il bar exam outlines - equity

7/27/2019 Il Bar Exam Outlines - Equity

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Equity Six (6) Remedies available at equity

Equitable relief (discretionary) is NOT available when an adequate legal remedy exists.Inadequate or unavailable when: Damages are insufficient to fully compensate forirreparable harm or they are uncertain or highly speculative, subject-matter is unique,

defendant is insolvent, compensation would require successive suits, or Ds conduct iswillful or ongoing.1. Injunctive Relief is ordered (enjoined) to do or refrain from doing something(permanently or temporarily)

A. Temporary Injunctive Reliefi. Ascertained right + irreparable harm + no adequate remedy at law +likelihood of success on the merits + balance of hardships. bond-ii. There will be a hearing. Court has great discretion so a reviewing courtwill only reverse against the manifest weight of the evidence.

B. C: Temporary Restraining Orderi. Test identical. bond-

ii. Ex parte proceeding (no notice but good faith effort, non-adversarial)iii. 10 day limitationC. Permanent Injunctive Relief (

Test: clearly ascertained right + suffer irreparable harm + no remedyavailable at law.i. Inadequate legal remedy alternative No replevin, ejectment or moneydamages (too speculative, tort threatened, insolvent, irreparable injury,multiplicity of actions)ii. Property right (traditional) /protectable interest (modern) requirementiii. Feasibility of Enforcement (Negative no enforcement issues orMandatory possible issues from supervision or compliance)

iv. Balancing of Hardships a) must be gross disparityb) not if s conduct willfulc) consider monetary award to d) consider hardship to public

v. Defensesa) unclean hands improper conduct related to lawsuitb) laches waits so long unreasonable and prejudicial to (consider money damages)c) impossibility cannot carry out terms of injunctiond) Free Speech (defamation or privacy publication branch injunction denied)

D. Acts to bind: (i) parties (ii) ee and agents (iii) others acting in concert

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Trespass

Generally compensable with $

However SP granted if the trespass is continuous to prevent multiple suits

Nuisance

Available against a private nuisance

Available against a public nuisance only when P suffers a special harmWaste

When $ wont suffice, Equity remedy will be available

Encroachment

Available against intentional encroachment on P land

NOT Available against for unintentional encroachment (only $)

Unique chattel

Available to recover converted unique chattel (family heirloom)

Defamation

Unlikely due to the First amendment

Abuse of Process Can enjoin vexatious or harassing P but not another court

Trade Secret Misappropriation

Trade Secret (w/ independent value) + taken (better if by improper conduct) w/ a

Fiduciary dutyTrademark/Trade Name Infringement

Protectable mark + Infringement? (likelihood of conf. tests to show dilution in value)

Other IP: Copyright, Patents, right to publicity, unfair competition, trade liabel.

2. Specific Performance is required to perform the contractA. Contract is valid (more certainty and definiteness than money damages)

B. Contract conditions of must be satisfiedC. Inadequate legal remedy alternative (Sellers of land can get s.p.) (ok even withliquidated damages clause)D. Mutuality of performance P must have performed alreadyE. NO Defenses

i. Equitable defensesa. unclean handsb. lachesc. unconscionability smell test at time of contract

ii. Contract defensesa. mistake

b. misrepresentationc. statute of frauds (look for: oral land contract. If so new rule: Ifone has rendered (i) valuable part performance, (ii) in reliance inthe contract, this will take the case out of the statute of frauds andspecific performance will be granted.

F. Usually not ordered in personal services K, Construction K or Employment K.

Specials areas of specific performance

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Equitable conversion If, Specifically enforceable land sale contract then property

interests of buyer and seller are switched. Occurs between execution and closing.o Death: Specifically enforceable contract executed.

o Damage/Destruction

Majority Rule: The risk of loss is on buyer, except if loss fromnegligence of seller.

Modern Trend: The risk of loss is on he seller, except if at the time ofloss the buyer has either legal title or possession. IL

Whoever has risk of loss should get insurance, can be got throughconstructive trust.

Personal services contracts

o Personal services contract generally not specifically enforceable

(enforcement problems and involuntary servitude)o Covenant not to compete must:

protect a legitimate interest (unique services) and

be reasonable in both geographic and durational scope.

Covenant NOT to compete

o In IL must be: reasonable (no greater than needed no undue hardship, not

injurious to the public) + necessary to protect an employers legitimatebusiness interest (confidential info, clients, and time and place limitations).

o Must be ancillary to another transaction.

o Personal services contract generally not specifically enforceable

(enforcement problems and involuntary servitude)o Covenant not to compete must:

protect a legitimate interest (unique services) and

be reasonable in both geographic and durational scope.3. Recission the original contract is considered voidable and rescinded (Good Dog)

A. Grounds for rescission (7): (1) mistake (2) misrepresentation (3) coercion (4)undue influence (5) lack of capacity (6) failure of consideration (7) illegality (allmake contract invalid)

i. Mutual mistake: material fact = rescission, collateral fact no rescissionii. Unilateral mistake no rescission except if non-mistaken party knew orshould have known (modern trend: exception for undue hardship)iii. Misrepresentation must show actual reliance

B. Valid defensesi. unclean hands

ii. lachesiii. non-defense s negligence

4. Reformation contract does not accurately reflect the understanding reached cannotadversely affect subsequent BFP

A. Valid contractB. Grounds for reformation (Burden of Clear and convincing proof on P)

i. mutual mistake = reformation

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ii. unilateral mistake no reformation, except where non-mistaken partyknewiii. misrepresentation = reformation

C. Defensesi. unclean hands

ii. lachesiii. non-defenses: negligence of , statute of frauds, parol evidence rule

5. Constructive Trust ( has title) Imposed on improperly acquired property to whichdefendant now has title. serves as trustee and must return the property to theplaintiff.

A. No adequate legal remedy (property unique)B. Tracing is allowedC. BFP prevails over D. prevails over unsecured creditorsE. Use if property value has gone up

6. Equitable Lien ( has title) Imposed on improperly acquired property to which thedefendant has title. Property subject to an immediate court-directed sale. Moniesreceived go to the . If the proceeds of the sale are less than the fair market value of theproperty when it was taken, a deficiency judgment will issue for the difference and can beused against s other assets.

A. No adequate legal remedyB. Tracing is allowedC. BFP prevails over D. prevails over unsecured creditorsE. Use is property value has gone downF. Use if s property cannot be traced solely to s property

7. Suit to Quiet Tittle8. Subrogation If a party discharges involuntarily the debt of another, it is given therights of that other to seek repayment, contribution, etc9. Equitable accounting: Money decree for benefits obtained at the expense of another.

Equity Defensesi. unclean handsii. lachesiii. undue hardshipiv. Equitable EstoppelOthers: negligence of , statute of frauds, parole evidence rule

Enforcement of Equitable Remedies:Contempt Proceedings: Civil (fine and imprison) Criminal (right to a jury trial)An erroneous order must be complied while a motion for reconsideration or an appeal isresolved.

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il bar exam outlines - equity

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