Equitable Remedies: Specific Performance
Total Page：16
File Type：pdf, Size：1020Kb
Load more
Recommended publications
-
The Texas Constructive Trust and Its Peculiar Requirements
Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship Spring 2018 The Texas Constructive Trust and Its Peculiar Requirements David Dittfurth St. Mary's University School of Law, [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Estates and Trusts Commons Recommended Citation David Dittfurth, The Texas Constructive Trust and Its Peculiar Requirements, 50 Tex. Tech L. Rev. 447 (2018). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. THE TEXAS CONSTRUCTIVE TRUST AND ITS PECULIAR REQUIREMENTS David Dittfurth" I. INTRODUCTION ........................................ 447 II. THESIS .............................................. 448 III. CONSTRUCTIVE TRUST MECHANICS ........................ 451 A . JudicialR em edy ........................................................................ 451 B. Statutory Rem edies ................................................................... 452 IV. THE THREE-ELEMENT RULE ........................................................... 454 A. KCM Financial, LLC v. Bradshaw...................454 B . K insel v. L indsey ...................................................................... 458 V. THE FUNCTION OF WRONGDOING.................................................. -
The Doctrine of Clean Hands
LITIGATION - CANADA AUTHORS "Clean up, clean up, everybody clean up": the Norm Emblem doctrine of clean hands December 06 2016 | Contributed by Dentons Introduction Origins Bethany McKoy Recent cases Comment Introduction On occasion, in response to a motion or claim by an adverse party seeking equitable relief, a party will argue that the relief sought should be denied on the basis that the moving party has not come to court with 'clean hands'. This update traces the origin of what is often referred to as the 'doctrine of clean hands' and examines recent cases where: l a moving party has been denied equitable relief on the basis that it came to court with unclean hands; and l such arguments did not defeat the moving party's claim. Origins The doctrine of clean hands originated in the English courts of chancery as a limit to a party's right to equitable relief, where the party had acted inequitably in respect of the matter. In the seminal case Toronto (City) v Polai,(1) the Ontario Court of Appeal provided some insight into the origins and purpose of the doctrine: "The maxim 'he who comes into equity must come with clean hands' which has been invoked mostly in cases between private litigants, requires a plaintiff seeking equitable relief to show that his past record in the transaction is clean: Overton v. Banister (1844), 3 Hare 503, 67 E.R. 479; Nail v. Punter (1832), 5 Sim. 555, 58 E.R. 447; Re Lush's Trust (1869), L.R. 4 Ch. App. 591. These cases present instances of the Court's refusal to grant relief to the plaintiff because of his wrongful conduct in the very matter which was the subject of the suit in equity."(2) Although the court declined to use the doctrine to dismiss the appellant's action for an injunction in that case, it did set the stage for the maxim's future use in Canadian courts. -
The Restitution Revival and the Ghosts of Equity
The Restitution Revival and the Ghosts of Equity Caprice L. Roberts∗ Abstract A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases for "suits at common law" satisfying specified dollar amounts. Restitution originated in law, equity, and sometimes both. The Restatement notably attempts to untangle restitution from the law-equity labels, as well as natural justice roots. It explicitly eschews equity’s irreparable injury prerequisite, which historically commanded that no equitable remedy would lie if an adequate legal remedy existed. Can restitution law resist hearing equity’s call from the grave? Will it avoid the pitfalls of the Supreme Court’s recent injunction cases that return to historical, equitable principles and reanimate equity’s irreparable injury rule? Losing anachronistic, procedural remedy barriers is welcome, but ∗ Professor of Law, West Virginia University College of Law; Visiting Professor of Law, The Catholic University of America Columbus School of Law. Washington & Lee University School of Law, J.D.; Rhodes College, B.A. Sincere thanks to Catholic University for supporting this research and to the following conferences for opportunities to present this work: the American Association of Law Schools, the Sixth Annual International Conference on Contracts at Stetson University College of Law, and the Restitution Rollout Symposium at Washington and Lee University School of Law. -
MARSHALLING SECURITIES and WORDS of RELEASE
MARSHALLING SECURITIES and WORDS OF RELEASE Note on Hill v Love (2018) 53 V.R. 459 and Burness v Hill [2019] VSCA 94 © D.G. Robertson, Q.C., B.A., LL.M., M.C.I.Arb. Queen’s Counsel Victorian Bar 205 William Street, Melbourne Ph: 9225 7666 | Fax: 9225 8450 www.howellslistbarristers.com.au [email protected] -2- Table of Contents 1. The Doctrine of Marshalling 3 2. The Facts in Hill v Love 5 2.1 Facts Relevant to Marshalling 5 2.2 Facts Relevant to the Words of Release Issue 6 3. The Right to Marshal 7 4. Limitations on and Justification of Marshalling 9 4.1 Principle 9 4.2 Arrangement as to Order of Realization of Securities 10 5. What is Secured by Marshalling? 11 5.1 Value of the Security Property 11 5.2 Liabilities at Time of Realization of Prior Security 12 5.3 Interest and Costs 14 6. Uncertainties in Marshalling 15 6.1 Nature of Marshalling Right 15 6.2 Caveatable Interest? 17 6.3 Proprietary Obligations 18 7. Construction of Words of Release 19 7.1 General Approach to the Construction of Contracts 19 7.2 Special Rules for the Construction of Releases 20 7.3 Grant v John Grant & Sons Pty. Ltd. 22 8. Other Points 24 8.1 Reasonable Security 24 8.2 Fiduciary Duty 24 8.3 Anshun Estoppel 25 This paper was presented on 18 September 2019 at the Law Institute of Victoria to the Commercial Litigation Specialist Study Group. Revised 4 December 2019. -3- MARSHALLING SECURITIES and WORDS OF RELEASE The decisions of the Supreme Court of Victoria in Hill v Love1 and, on appeal, Burness v Hill2 address the doctrine of marshalling securities and also the construction of words of release in terms of settlement. -
Order of Permanent Injunction
~ I() / ClOSFri IN TH UNTED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ~ :-~:~~rx:: FI'l'. ,.¡lÕ '-- . ...'íF=~ ,::,.~-'--'f;~."' ._---, ,,~.-,.' UNTED STATES ) H ii ii,; l' C( r ) ~t'rA~~ c" C\ f Plaintiff ) ) v. Civil No. 02-5340 (JAti O:30_,_~~~!'~ ) \:ViUJMfi T. 'vLt::Rh ) RICHA HA a/a ) RICK BRYAN, d//a TAXGATE, ) ENTERED ON ) THE DOCKET ) Defendant. ) MAR 3 1 2003 ORDER OF PERMNENT INJUNCTION 8~!AM T....WALSH,Y .--CLERK " (Deputy Cierk) Plaintiff the United States, has filed a Complaint for Permanent Injunction against the defendant, Richard Haraka, aIa Rick Bryan d//a Taxgate. Haraka does not admit the allegations of the complaint, except that he admits that the Court has jurisdiction over him and over the subject matter of this action. By his Consent, which has been previously filed, Haraka law, and consents to the entry of waives the entry of findings offact and conclusions of this Permanent Injunction. A. The Court has jurisdiction over this action under 28 U.S.c. Sections 1340 and 1345, and under 26 U.S.C. Sections 7402 and 7408. B. The Court finds that Haraka has neither admitted nor denied the United States' allegations that Haraka is subject to penalty under 26 U.S.C. Sections 6700 and 6701. C. It is hereby ORDERED that Richard Haraka, a/a Rick Bryan d//a Taxgate, and, in addition, his associates, senior members, purported "tax experts," representatives and other affliates, and all others in active concert or participation with him who receive actual notice of i 1 .~ this Order, are permanently restrained and enjoined from directly or indirectly: 1. -
ERISA Fiduciaries Cross-Dress Legal Remedies As Equitable
Liberty University Law Review Volume 3 Issue 1 Article 6 March 2009 Not-So-Equitable Liens: ERISA Fiduciaries Cross-Dress Legal Remedies as Equitable Brandon S. Osterbind Follow this and additional works at: https://digitalcommons.liberty.edu/lu_law_review Recommended Citation Osterbind, Brandon S. (2009) "Not-So-Equitable Liens: ERISA Fiduciaries Cross-Dress Legal Remedies as Equitable," Liberty University Law Review: Vol. 3 : Iss. 1 , Article 6. Available at: https://digitalcommons.liberty.edu/lu_law_review/vol3/iss1/6 This Article is brought to you for free and open access by the Liberty University School of Law at Scholars Crossing. It has been accepted for inclusion in Liberty University Law Review by an authorized editor of Scholars Crossing. For more information, please contact [email protected]. COMMENT NOT-SO-EQUITABLE LIENS: ERISA FIDUCIARIES CROSS-DRESS LEGAL REMEDIES AS EQUITABLE Brandon S. Osterbindt I. INTRODUCTION The Supreme Court of the United States has the unfortunate role of finding the law' and determining what it is.2 While this may seem to be a simple and intuitive task, interpreting the Employee Retirement Income Security Act (ERISA) 3 inevitably results in a "descent into a Serbonian bog wherein judges are forced to don logical blinders and split ' the linguistic atom to decide even the most routine cases. The average personal injury plaintiff does not appreciate the nature of the litigation' that results in the achievement of the plaintiff's ultimate goal: t Brandon S. Osterbind graduated from Liberty University School of Law in May 2008 and is a judicial clerk to the Honorable William G. Petty of the Court of Appeals of Virginia. -
1 Builders Risk Insurance
BUILDERS RISK INSURANCE: Utilizing Builder’s Risk Policies to Help Settle Construction Defect Cases Finding the Oasis in the Desert Gregory N. Ziegler Rebecca M. Alcantar Katherine K. Valent MACDONALD DEVIN, P.C. I. What is Builder’s Risk insurance? Builder’s risk insurance is a unique form of first-party property insurance that typically covers a structure under construction, the materials and equipment used in construction, and the removal of debris of covered property damaged by a covered loss. Builder’s risk insurance policies are typically purchased by the project general contractor or the owner. It is sometimes called “course of construction” coverage because it is only intended to apply during the course of construction, erection, and fabrication of a structure until the construction is considered completed. Coverage typically commences on the “start date” of the project and ends when the work is completed. i. Who is covered? Builder’s risk policies cover the interests of owners, contractors, subcontractors and others involved in the construction project. While contractors and subcontractors are typically covered, it’s a good idea for contractors and subcontractors to request being named insureds on the policy. In comparison, liability insurance covers damage to third parties, such as passersby injured by construction or for damage to adjoining property. ii. What does it cover? Typically, it is written on an “all risks basis” and covers direct physical loss from all causes except those specifically excluded. This does not mean it covers everything, so it is important to look at the exclusions. Although it is typically limited to the construction site, an insured can request coverage for property stored off site and in-transit. -
Remedies: Appropriate Equitable Relief Under ERISA After Montanile
ACI’s 13th National Forum on ERISA Litigation October 27-28, 2016 Remedies: Appropriate Equitable Relief Under ERISA After Montanile R. Joseph Barton Eric G. Serron Stephen Rosenberg Partner Partner Partner Cohen Milstein Sellers & Toll PLLC Steptoe & Johnson LLP The Wagner Law Group Tweeting about this conference? #ERISA Hot Topics in Remedies •What is “appropriate equitable relief” under ERISA § 502(a)(3)? •Claims against participants & non-fiduciaries •Claims against fiduciaries for individual recovery #ERISA ERISA § 502(a)(3) “a civil action may be brought by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the Plan, or (B) to obtain other appropriate equitable relief (i) to redress [] violations [of ERISA or the terms of the plan] or (ii) to enforce any provisions of this subchapter or the terms of the plan.” #ERISA Claims Against Participants and Non- Fiduciaries • Montanile v. Bd. Of Trustees of Nat. Elevator Indus. Health Benefit Plan, 136 S.Ct. 651 (2016): • 502(a)(3) does not permit equitable lien by agreement against beneficiary’s general assets. #ERISA Montanile continued • ERISA health plan paid for Montanile’s medical expenses after he was hit by drunk driver. Montanile received a $500k settlement from drunk driver. • Plan has subrogation clause and health plan sought reimbursement; attorney refused the request and paid the settlement to Montanile. • Plan sued under 502(a)(3) for equitable lien. • Held: Where funds are completely dissipated on non- traceable items, no 502(a)(3) suit allowed to attach to participant’s general assets. -
Good Faith, Unconscionability and Reasonable Expectations S M Waddams* the Expression 'Good Faith' Makes Frequent Appearances in Contract Law
Good Faith, Unconscionability and Reasonable Expectations S M Waddams* The expression 'good faith' makes frequent appearances in contract law. The concept is firmly established in American jurisdictions because of its inclusion in the Uniform Commercial Code,1 and the Restatement of Contracts.2 It is in the new Quebec Civil Code.3 It forms an important part of many other civil law systems, and appears in a number of international documents applicable in common law jurisdictions.4 Several cases in Commonwealth jurisdictions have adopted it in various contexts.5 There has been much academic writing on good faith. English and Commonwealth writers have been divided in their opinions on whether the adoption of a general concept of good faith would be desirable.6 American writers, however, rarely discuss this question: the concept is sufficiently firmly fixed now for this to be of theoretical interest only.7 The focus of American writing is on what meaning should be given to the expression, and how it applies in different contexts. On a question of this sort, where the law is in many jurisdictions apparently in the process of change, two levels of analysis are necessary. It is of interest to examine the probable effect and utility of adopting, in English and Commonwealth law, a general doctrine of good faith. This process involves the identification of problems likely to be caused by the doctrine. It is of theoretical as well as of practical interest, and might well tend to suggest caution on the part of law reformers, legislative, judicial, and academic. But since the concept of good faith has found favour in several jurisdictions where it is unlikely to be decisively rejected, an equally important function of analysis is to suggest ways in which the problems of integrating good faith with other contractual concepts can be minimised. -
An Economic Analysis of Law Versus Equity
AN ECONOMIC ANALYSIS OF LAW VERSUS EQUITY Henry E. Smith* October 22, 2010 I. INTRODUCTION Like “property,” the terms “equity” and “equitable” are hardly missing from legal discourse. They can refer to fairness, a type of jurisdiction, types of remedies and defenses, an owner’s stake in an asset subject to a security interest and other ownership interests, as well as a set of maxims, among other things. These uses of “equity” and “equitable” all trace back to courts of equity, which, with some exceptions, ceased to exist as separate courts or even as a distinct form of jurisdiction by the early twentieth century.1 So the term “equity” might seem to be an etymological curiosity. This paper challenges that view. It argues that the notion of equity is functionally motivated and can be given an economic analysis under which it makes sense to have a separate decision making mode that is loosely identified with historical equity jurisdiction and jurisprudence. * Fessenden Professor of Law, Harvard Law School. Email: [email protected]. I would like to thank Bob Ellickson; Bruce Johnsen; Louis Kaplow; Steve Spitz; and audiences at the Fourth Annual Triangle Law and Economics Conference, Duke Law School; the George Mason University School of Law, Robert A. Levy Fellows Workshop in Law & Liberty; the Harvard Law School Law and Economics Seminar; the Workshop on Property Law and Theory, New York University School of Law; the University of Notre Dame Law School Faculty Workshop; the International Society for New Institutional Economics, 14th Annual Conference, University of Stirling, Scotland; and the Carl Jacob Arnholm Memorial Lecture, Institute of Private Law, University of Oslo Faculty of Law. -
Practical and Substantive Aspects of Subrogation
PRACTICAL AND SUBSTANTIVE ASPECTS OF SUBROGATION Eric A. Dolden and Dan C. Richardson September 2015 [Author] © Dolden Wallace Folick LLP 1 CONTACT LAWYER Eric Dolden Dan Richardson 604.891.0350 604.891.5251 [email protected] [email protected] TABLE OF CONTENTS I. INTRODUCTORY COMMENTS ....................................................................................4 II. STATUTORY AND CONTRACTUAL PROVISIONS RECOGNIZING THE RIGHT OF SUBROGATION ....................................................6 1. Statutory Right of Subrogation ...........................................................................6 2. Contractual Right of Subrogation .......................................................................8 III. PROHIBITIONS ON SUBROGATION ........................................................................11 1. The Insurer As “Volunteer” ..............................................................................11 2. Covenants To Insure - The "Doctrine Of Legal Immunity” ..........................21 (a) Commercial tenancies ............................................................................22 (b) The scope of a covenant to insure .........................................................38 (c) Covenants to insure in other commercial settings .............................40 (d) Covenants to insure and indemnification ...........................................43 (e) "Legal immunity" in the statutory setting ...........................................45 (f) The liability of employees: Greenwood Shopping Plaza -
Imagereal Capture
EQUITABLE ADEMPTION WITHIN THE FAMILY Introduction A parent's generosity towards a child may often cause a family dispute. In particular, if one child has received a substantial gift of money or other material benefits during the parent's lifetime, other children will often look to the parent's will, and may invoke the law with regard to its provisions, in order to redress what they perceive as an injustice to themselves. A parent, it is said, has a duty to treat children equally. This is not, of course, in any sense a legal duty; but the law nevertheless recognizes that in some cir- cumstances a child benefited by a parent should account for that benefit to his or her brothers and sisters. The mechanism available for this purpose is the equitable doc- trine of ademption,' otherwise known as the doctrine of satisfac- *R.A , LI,.B., LL.M. Senior Lecturer in Law, University of Western Australia 1. The word "ademption" in its legal usage applies to three quite different situations: first, where the subject-matter of a specific legacy is disposed of by a testator inter uluos or otherwise ceases to exist so that it forms no part of his estate at death; second, where a legacy is glven for a particular purpose and is followed by a gift tnter u~uosby the testator to the legatee for substantially the same purpose; third, where a portion given Inter L'ZUOS is regarded in equity as an adernption of a prior testamentary portion. This article is concerned only with the third of these situations.