IX. Equitable

I. EQUITABLE ESTOPPEL

Elements to prove:

  1. conduct amounting to a false representation or concealment of material facts;
  2. intention that such conduct will be acted upon by the other party;
  3. knowledge of the real facts by the party to be estopped;
  4. lack of knowledge of the true facts by the party seeking equitable estoppel;
  5. reliance upon the conduct of the party estopped by the party seeking relief; and
  6. a prejudicial change in the aggrieved party’s position.
equitable estoppel deed indemnification

EQUITABLE

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II. EQUITABLE FRAUD

Elements to prove:

  1. misrepresentation;
  2. concealment;
  3. of material facts; and
  4. without intention to defraud.

III. EQUITABLE SUBROGATION

Elements to prove:

  1. where the property of one person;
    1. is used in discharging an obligation owed by another; or
    2. a lien upon the property of another;
  2. under such circumstances that the other;
  3. would be unjustly enriched;
  4. by the retention of the benefit conferred.

IV. ESTOPPEL BY DEED

Elements to prove:

  1. a party to a deed and his or her privies;
  2. from denying;
  3. as against another party;
  4. the force and effect of the deed;
  5. by any evidence of inferior solemnity.

V. ESTOPPEL IN PAIS

Elements to prove:

  1. a party;
  2. because of his or her conduct;
  3. is denied the right to plead or prove;
  4. what would otherwise be an important factor in the case;
  5. the act or omission must have been inconsistent with the position subsequently taken by the person sought to be estopped;
  6. must have been done not only with the intention of influencing the conduct of the person who asserts the estoppels; and
  7. must have, in fact, so influenced him.

VI. INCORPORATION (OR CORPORATION) BY ESTOPPEL

Elements to prove:

  1. when an entity was not fully formed at the time a contract was executed;
  2. nonetheless, an opposing party has recognized an entity’s corporate status;
  3. has dealt with said entity in that manner;
  4. those past dealings are not dependent on the entity’s corporate status; and
  5. thus, the opposing party will be precluded from arguing that the entity lacks capacity to bring suit.

VII. IMPLIED INDEMNIFICATION

Elements to prove:

  1. a person who;
  2. in whole or in part;
  3. has discharged a duty;
  4. that is owed by him or her;
  5. as between himself or herself and another; and
  6. that should have been discharged by the other.

VIII. IMPOUNDING PROPERTY TO PAY DEBT

Elements to prove:

  1. chattel in the custody of the sheriff;
  2. may be impounded pending judgment or further order of the court;
  3. upon motion of any person claiming the right to its possession; and
  4. upon notice to the sheriff and to all parties to the action.

IX. IMPRESS A TRUST

Elements to prove:

  1. there must be a confidential relationship;
  2. wherein one party relies;
  3. to his or her detriment;
  4. upon a promise of another;
  5. that promise is subsequently breached; and
  6. results in unjust enrichment for the person.

X. INJUNCTIONS (PRELIMINARY)

Elements to prove:

  1. a likelihood of success on the merits;
  2. irreparable harm absent the relief sought: and
  3. the balance of equities in its favor.

XI. REFORMATION OF WRITTEN INSTRUMENTS

Elements to prove:

  1. the writing in question was executed;
  2. under mutual mistake; or
  3. unilateral mistake coupled with fraud.

XII. RESTITUTION DESPITE CONTRACT BREACH

Elements to prove:

  1. the amount to which the seller is entitled by virtue of terms liquidating the seller’s damages; or
  2. in the absence of such terms, 20 percent of the value of the total performance for which the buyer is obligated under the contract or $500, whichever is smaller; and
  3. the buyer’s right to restitution is subject to offset to the extent that the seller establishes
    1. a right to recover damages; and
    2. the amount or value of any benefits received by the buyer directly or indirectly by reason of the contract.

XIII. RESULTING TRUST

Elements to prove:

  1. express trust fails in whole or in part; or
  2. express trust is fully performed without exhausting trust estate; or
  3. where property is purchased and purchase price is paid by one person;
  4. at his or her direction; and
  5. vendor conveys property to another person.

XIV. SPECIFIC PERFORMANCE

Elements to prove:

  1. a contract;
  2. that the plaintiff substantially performed;
  3. its contractual obligations;
  4. was willing and able to perform its remaining obligations;
  5. defendant was able to convey the property; and
  6. there was no adequate remedy at law.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.