Martin writes

"Robert mentions Grade A and Grade B apples, saying that "It does not matter
that Grade B apples are perfectly good for my purposes so that I suffer no
loss". Yet products made from Grade A ingredients can command a higher value
than those made from Grade B ingredients, as a look at the shelves of any
supermarket will demonstrate (organic fruit juice costs more than
non-organic; orange juice from pressed oranges costs more than that made
from concentrate; and so forth). "

Absolutely, they *might* command a higher price and there *might* be
consequential loss. However, it doesn't matter. In quantifying actual loss
we are concerned with what loss is actually suffered. If, as a matter of
fact the price the plaintiff charges or can charge is completely unchanged
by whether Grade A or Grade B apples are used then there is no consequential
loss. There might have been, but there was not. It doesn't matter one way or
the other in relation to the recoverability of the difference in value
between Grade A and B apples.


"I would make a similar point about the example I have heard Robert mention
before of the platinum wedding ring that turns out not be platinum: the fact
that the owner does not feel he has suffered a loss, because the ownership
of the poorer quality ring gives rise to an enjoyable tale and the ring has
sentimental value attached to it anyway, does not detract from the fact that
a platinum ring has an objective value much higher to that of a merely
platinum coloured ring made from something else."

Absolutely, but in my example (which is the true story at the start of my
paper) the ring is never acquired by the promisee. It was a gift for a third
party. So, my wife's wedding ring probably does have a lower re-sale value,
but it isn't my ring and so that lower value can't constitute a loss
suffered by me. If I had to buy a replacement ring that would constitute a
loss. But I never will and so that loss will never be incurred. The lower
re-sale value might constitute a loss suffered by her, but she is not a
party to the contract. We are concerned with the damages recoverable by the
promisee.


"Besides, as I said earlier, the primary remedy for addressing not getting
what you bargained for should - where possible - be enforcement. If one
chooses not to use that remedy, then trying to use damages to get more than
you would have had the defendant performed seems to me an impermissible
attempt to corrupt the fundamental primary principle of damages."

A bit Scottish for my tastes, but a wider debate. I think this case is right
for the reason given by the judges.
Rob