Rethinking the Law of Contract Damages
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Rethinking the Law of Contract Damages

Victor P. Goldberg

In this series of chapters on contract damages issues, Victor P. Goldberg provides a framework for analyzing the problems that arise when determining damages, and applies it to case law in both the USA and the UK.
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Chapter 10: Consequential damages and exclusion clauses, US

Victor P. Goldberg

Abstract

Contracts often include language excluding compensation for consequential damages. However, the boundary between consequential and direct damages is a blurry one. I consider three classes of cases: wrongful termination, delay, and breach of warranty. This chapter argues that lost profits, when referring to the change in value of the contract after a wrongful termination would be direct damages; the hard case involves terminated dealers who had been paid indirectly for retailing services by the difference between the wholesale and retail price. Claims arising from delay would almost always be characterized as consequential damages. If a seller warranted a machine would produce at a level of 100, but it only produced at 80, the seller would be liable for the difference-the consequential damage exclusion would not apply.

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