da mage s in torts acti ons i s gen erally : #om"ensation, to "ro$ide an award in the form of money %udgment to the aggrie$ed "arty to com"ensate for any loss or in%ury resulting from the unlawful act of omission of another b. & secondary "ur"ose: 'unish ment or dete rrence . Basic Tpes of Damages a. T!ree Categories of Tort Damages (1) #om"e nsato ry () omi nal (*) 'uni ti$e b. CompensatorDamages(1) #om"ensatory d ama ges are designed: to com"ensa te the "lai ntiff for los s suffered () T!ree "eConcerns+#om"ensatory damages must be: (a) ores eeabl e EXAMPLE: Thin- bac- to the agon /ount doctrine, which holds that if a defendant commits a tortuous act, the defendant will be res"onsible for the foreseeable conse!uences of that tortuous act. (b) #ertainty 0 There must be "roximate and l egal cause betw een the wrongdoers act and the "laintiffs in%ury 1) The court must be able to calculate the dama ges with cert aint y: 2tronger re!uirement in contract than tort as damages are more certain3 stronger for "ro"erty than "ersonal in%ury. EXAMPLE: 'laintiff wants to start u" a brand new business. Defendant tortiously interferes with that business starting u", and therefore 'laintiff is unable to start u" that new business and wants to reco$er lost "rofits. 4ow could a court measure lost "rofits in this situation, with a brand new business with no record or history5 This is a situation where certainty will be a "roblem. (c) 6na$o idabl e 1) The "lai nt if f must: /itigate the loss she or he suffere d ) T#o "ePoints Remedies
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8/12/2019 California Bar Exam Lecture Notes - Remedies
1. Liability must exist for remedies. The three areas of remedy analysis, in order of consideration, are:
a. Remedies at law (Damages)
b. Restitution
c. !uitable remedies
II. REMEDIES AT LAW
A. Damages in Torts Cases (OL II.A.)
1. Purpose
a. The "ur"ose of damages in torts actions is generally:
#om"ensation, to "ro$ide an award in the form of money %udgment to the aggrie$ed "arty to com"ensate for anyloss or in%ury resulting from the unlawful act of omission of another
b. & secondary "ur"ose:
'unishment or deterrence
. Basic Tpes of Damages
a. T!ree Categories of Tort Damages
(1) #om"ensatory
() ominal
(*) 'uniti$e
b. Compensator Damages
(1) #om"ensatory damages are designed:to com"ensate the "laintiff for loss suffered
() T!ree "e Concerns+#om"ensatory damages must be:
(a) oreseeable
EXAMPLE:
Thin- bac- to the agon /ount doctrine, which holds that if a defendant commits a tortuous act, the
defendant will be res"onsible for the foreseeable conse!uences of that tortuous act.
(b) #ertainty 0 There must be "roximate and legal cause between the wrongdoers act and the "laintiffs
in%ury
1) The court must be able to calculate the damages with certainty:
2tronger re!uirement in contract than tort as damages are more certain3 stronger for "ro"erty than
"ersonal in%ury.
EXAMPLE:
'laintiff wants to start u" a brand new business. Defendant tortiously interferes with that business
starting u", and therefore 'laintiff is unable to start u" that new business and wants to reco$er lost
"rofits. 4ow could a court measure lost "rofits in this situation, with a brand new business with no
record or history5 This is a situation where certainty will be a "roblem.
(c) 6na$oidable
1) The "laintiff must:
/itigate the loss she or he suffered
) T#o "e Points
Remedies
8/12/2019 California Bar Exam Lecture Notes - Remedies
or any tres"ass on real "ro"erty, the "laintiff has the right to at least nominal damages attributable to the in$asion
of the owners exclusi$e right to the land, e$en if the defendants "resence on the land caused no actual damage to
the "ro"erty.
b. ominal damages gi$e rise to the "otential for "uniti$e damages.
C. Puniti$e Damages
a. 'uniti$e damages are designed to "unish the defendant:
commits intentional and rec-less conduct done maliciously, wrongfully
b. 'uniti$e damages are a$ailable when:
in tort cases, there has been willful, wanton or malicious conduct. 'laintiff is not entitled to an award of "uniti$e
damages but %ury may award them at their discretion
c. & "laintiff is ne$er entitled to an award of "uniti$e damages, but may see- them:
in a ma%ority of %urisdictions, "uniti$e damages can be tac-ed on after com"ensatory and nominal damages are award
. Collateral ource Rule
a. 7f a "laintiff gets benefits from a collateral source (i.e., not the defendant) in a tort or contract action:
hile ' can only reco$er once for his in%uries, any amount from collateral source, is not deducted from the amount
defendant owes in damages
EXAMPLE:
'laintiff brings an action against Defendant for >?,??? in medical ex"enses. 'laintiff was insured at the time of the
accident that caused his in%uries, and his insurance com"any "aid all medical ex"enses. 'laintiff may still sue
Defendant for the medical ex"enses and collect the full amount if he "re$ails on the liability issue.
B. Damages in Breac! of Contract Cases (II.B.)
1. In General
a. The goal is to "ut the "laintiff:
in the same "osition to the "laintiff would ha$e been if the contract had been "erformed. These are -nown as
ex"ectation damages.
. & li0uidated damages clause is an attem"t by the "arties:
to establish in ad$ance of the breach, what the damages would be in the e$ent of a breach.a. here enforceable, courts will find li!uidated damages:
determines the reco$ery
b. Two im"ortant considerations to determine if a li!uidated damages clause is a measure of damages or a
"unishment are:
(1) Damages must be difficult to ascertain at the time contract is formed
() 'arties must made a reasonable attem"t to forecast the damages
c. here those re!uirements are not met:
Li!uidated damages would be "resumed to be a "enalty and unenforceable. #ourt may grant s"ecific "erformance if
a""ro"riate, unless contract sti"ulates li!uidated damages as the only remedy
&s a general rule, any time a li!uidated damages clause arises in a "roblem, there will be a $ery strong argument that itis a "enalty and unenforceable. This is to allow students to go on and discuss other damages.
*. &n e,pectation measure:
is the standard measure that flows from that ty"e of contract together with any conse!uential damages. The damages
must be shown with reasonable measure
<. In$ol$ing ale of Real +state
a. Breac! ' Purc!aser
(1) The measure of damages when the buyer breaches is:
the difference between the contract "rice and fair mar-et $alue of the "ro"erty
E&/T7'
8/12/2019 California Bar Exam Lecture Notes - Remedies
m"loyee is not re!uired to ta-e on any %ob 0 similar %ob in the same area
b. Breac! ' +mploee
(1) The em"loyers standard measure of damages:
xtra cost of hiring someone else to do the %ob
C. In$ol$ing Construction on Real +state
a. Breac! ' O#ner or Purc!aser
(1) The builders standard measure of damages:The "rofits the builder ex"ected to ma-e on the %ob "lus the cost ex"ended to date
EXAMPLE:
-omeo#ner !ires Painter to paint !er !ouse for 123%333% and Painter e,pects to e,pend 19%333 on
supplies and la'or% t!ere' maing a 1:%333 profit. If -omeo#ner 'reac!es t!e contract t!e ne,t da%
Painter is entitled to 1:%333% constituting !is lost profits. If Painter 'oug!t t!e paint and painted a
fourt! of t!e !ouse% !e #ould 'e entitled to t!e 1:%333 plus t!e cost e,pended to date on t!e paint and
t!e la'or.
b. Breac! ' Builder or Contractor
(1) The owners remedy if the wor- is not yet com"leted:
additional cost to com"lete abo$e the contract "rice
() 7f the builder or contractor com"letes the wor- but with defects, the owner may reco$er either:
cost to remedy the defect unless the cost is too dis"ro"ortionate to the benefit recei$ed. 7n such asituation, diminution of $alue.
EXAMPLE:
T!in 'ac to t!e famous Cardo;o Read<Pipe decision. Builder #as !ired to 'uild a !ouse using
Read<Pipe% 'ut instead used anot!er pipe t!at #as almost as good% 'ut #asn&t Read<Pipe. In t!at
case% t!e cost to remed #as too disproportionate to repair% so instead t!e court granted t!e
diminution of $alue.
. Conse0uential damages
&ny other damages that are foreseeable and certain
a. #onse!uential damages must be reasonable foreseeable:to the breaching "arty at the time the contract was formed
F. Incidental damages
2ubset of conse!uential damage
1?. Reliance damages
<ernati$e method to measure damages
a. These consist of any ex"enditures:
any ex"enditures made for "erformance of the contract "rior to the breach
EXAMPLE:
& contracts to build a house for ;, and goes out and buys lumber and other materials that & will need to build the
house. ;efore & starts wor-, ; breaches the G. & could "ursue ex"ectation damages, or & could sim"ly choose tosue for reliance damages. These damages would be the amount ex"ended in "re"aration to "erform the G to date,
or the amount s"ent on the materials.
8/12/2019 California Bar Exam Lecture Notes - Remedies
1. & restitutionary remedy see-s to "re$ent the un%ust enrichment of the defendant:
by returning to the claimant any benefits un%ustly conferred by the claimant on the defendant
B. Restitutionar Remedies in Tort Cases (OL III.B.)
1. Legal Remediesa. +=ectment
(1) &ction to remo$e D wrongfully in "ossession of 's land
b. Reple$in
(1) &ction at law for the reco$ery of s"ecific chattels that ha$e been wrongfully ta-en or detained
. +0uita'le Remedies
a. ;oth e!uitable remedies arise out of a !uasi@contract analysis.
b. 2ome courts re!uire a showing:
legal remedy is inade!uate before they can get e!uitable remedies or constructi$e trust
c. Constructi$e Trust
(1) & constructi$e trust is a legal fiction by which:
that the D who has wrongfully dis"ossessed the ' of "ro"erty is holding that "ro"erty in trust
() 7f successful:
a trust is im"osed on the "ro"erty to order for D to return the "ro"erty
(*) 7t differs from re"le$in because:
in constructi$e trust, if the "ro"erty has changed formed, the trust can be im"osed on the new form
EXAMPLE:
Defendant stole a ring from Plaintiff. Defendant t!en sold it for 12>%333. Defendant t!en too 12:%333
from t!at 12>%333 and used it to purc!ase Blacacre% and Blacacre increased in $alue to 1>3%333.Plaintiff can trace Blacacre all t!e #a 'ac to t!e stolen ring. Plaintiff can t!erefore get a
constructi$e trust on Blacacre and in effect 'ecome t!e o#ner. Defendant #ill 'e forced to con$e
Blacacre to Plaintiff.
(<) Ta-e note that you cannot trace "ro"erty that is sold to a bonafide "urchaser.
EXAMPLE:
ame ring e,ample% 'ut no#% Defendant sells Blacacre to a 'ona fide purc!aser. Plaintiff can no
longer get a constructi$e trust on Blacacre. -o#e$er% Plaintiff can still get a constructi$e trust on t!at
12>%333.
d. +0uita'le Lien
(1) This is a situation where:
' is allowed to ha$e a lien im"osed on "ro"erty() The benefit of either e!uitable remedy:
' becomes a secured creditor
EXAMPLE:
Original ring fact pattern. Plaintiff can sue Defendant for 12>%333% t!e fair maret $alue of t!e ring. But
if Plaintiff does so% !e 'ecomes a general creditor. If Plaintiff sues for an e0uita'le remed% !e
'ecomes a secured creditor and t!erefore !as priorit o$er general creditors% and t!ere' a'le to
reco$er first% 'efore ot!er creditors.
(*) #ourts will im"ose a lien:
for the $alue of "ro"erty ta-en
8/12/2019 California Bar Exam Lecture Notes - Remedies
Defendant em'e;;les 1>%333 from Plaintiff and uses t!at mone to mae impro$ements to !is !ome% #!ic!
causes !is !ouse to increase in $alue ' 1>%333. Plaintiff cannot claim a constructi$e trust o$er t!e !ome%
'ut could claim an e0uita'le lien o$er t!e propert in t!e amount of 1>%333.
EXAMPLE:
ame facts as a'o$e% 'ut t!e !ome onl impro$es ' 1:%333. Plaintiff can get an e0uita'le lien on t!e
!ome% 'ut onl for 1:%333. Restitution is concerned #it! t!e 'enefit 'eing conferred.
*. Lo#est Intermediate Balance Rule
EXAMPLE:
2u""ose D embe88les >=,??? from ' and "uts it into his ban- account. 4is account has a balance of >,???. 4e has
now brought the balance u" to >C,???. 4e then decides to go on a cruise and s"ends ><,??? from the account on the
cruise, so the balance falls to >*,???. hen he returns, he gets a gift from a relati$e for >1,??? and "uts it into the
account, bringing the balance u" to ><,???. ' now sues. ' can get an e!uitable lien, but is limited to >*,??? under the
Lowest 7ntermediate ;alance Rule.
a. 6nder this rule:
Lowest intermediate balance between the tort and lawsuit is sub%ect to e!uitable lien.
C. Restitutionar Remedies in Contract Cases (OL III.C.)
1. General Rule Recap
a. The general rule of remedies is to com"el the defendant:to return the reasonable $alue of benefit conferred by ' on the D when it would be un%ust for D to not "ay
. ?uasi<Contract
a. Huasi@contracts are contracts im"lied in law:
to order a D to "ay reasonable $alue of benefit conferred
b. 4owe$er, the -ey concern is that when this benefit was conferred by mista-e:
reasonable ex"ectation of "ayment from this "erson.
EXAMPLE:
Thief steals a car from '. The car had some defects and minor damage. Thief too- the car to a re"air sho" and had
it fixed u" to loo- brand new. Iust as the re"airs were com"leted, the "olice arri$ed and too- the car bac- to the
owner. There was a reasonable ex"ectation of "ayment from Thief, but not from the rightful owner, who didnt as-for this. The re"air sho" cant force a benefit onto someone. Therefore, there is no !uasi@contract on these facts
alone.
HYPOTHETICAL
#lar- contracts to ha$e Landsca"er "lant trees and shrubs in her bac-yard. #lar- li$es at 1?? Acean &$enue. An the
date of "erformance, Landsca"er by mista-e goes to /itchells home at 1??? Acean &$enue and "erforms the
landsca"ing wor-. &fter reali8ing his error, Landsca"er attem"ts to reenter /itchells bac-yard to remo$e the
im"ro$ements. /itchell refuses to "ermit Landsca"er to come bac- onto the "ro"erty and threatens to in%ure him if he
does so. 7mmediately thereafter, Landsca"er brings a restitutionary action against /itchell see-ing to reco$er the
reasonable $alue of the trees and shrubs that were "lanted. 2hould Landsca"er "re$ail5
Restitution damages are awarded when ' confers benefits on D and not re"aying ' would un%ustly enrich D. 7f benefits
are conferred by mista-e, -ey concern is whether there was a reasonable ex"ectation of "ayment from the "erson who
is enriched. 4ere, owner is refusing to allow remo$al. 2ome courts ha$e argued that this can be seen as an
acce"tance of benefits by the owner. Ather cases ha$e held that this may be a con$ersion. 7n either case, owner has to
"ay. Restitution allowed
d. ¬her area !uasi@contracts arise:
unenforceable contract i.e. due to statute of frauds or discharge, court can order restitution
*. Breac! of Contract
a. & "arty may also see- restitution:
8/12/2019 California Bar Exam Lecture Notes - Remedies
whether to choose restitution damages or ex"ectation damages
() xce"tion:
where the aggrie$ed "arty has already fully "erformed his or her end of the contract.
BAR EXAM APPLICATION
Question 1
&""licants were as-ed to consider issues arising from breach of a ser$ice contract. /aria, a homeowner, res"onded by
tele"hone to a handbill "osted on her door-nob by Resi@#lean (R#), a com"any offering com"lete housecleaning ser$ices for
>=??. They mutually agreed the ser$ices would be "erformed on riday, but on Thursday e$ening, /aria sold her home. hen
the crew arri$ed riday morning, she sent them away. R#s loss of "rofit was >1??, but R# billed /aria for >=??.
&ssuming /aria breached her contract with R# how much, if anything, does /aria owe R#5
&""licants must discuss "ossible com"ensation for R#s ex"ectancy interest, as well as any conse!uential damages or
incidental damages.
From the July 2006 California Bar Exam
Damages award for breach of contract are supposed to place the in the same position that would ha!e been "# if the
contract had been performed. Assuming Maria is liable, RC would not be entitled to $500. They would only be entitledto $500 if they had fully performed the contract. They would receie their lost profits and costs e!pended to date,
which is $"00 here.
BAR EXAM APPLICATION
Question 2
&""licants were "resented with damages issues arising from a wrongful death. Iac- owned the worlds largest uncut diamond,
worth >1 million uncut, but "otentially >* million if cut into finished gems. & master diamond cutter, #hi", agreed in writing to
underta-e the ris-y tas- of cutting the diamond for com"ensation of >1??,???, "ayable u"on successful com"letion. 4owe$er,
before beginning the %ob, #hi" died as a result of being hit by a negligent dri$er, ilbur. #hi" left a widow, /elinda.
hat damages, if any, may /elinda reco$er against ilbur5
&""licants must consider elements of com"ensatory damages for wrongful death, including such items as #hi"s "otentialfuture earnings, loss of consortium, medical and funeral ex"enses, and /elindas emotional distress at being widowed.
From the July 200$ California Bar Exam
Conse%uential damages ha!e to be foreseeable and certain& "n a wrongful death action' lo!ed one sues for damages suffered
for loss of lo!ed one& (t issue here is whether )*00000 is sufficiently certain to be awarded for the wrongful death action& +e
are told that )*00000 would ha!e been paid only on completion of a ris,y procedure& Damages may be too speculati!e to
perform& -elinda won.t get the )*00000 lost due to Chip.s death but the loss of profits' pro!ided it is not speculati!e&
IV. EQUITABLE REMEDIES
A. Introduction
Traditional re!uirement for e!uitable relief was that legal remedy was inade!uate. The "rime e!uitable remedy in torts is an
in%unction, and in contracts is s"ecific "erformance.
B. +0uita'le Remedies in Tort Cases (OL I8.C.)
1. In=unctions
a. Definition
(1) &n in%unction is a court order:
e!uitable relief designed to order a "erson or entity to refrain rom doing an act or do a "articular act
b. T!ree Tpes of In=unctions
8/12/2019 California Bar Exam Lecture Notes - Remedies
1) The harm to the "laintiff if no in%unction is issued is balanced:
&gainst the burden on the defendant if the in%unction is issue
(c) hen does balancing ta-e "lace5
1) ;alancing always ta-es "lace unless:
The Ds conduct is willful.
HYPOTHETICAL
The 6.2. a$y uses sonar during training exercises in the waters off the coast to "re"are stri-e grou"s to detect, trac-, andneutrali8e enemy submarines. rou"s and indi$iduals de$oted to the "rotection of marine mammals and ocean habitats assert that
the sonar causes serious in%uries to these animals. $en if these "laintiffs ha$e demonstrated a substantial li-elihood of irre"arable
in%ury, may such in%ury be outweighed by the go$ernmental and "ublic interest in effecti$e, realistic training of sailors in national
defense, "re$enting issuance of an in%unction5
This hy"o as-s us to use the balancing test and examine what would ha""en to ' if in%unction is not grant . &re there
other ways to train the sailors5 hat is the short@term and long@term effect on marine life5
(C) Defenses (OL I8.D.)
(a) The two most fre!uently tested defenses are:
1) Latches
) 6nclean hands
(b) Lac!es
1) Laches arises when a "laintiff:
6nreasonably delays asserting rights and the delay "re%udices defendant
) Do not confuse this with statute of limitations. This is "rimarily a "re%udicial
harm concern.
*) The focus is less on the timing as:
're%udicial harm concern
() 6nclean -ands (OL I8.D.)
(a) 6nder this defense, if the "laintiff has committed some wrongful conduct which has in%ured the defendant
with res"ect to the dis"ute currently between the "arties:
The 's hands are not clean
(b) The wrongful conduct by the "laintiff:
hich has in%ured the D in connection with dis"ute between the "arties
EXAMPLE:
Defendant in some way was bac-ing out of a business deal with 'laintiff, and 'laintiff sought an
in%unction. hile see-ing this in%unction, 'laintiff got into a car accident with Defendant. This would not be
unclean hands+the two are unconnected.
C. +0uita'le Remedies in Contract Cases1. pecific Performance (OL I8.C.)
a. & s"ecific "erformance decree:
!uitable decree that is issued in res"onse to a breach of contract
(1) 7t com"els:
;reaching "arty to "erform his or her to "erform his or her contractual obligations
b. i$e "e Concerns
(1) Definite and certain contract
() 7nade!uate legal remedies
(*) easibility
8/12/2019 California Bar Exam Lecture Notes - Remedies
for >=,???. &fter signing, but "rior to the date of "erformance, the roc- grou" releases an album which
shoots to the to" of the charts, and now the band has become a hot commodity, commanding as much as
>=?,??? "er a""earance. They contact the "romoter and demand more money. The "romoter refuses.
The roc- grou" then signs a contract to "erform a concert for a ri$al on the same night for >=?,???. The
first concert "romoter learns of this and sues. The court cant force "erformance, but can sto" the roc-
grou" from "erforming for the ri$al "romoter by en%oining a breach.
f. *utualit
(1) &t common law, mutuality meant that the "laintiff:
could only get s"ecific "erformance against D if D could get the sameEXAMPLE:
A contracts to 'u a uni0ue ring. Legal remedies in t!is situation are inade0uate% 'ecause t!e ring is
uni0ue. !ile t!e 'uer could get specific performance due to t!e uni0ueness of t!e =e#elr% t!e seller
could not% 'ecause mone damages are ade0uate. it!out t!e e,istence of mutualit% no specific
performance #ould 'e a$aila'le at common la# at all.
() Today, mutuality is established if the "arty see-ing "erformance has either:
(a) 2ubstantially rendered "erformance
(b) #an assure that "erformance will be rendered
EXAMPLE:
2ame facts as the uni!ue ring exam"le. The buyer could "ut money into an escrow account. This issatisfactorily ensuring the buyers "erformance, because the buyer is "utting his "erformance somewhere
where he cannot reach it.
(*) at!er<on -pot!etical
(a) Thin- bac- to the earlier hy"othetical in$ol$ing the father and son, and the estate con$eyance. The son
could not see- s"ecific "erformance to force the father to con$ey the estate because:
the son cannot assure that s"ecific "erformance will be rendered
g. Defenses (OL I8.D.)
(1) 7n addition to laches and unclean hands, two additional defenses are:
(a) 4ardshi"
1) 7f enforcement of the contract would an undue hardshi" on the defendant:
because of 's su"erior bargaining hardshi", then s"ecific "erformance will not be ordered
EXAMPLE:
&s relati$e dies, lea$ing her entire estate to &. &, -nowing nothing of wine, goes to the home, locates
the wine cellar, and finds a rare, old wine. & then goes to a local ex"ert who -nows what it is worth,
but the ex"ert tries to cheat & and gi$es him a bad estimate of the wines $alue. &fter entering into a
contract to sell the wine to the ex"ert, & learns the true $alue and bal-s at the deal, leading to the
ex"ert suing for s"ecific "erformance. ranting s"ecific "erformance would wor- an undue hardshi"
because of the ex"erts su"erior bargaining "osition.
(b) !uitable esto""el
1) 6nder this defense, where "laintiff has engaged in some action or inaction:
then ' may be esto""ed from asserting e!uitable rights.
HYPOTHETICAL
E owns a golf course. J owns a business that abuts the golf course. During construction of the course, J "rotested Es "lan to
construct homes on the course that would border Js "ro"erty. 7n res"onse to Js ob%ections, E ga$e J choices of what would
border Js "ro"erty. J selected a fairway for a certain hole. &fter the course o"ened, J sought an in%unction re!uiring a
redesign of that hole because golf balls were landing on Js "ro"erty. 2hould J be e!uitably esto""ed from obtaining an
in%unction5
8/12/2019 California Bar Exam Lecture Notes - Remedies
!uitable esto""el can be used when ' has engaged in some action or inaction that has induced the defendant to ta-e action
that is now basis of the challenged. J will be esto""ed here since J chose the fairway in the first "lace.
BAR EXAM APPLICATION
Question 3
&""licants were as-ed to analy8e issues arising from a contract for the sale of a rare "iece of art. 'aula was commissioned by/useum to find and "urchase certain original "aintings. 'aula learned that the wor-s were in the hands of "ri$ate collectors
and had not been sold on the mar-et for years, but she located a "ri$ate collector, 2ally, who "ossessed three "aintings that
/useum desired. 2ally agreed to sell any one of the three to 'aula for >??,???. 'aula did not disclose that she re"resented
/useum, e$en when 2ally mentioned that she only sold to other "ri$ate collectors and e$en though 'aula had to consult with
/useum before ma-ing the final selection. hen 2ally learned from a wire transfer of funds that /useum was actually the
"urchaser, she refused to surrender the selected "ainting to 'aula.
#an 'aula obtain s"ecific "erformance of 2allys agreement to sell the "ainting5
&""licants must consider, in addition to issues regarding the enforceability of the oral contract, whether s"ecific "erformance is
an a$ailable remedy on these facts, and whether 2ally could raise e!uitable defenses.
From the July 200/ California Bar Exam
pecific performance may be granted as a remedy for breach of contract& 1ere there is a breach of contract between and
for the sale of a rare piece of art& +e need to consider whether specific performance can be granted for breach of contract'
which has elements3 definite and certain contract' inade%uate legal remedy' feasibility' mutuality and defenses& 4here does
not seem to be much issue here with regards to contract& Dollar damages may be ade%uate but it was a rare piece of art so
legal remedy may be inade%uate& 4here do not seem to be feasibility 5 urisdictional problems& (s for mutuality concerns'
can assure her payments by putting it in an escrow account and here' she seems to ha!e wired the money& (t issue is
whether' can argue defenses because misrepresented her position at the museum and whether this is sufficient to be
considered unclean hands&
BAR EXAM APPLICATION
Question 4
&""licants were as-ed to e$aluate both legal and e!uitable remedies for breach of a contract for land. 2tan and ;arb entered
into a $alid written contract whereby (1) 2tan agreed to con$ey ;arb 1?? acres of agricultural land and water rights in an
ad%acent stream, and () ;arb agreed to "ay 2tan >1??,???. Two wee-s before the con$eyance was set to ta-e "lace, 2tan
called ;arb and told her the deal was off because he had been offered >1*?,??? for the land from another "arty. The next day,
;arb disco$ered that 2tan has title to only F? acres of the land, and that he does not ha$e water rights to the stream. 7t would
cost >1=,??? to "urchase such rights from their true owner.
hat e!uitable and contractual remedies may ;arb see-, and what is the li-ely outcome on each5
&""licants must ex"lain how ;arbs damages would be calculated for 2tans breach, and discuss the re!uirements for s"ecific
"erformance, including the a$ailability of an ade!uate remedy at law, and how the "urchase "rice would be abated for the
deficiencies if ;arb can re!uire 2tan to con$ey the "ro"erty.
From the July 200 California Bar Exam
7E-E-BE7 D7E 5 Damages' 7estitution and E%uitable 7emedy& Facts indicate enforceable contract exists& Damages for
contracts are designed to restore the plaintiff to her original position as if the contract had ne!er been breached& 4he damages
would be to cost to Barb to purchase land to meet her needs plus her conse%uential damages&
4here appears to be no restitution damages her as Barb ne!er did anything in reliance of the sale of land&
+e need to consider whether specific performance can be granted for breach of contract' which has elements3 definite and
certain contract' inade%uate legal remedy' feasibility' mutuality and defenses&
pecific performance re%uires definite contract' which we ha!e here' but we need to discuss whether there should be an
abatement of the purchase price to show that the land was not as ad!ertised& "f the buyer is see,ing specific performance' then
specific performance would be ordered& "f seller is see,ing an abatement' then seller would need to show material breach&
1ere' it is the buyer so specific performance would be ordered if the buyer agrees to buy the land despite the fault&
8/12/2019 California Bar Exam Lecture Notes - Remedies