Limitations on Damages

Limitations on Damages: independent/cumulative limitations or 3 elements that must be proven in order to recover damages
  • Avoidability: cannot recover damages that were avoidable
  • Foreseeability: cannot recover unforeseeable damages
  • Certainty: must prove to reasonable certainty

Rockingham County v. Luten Bridge Co. (35 F.2d 301, 1929)
  • Contractor completed bridge even though county breached by telling them to stop work
  • Trial court awarded damages
  • Appeals court says can’t pile up damages ("American rule")—π can’t hold ∆ liable for damages that could have been avoided)
  • Older idea was that, to prove breach, must be willing and able to perform/tender performance, THEN there is a breach
    • This really doesn’t make sense in an employment contract context
    • Now not the law
    • Also wasteful/useless to perform in this case
  • Damages?
    • π asked for full cost
    • Appeals court says can't recover full amount b/c could have avoided most of later costs
    • Can receive expected profit/expenses incurred up to time of breach, but cannot recover full cost including costs incurred later that could have been avoided
    • Expectancy: costs incurred + profit expected – cost incurred AFTER rescission/breach that could have been avoided
  • See R.2d §350 (p. 243): must mitigate damages ("duty to mitigate")
    • but note that this isn't really a duty, more like an incentive than a penalty
    • you are still entitled to same damage amount regardless
    • BUT see UCC 2-704(2), manufacturers encouraged to finish building goods so that it can be resold—invites Seller to make a judgment (good-faith judgment)
Tongish v. Thomas (840 P.2d 471, 1992)
  • Impossible to reconcile with Naval—each has own logic
  • Tongish is a farmer with a contract of sale with a co-op
  • Really a suit by the co-ops against Tongish
  • He sold to someone else to make more money
  • CO-OP: Co-op didn’t cover, so look at market price (market differential)
  • TONGISH: But were going to resell, so should only get their profit (the 55 cents/hundred for handling fee)
  • Court gives market diff (larger number)
    • Doesn’t want to encourage efficient breach in this case
    • Law doesn’t like windfalls, courts especially don’t want windfall to go to breaching party
    • Ignores problem of undermining security people take in counting on contracts
Parker v. Twentieth Century-Fox Film Corp. (3 Cal.3d 176, 1970)
  • Court agreed replacement offer was inferior to original offer
  • But dissent says replacement offer close enough
  • Final question: did employee act reasonably?
  • In some sense unfair windfall to breaching party, but overall social goal of "discouraging idleness" more important
    • But don't have to take work different in kind or that is "inferior"
Jacob & Youngs v. Kent (230 N.Y. 239, 1921)
  • Replaced "Reading" brand with a different brand, but otherwise identical
  • Typically damages are replacement/fix cost
    • Alternative measure of damages, very forgiving to builder
      • "Diminished value rule"
      • Only if innocent and minor
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