Date: Wed, 28 Mar 2007 17:35

From: Robert Stevens

Subject: The Golden Victory

Robert,

The claim made in the example of the ring is not a claim for consequential damages. It would, for example, not be excluded by the usual contractual language excluding claims for "indirect of consequential losses (or damage)". It is a claim for the difference in value and any future fact is irrelevant.

I know it isn't. That is the point.

In fact, the claim is very much like a claim in restitution.

No it is not. The claim is one for damages. The presence or absence of a gain by the jeweler in selling me the non-compliant ring is wholly irrelevant. The claim is to the difference in value between the ring I was promised and that I received. It is neither a claim for the gain made by the jeweler through the breach nor is it a claim to recover back that portion of the price which represents the difference between what I paid and what I would have paid for what was received. It is a claim substitutive for the contractual right to the ring. There is no analogy with restitution.

If, on the other hand, you claimed because your wife was upset,

I think I'd have to claim that I was upset because she was upset, but that is a claim for consequential loss. My point is that it is important to keep separate claims for damages substitutive for the right infringed (sometimes described as 'general' damages) and claims for consequential loss (sometimes described as 'special' damages.) The labels 'general' and 'special' are probably best avoided as they are used in so many different senses.

It is the same debate as split the House of Lords in Panatown. Can the employer claim the difference in value between the building he would have had if the builder had been careful and the building actually delivered, even though he suffered no consequential loss? Panatown was not a claim in restitution either.

Robert Stevens

<<<< Previous Message  ~  Index  ~  Next Message >>>>>