1. Contract Damages and Remedies
Limitations on Damages Recovery
Certain – the amount lost needs to be calculable with reasonable certainty.
Foreseeable – the breaching party should know of the possibility, otherwise unfair to add this risk of loss.
Avoidable – no “windfall” – non-breacher should act reasonably to try to avoid unnecessary losses.
These are necessary before money damages (aka “legal damages) are awardable. Usually not a problem except for expectation special ones.
Failure of a damages request to satisfy these would lead a court to find other damages (restitution, reliance, alternative valuation (e.g., loss in value of real property rather than cost of replacement), even equitable damage.
Liquidated damages – contractually anticipated damages included in contract, if reasonably calculated, easier to anticipate than calculate after breach, and so long as they are not punitive.
Example of uncertain could be new business profits (sometimes).
After years of following the “economic loss rule,” the Fl. Supreme Court ended the practice of perfunctorily limiting recovery to contract damages and not awarding tort-related damages (infliction of emotional distress for outrageous behavior, etc.) where damages only based on contract breach were sought. More of a clarification to rectify sloppy practice, parties seeking damages for contract breach may include tort-based damages so long as they are distinctly, separately pleaded and proved.
© 2018 Paul J. Carrier, Paul J Carrier, LLC Blue – Category Recognition; White – Specific Category; Yellow – “Black Letter” Rules (to be memorized); Green – Main Factual Issues – Analysis; Red – Upper-Level, Integrated Comprehension