Student: Common Law and Specific Performance Essay

Submitted By abruce84
Words: 1352
Pages: 6

Prima Facie Elements: Cause of action any legal wrong for which a remedy may exist.
Defined prima facie case: A case in which the plaintiff has produced sufficient evidence of his or her claim that the case can go to a jury; a case in which the evidence compels a decision for the plaintiff if the defendant produces no affirmative defense or evidence to disprove the plaintiffs assertion.
Equity = Fairness
Breach of Contract = Action of Law
Legal complaint
Specific performance = action in equity
A decree (court ruling or official order) for specific performance is an equitable remedy (a relief given to an innocent party to enforce a right or compensate for the violation of a right (chart on p. 13—Action at law)

Example of cause of action:
Negligence (prove the prime facia elements)
1. Duty
2. Breach
3. Causation
4. Injury
Fruad (prove the prima facia elements)
1. Material misstatement of a fact
2. “Sinister” will deceit (dishonest practice or something done to mislead)
3. Justifiable reliance
4. Causation (cause or act of causing)
5. Injury

Legal = money damages

The Common Law be described as:
a.) General legal principles that have evolved over time through court decisions.
A cornerstone (vital person or thing) of both American and English legal system is:
b.) The doctrine (rule or principle) of stare decisis.
Defined stare decisis: A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.
When the highest court in a jurisdiction (such as the State of California) federal system has decided a fact pattern similar to the one currently in dispute and the law stated in the precedent (example for later action or decision) case clearly applies.
Precedent is not caste in stone because it might be outdated, social, technological advances and environment advances.
Unconscionable (morally unacceptable)

California Commercial Code (An example of California Commercial Code: 2-302)
More liberal (broad-minded, progressive politically or socially)
Inferior transactions
Applies to sale or lease of moveable goods
Traditional Contract Law
Very strict
All other contracts
3rd party agreement is called a Novation original lessee should request novation (renewal of contract—get new contract) The novation should state that Mr. Smog is free and clear and new contract is with lessor T.F. and Mr. Bankruptcy.

Equitable remedy: not money damages
Equity = require an action or stop an action
Injunctions (people need injunctions to stop something they wouldn’t be able to legally)
Write of mandate
Govt. agency required by the courts to do their job
Specific performance (equitable remedy) – subject matter is rare and or unique
Defined Equitable Remedy: Court-ordered action that directs parties to do or not to do something; such remedies include injunctive relief and Specific Performance. Alternatively, a non-monetary remedy, such as an Injunction or specific performance, obtained when a legal remedy such as money damages cannot adequately redress the injury.

Arbitrator Award
Does an arbitrator have to follow your agreement?
Not necessarily, the only way to appeal an arbitrator award is if you can prove:
1. Bias, undue influence, fraud or material mistake
2. Agreement violates public policy

Arbitrate—Expensive
American Arbitration Association
End Dispute
Jams
Trial de novo = start over with trial

Contractual Arbitration
1. Arbitrator does not need to be an attorney
2. Arbitrator does not have to fallow the law to make a decision on business principles
3. Arbitrator award is unreasoned
4. The award is binding and appeals happen 2% of the time (rare)
Judicial Arbitration—($5000 of less)
1. Must be an attorney
2. Follow law
3. Arbitration may be reasoned or unreasoned
4. Non-binding and can appeal

3 Types of Arbitration
1. Labor Arbitration
a. Arbitration attorney
b. Must follow the law (collective…