Remedies
Remedies tests the relief available after a wrong: damages, restitution, specific performance, injunctions, and provisional remedies. The bar wants you to choose the remedy that best compensates or prevents harm, not just the most dramatic one.
Core rules
- Expectation damages protect the benefit of the bargain; reliance damages restore the plaintiff to the pre-contract position.
- Restitution prevents unjust enrichment; it can be available even without a contract.
- Specific performance is discretionary and requires a unique subject matter and inadequate legal remedy.
- A preliminary injunction requires likelihood of success, irreparable harm, balance of hardships, and public interest.
Worked example
A contracts to buy a machine for $10,000. At breach, the market price is $12,000. A has paid a $1,000 deposit. Reasoning: A's expectation damages are $2,000, the difference between market price and contract price. A also recovers the $1,000 deposit to avoid double counting; the total recovery is $3,000 if the deposit is separate, but courts typically credit the deposit against the damages. If the machine were unique, A might seek specific performance instead. Punitive damages are not available for ordinary breach.
Traps
- Awarding both expectation and reliance damages for the same loss.
- Forgetting mitigation of damages.
- Seeking specific performance for ordinary goods.
- Treating a liquidated damages clause as enforceable without checking reasonableness.