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Foundational Principles of Contract Law$
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Melvin A. Eisenberg

Print publication date: 2018

Print ISBN-13: 9780199731404

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780199731404.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 16 June 2021

Other Limitations on Expectation Damages

Other Limitations on Expectation Damages

Litigation Costs, the Time Value of Forgone Gains, and the Risk of the Promisor’s Insolvency

(p.255) Twenty Other Limitations on Expectation Damages
Foundational Principles of Contract Law

Melvin A. Eisenberg

Oxford University Press

Chapter 20 concerns limitations on expectation damages other than the principle of Hadley v. Baxendale and the certainty principle. The most significant limitation is that generally speaking, under the common law each party to a dispute pays its own litigation costs—attorney’s fees, expert fees, and so forth—win or lose. Oher limitations include the time value of forgone gains—especially since even if prejudgment interest is granted, it will generally be at a lower rate than the actual market rate for interest—and the risk of the promisor’s insolvency. Accordingly, a promisee will never be indifferent between performance and damages.

Keywords:   litigation costs, time value, forgone gains, promisor, s insolvency, expectation damages

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