Remedies Flashcards
Common law expectation damages
The general measure of damages for a breach of contract are expectation damages. Expectation damages arise directly from the breach and are an attempt to put the non-breaching party in the same position it would have been in but for the breach.
How would a plaintiff recover expectation damages?
To recover, the damages must be:
1) caused by the defendant (actual cause);
2) foreseeable (proximate cause);
3) certain (damages cannot be speculative); AND
4) unavoidable (the plaintiff must take reasonable steps to mitigate his losses).
What must an award for expectation damages deduct?
An award of expectation damages must account and deduct for any costs the injured party avoided because of the breach.
What are consequential damages?
Consequential damages arise indirectly from the breach, and are awarded because of the injured party’s special circumstances.
How can a plaintiff recover consequential damages?
To recover consequential damages, the damages must be:
1) reasonably foreseeable at the time of contract formation;
2) arise from the plaintiff’s special circumstances that the defendant knew or had reason to know of; AND
3) certain (the damages cannot be speculative).
What can be deducted from an award of consequential damages?
An award of damages must account for and deduct for any costs the injured party avoided because of the breach.
What are punitive damages?
Punitive damages are awarded to punish the defendant.
When are punitive damages available?
Punitive damages are generally not available in a breach of contract action, but may be awarded in a contract involving corresponding tort claims that allow damages (i.e. fraud).
