Contracts - Damages

Whether damages were foreseeable?

Damages are foreseeable if they are:

1. contemplated at the time the contract is made with a focus on the breaching party;

2. losses for which defendant had reason to know; and

3. losses must be foreseeable as a probable result of the breach; does not extend to remote losses.

Whether the damages were reasonably certain

Damages must be reasonably certain in both nature and origin; neither can be speculative

nature

reasonably quantifiable in a dollar amount after the breach

origin

resulting from the breach

whether there was a duty to mitigate

1. Damages are not recoverable for loss that the injured party could have avoided without undue risk, burden, or humiliation; and

2. the injured party is not precluded from recovery to the extent that he has made reasonable but unsuccessful efforts to avoid loss.

Whether there is an employee’s duty to mitigate

Must find Suitable employment, Substantially equivalent to the position lost; and suitable to a person’s background and experience

General measure partial breach

Loss in value + other loss

general measure total breach

loss in value + other loss - cost avoided - loss avoided

real estate seller breach

FMV - K price + other loss

real estate buyer breach

K price - FMV + other loss

employee breach

cost of replacement + other loss

contractor breach

cost of completion of diminution in value

diminution in value

determine if:

1. substantial performance has already been completed

2. unreasonable economic waste to cure breach

3. breach unintentional

4. breach was a trivial defect