
Common Law: A court will not grant equitable relief if P
has an adequate remedy at law (i.e., unless P’s injury is
irreparable).
• An inadequate remedy at law is one where the
threatened or damaged property cannot be substantially
replaced with the damages that are its value.
• Uniqueness is a common measure of inadequacy of
legal remedy.
Continental Airlines and irreparable injury

D (Intra) acquired and sold to travel agents for resale
Continental’s discount coupons for flights (despite a nontransferability clause).
At some point, despite past
practice, Continental told D to stop but D continued selling
to travel agents.
• Continental wants an injunction to stop D/Intra’s
practice – does Continental have irreparable injury?
•
Does Continental have any proven monetary injury?
that mean there is no harm?
•
What harm is there to Continental’s interest?
Does
After Pardee & Continental – how can P show
irreparable injury?

Uniqueness of the property/right threatened or
damaged
◦ Personal Integrity – trying to avoid/discontinuing bodily
harm considered particularly “unique”
◦
◦ Constitutional rights – showing of violation is pretty much
automatically considered irreparable injury


Difficulty in estimating damages resulting from
tortious conduct
Loss of control over property that is rightfully
yours
Some things to keep in mind about irreparable
injury:



In the context of a permanent injunction, the req’mt is
reasonably weak -- can often find a way to argue that
damages won’t substantially replace the thing threatened or
damaged.
◦ But Ps must plead/offer proof of irreparable injury as it is
formally still a requirement. Frame your arguments of
harm in terms of irreparable injury.
The irreparable injury requirement is far more important with
preliminary injunctions/TROs.
Irreparable injury is a threshold requirement – P must meet
the requirement in order to get an injunction. BUT meeting
it does not automatically mean that P will get an injunction.
The Action (Writ) of Replevin – Brook v. James
Cullimore
Defined: Legal action to recover personal property in the hands of
another.
Process: P traditionally sought a prejudgment writ from the court
requiring that D turn over immediate possession of the property to P.
P was usually required to post a bond in case it later turned out D was
entitled to the property. Sheriff was responsible for executing the writ
if issued.
◦ Action/Writ is a form of specific relief (although legal in nature)
◦ Originally the writ was provisional in nature
◦ This is a mandatory order (not prohibitory) - doesn’t protect
against threatened dispossession
◦ No irreparable injury requirement
◦ Turnover effected by sheriff (no contempt power to enforce)
 Now more common for statutes to allow contempt to be used

Replevin is currently usually governed by statute.


Specific Performance = specialized form of injunction where P
asks court to order D to perform her obligations under a
contract.
• Irreparable injury/adequacy of legal remedy is threshold
issue here too
P (Campbell) wants specific performance of a contract for
delivery of carrots. What’s so unique about carrots – i.e., why
is the legal remedy inadequate?

When is an item not “substantially replaceable”
the context of a request for specific performance?
in

Damages
&
specific
performance
are
generally
interchangeable in terms of providing P his/her expectancy
◦ Damages: Gives P the difference between the market
($90/ton) price & the contract ($30/ton) price.
◦ Specific Performance: Forces D to give P carrots valued
by the market at $90/ton for the contract price of
$30/ton.
◦ So why were the Wentz brothers so opposed to specific
performance in Campbell Soup?

If damages and specific performance are usually equivalent,
why don’t courts allow SP and damages interchangeably (i.e.,
why have an irreparable injury requirement)?
◦ Are there reasons why courts might be reluctant to order
specific performance short of impossibility or “extremelydifficult-to” cover situations?



Was the land subject to the rental contract in Van Wagner
unique?
◦ http://vimeo.com/3002147
Why did the court refuse to grant specific performance?
Is Van Wagner’s reasoning consistent with the courts’
treatment of irreparable injury in Campbell Soup or Pardee?
◦ Assume your parents’ commissioned Picasso portrait of you?

One important factor re whether P has shown irreparable
injury is that damages are hard to value.
◦ This factor is a corollary to uniqueness – “That which is
hard to replace is usually difficult to value.”


Just because difficulty of valuation is a consideration re
irreparable injury, however, DOESN’T mean it is the only
way to show irreparable injury.
What else might have caused the court to deny the
injunction?