Ks Remedy Question

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robertmane
Posts: 4
Joined: Fri Nov 25, 2011 11:50 pm

Ks Remedy Question

Postby robertmane » Thu Dec 15, 2011 12:53 pm

For a material breach I know the breaching party gets restitution damages in most cases, but what does the injured party get? Is it expectation damages? And then are these expectation damages off set from the restitution paid to the injured party?

target
Posts: 688
Joined: Tue Jul 26, 2011 6:40 pm

Re: Ks Remedy Question

Postby target » Thu Dec 15, 2011 2:26 pm

robertmane wrote:For a material breach I know the breaching party gets restitution damages in most cases, but what does the injured party get? Is it expectation damages? And then are these expectation damages off set from the restitution paid to the injured party?


I am not too certain that the breaching party gets restitution damages in most cases. They only do so, if they have conferred a benefit upon the non-breaching party, and the non-breaching party treated the breach as a total breach and filed for total damages.

If breach is material breach, the non-breach party can treat it as either a total or partial breach. If treat as total breach, then file for past and future damages (basically everything-expectation). If treat as partial breach, then file for past damages (basically reliance) and may allow the contract to continue.

Renzo
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Joined: Tue Dec 02, 2008 3:23 am

Re: Ks Remedy Question

Postby Renzo » Thu Dec 15, 2011 10:01 pm

I think you might be overthinking this; or else I don't understand what you are asking.

Generally, the breaching party gets no damages, and the harmed party gets expectation damages, so that the non-breaching party is placed in the same position as if they other party never breached. The breaching party won't necessarily get anything.

Restitution damages are generally used where expectation damages are either not very easy to calculate, or are for some reason inadequate. Rather than measuring damages against the baseline of what the non-breaching party lost, the court instead tries to measure damages by what the breaching party gained.

RPK34
Posts: 522
Joined: Tue Mar 02, 2010 6:31 pm

Re: Ks Remedy Question

Postby RPK34 » Thu Dec 15, 2011 10:22 pm

Renzo wrote:I think you might be overthinking this; or else I don't understand what you are asking.

Generally, the breaching party gets no damages, and the harmed party gets expectation damages, so that the non-breaching party is placed in the same position as if they other party never breached. The breaching party won't necessarily get anything.

Restitution damages are generally used where expectation damages are either not very easy to calculate, or are for some reason inadequate. Rather than measuring damages against the baseline of what the non-breaching party lost, the court instead tries to measure damages by what the breaching party gained.


I think OP's problem is that he is talking about restitution damages, when he really means restitution as a matter of law. Thus, if a homebuilder builds 50% of a house and then up and quits, he can still receive the fair market value for what he has completed.




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