Ks Remedy Question Forum

[robertmane]

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]

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]

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]

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.