Basic Process for Assessing Damages: 97 Select  interest that deserves vindication 97 a. Restitution 97



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I. Damages 97

Basic Process for Assessing Damages: 97

1. Select  interest that deserves vindication 97

a. Restitution 97

i. Idea that people should live up to bargains. A victim of a breached bargain should at least get their money back. 97

ii. Restitution is measured by benefit to ∆  designed to deprive wrongdoer of ill-gotten gains 97

b. Reliance 97

i. Compensates  for expenditures made in reliance on promise by ∆ 97

ii. Restores status quo prior to promise being made 97

c. Expectation 97

i. Puts  in position they would have been in had the bargain been fulfilled 97

ii. ∆ must either keep promise (specific performance) or provide monetary equivalent of keeping promise (damages) 97

2. How do you apply the measure of damages? 97

3. Are there any relevant principles that moderate/limit the damages award, to balance out ∆ legitimate interests? 97

a. Mitigation 97

b. Remoteness 97

Expectation Damages 97

General Principles & Lost Profits 97

Theory and Background (from Fuller & Perdue) 97

In some ways, restitution and reliance damages are easy to accept as appropriate remedies in contract law  they are about redressing the balance between  and ∆, and are easy to line up with shared moral values. 97

The idea is that people shouldn’t make promises then break them, especially when you know someone will waste time and effort as a result. 97

Expectation damages are different: not restoring the harm, but giving  the value of the promise. This is a moral concept, but perhaps one not so commonly shared. 97

Expectation damages didn’t originally exist in K law 97

They become important in the planning done by individuals through private interactions. 97

To achieve stability in a complex capitalist economy, we need certainty, future planning, credit. 97

It’s about giving planners in the marketplace the security to trade. 97

Reliance and restitution don’t sufficiently facilitate these interests. 97

Restitution doesn’t give you anything extra 98

Reliance would require  to prove all the minute ways in which  had relied on ∆ promise, which are just generally included in expectation damages. 98

Note: if you include opportunity costs in reliance damages, and went through the whole minute assessment, people could essentially get expectation damages through reliance damages anyway. 98

Economic and Juristic Rationales 98

Administrative: facilitating reliance 98

Economic: allows trading on present value of the K. 98

Claiming Lost Profits 98

Canlin Ltd v. Thiokol Fibres Canada [1983, ONCA] 98

An example of a court protecting the expectation interest, despite arguments of remoteness and perhaps certainty of damage 98

Default: you get the difference b/w goods paid for and goods received; but this is predicated on a duty/ability to mitigate. Where that can’t be done, the presumption is rebutted. 98

Facts:  bought product from ∆ to manufacture swimming pool covers. Material defective, shreds into customers’ pools. 98

Issue/Arguments: 98

argues, per presumption stated in s. 56(3) of the Sale of Goods Act, that the proper measure of damages should be limited to the difference between actual value and value goods would have had if ≠ defective. 98

claims for lost profits in addition, because their business suffered as a result of the damage to their reputation. 98

Held: for . Entitled to lost profits as well as difference in value. 98

Reasons: s. 56(3) of SoG Act doesn’t apply here. 98

An assumption behind the provision: if defect is discovered early enough and buyer acts quickly enough (as obligated to mitigate), then the buyer can find new materials, replace the defective product and move on with their business. 98

Under this assumption, ∆s are normally only liable for the notional cost that would have been incurred to buy new materials. However, in this case the defect wasn’t discovered soon enough and s were shut out of the market for a few years as a result of the fiasco. 98

This is sufficient “evidence to the contrary” as required to avoid the application of s. 56(3)  that provision wouldn’t give them what they lost. 98

Problems of Determining the Value of a Bargain: Avoiding Double Recovery 98

R. G. McLean Ltd. v. Canadian Vickers Ltd. [1971, ONCA] 98

Avoiding double recovery 98

Facts:  printing co bought new printing press from ∆, didn’t work properly. TJ awarded damages for lost profits and the cost of the press. 99

Issues/Arguments: 99

(1) ∆ argued that TJ award was double compensation. 99

(2) What happens when  doesn’t have sufficient funds to mitigate? 99

Held: TJ overruled; sent back for new trial 99

Re  inability to mitigate: 99

shouldn’t be saddled with burden; the level of risk of a vendor of machinery should not vary depending on who they sell to. 99

It’s different from the thin skull rule in tort, likely because of the commercial context. 99

The true measure of expectation damages is putting  in position they would have been in had the K been performed. 99

would have earned profit, but would have had to incur an expenditure to acquire the press. 99

CA refers back to new trial to determine the amount of profit after expenditure 99

BUT: this isn’t enough  would have spent $ on the press, but then also would have had a working press. 99

So, consider the depreciation value of the press in the two year delay, then calculate profit by deducting that depreciation. Alternately, consider the cost of buying a new press. 99

Note: realistically,  had paid $15,000 already, which is likely roughly equivalent to the depreciated cost, so really the TJ did award net profits in the end. 99

The CA was right about the rule generally, but you shouldn’t deduct 100% of the value of equipment from a claim of lost profits over only two years. 99

Mitigation: ∆ offered to take back press and refund, but  declined. Obligation to mitigate. 99

M.G. Baer, “The Assessment of Damages for Breach of Contract – Loss and Profit” 99

Gross profits include your expenses 99

Doctrine of Election 99

Profit or Capital 99

THE ISSUE: Double Counting 99

In McLean, the press didn’t work so they claimed lost profits. But hadn’t paid for the press, and TJ didn’t deduct cost of press from lost profits. 99

Doctrine of Election means you can’t get both. That would be double-counting, because if  had actually earned the profits, they would also have paid for the press. It’s about putting  in the position as if K had actually been performed. 99

Note: CA applied the doctrine too broadly in McLean. 99

Yes,  would have to pay for press to earn the profit, but had K been performed they would also have had a valuable press. 100

So, can’t deduct the whole cost of the press  just deduct the depreciated value. 100

Assess the proportion of the working life of the press that is attributable to the time period for which profits are being claimed, and deduct that proportion of the press’ value from the profits. 100

Overlap of Expenditures and Lost Profits 100

In McLean, the CA also overturned the TJ’s method of calculating lost profits in relation to expenditures. 100

General principle: you can either claim the money wasted or sue for the profit you should have had. Can’t have both – that would be overlap. 100

Also, you can’t claim wasted expenditures in excess of the amount you would have had to spend to make the profit. 100

In McLean, the TJ awarded net profit, not gross profit. So, really, even though he included profit and expenditures, his calculation was actually in keeping with the doctrine of election. So, they SHOULD have been allowed to claim lost profit and expenditures. 100

Waddams: profit must be net profits, not gross potential income 100

Problems of Proof 100

CA in McLean found that the lost profits claimed were exaggerated. 100

Don’t calculate profit solely on the theoretical productive capacity of the machine  must also consider the actual likely work that was available and/or would have been done. 100

This puts a significant burden of proof on the , but courts won’t hold ∆s to the assumption that every party they deal with is running the best possible business (most competitive, most profitable) in that industry. 100

Rather, a court will consider industry averages and projections, and compare with ’s actual track record to try to establish some kind of ratio. 100

Ticketnet Corp v. Air Canada [1998, ONCA] – Laskin JA 100

Doctrine of Election: gets the whole “net vs. gross profits” thing right. 100

The burden of proof is on  to prove damages, but where ∆ wrong has prevented precise proof,  can rely on projections (discounted to reflect certain contingencies) 100

Facts 100

created an online ticket-booking software, made a deal w/ ∆ to jointly develop it and share revenues for a set period. 100

repudiated and at first  expected to get the software back but ultimately ∆ never returned it. 100

entered into new K with American Airlines. Different terms, but involved payment to  of 750k for the software. When it became clear they weren’t getting the software back,  had to renegotiate their K with American Airlines, and lost out on the 750k. 101

Issue/Arguments:  sued ∆ for lost profits and lost business opportunity. 101

(1)  claimed $12 million in lost profits. ∆ accepted breach but argued damages should be limited to 750k, the difference between the first and second AA agreements. 101

(2)  also sought additional expenses not allowed at trial 101

Held: Damages NOT limited to 750K; TJ ruling on additional expenses upheld. 101

Reasons 101

Issue (1) – Damages limited to 750k? 101

Arguments: 101

argued the only value lost was the value of the asset. Had managed to parlay the repudiated agreement into a new agreement with AA, but then the lost software meant they lost $750k. 101

Argued that lost capital is better representative of the lost profit  ∆ said that since AA was willing to buy and  was willing to sell for $750k, that is an accurate measure of the damages suffered. 101

The concern is against double-recovery: lost profits are logically contained in the value of the assets. The value of a business asset is the discounted stream of revenue that will be earned by that asset. 101

In principle, this argument is sound. If there is a radical difference between the value an asset is sold for and the damages claimed for it, something is amiss. 101

But in this case, there is a difference: the price of a share sale conducted by shareholders under financial pressure (due to ∆ actions) and eager to mitigate is NOT a proper measure of the value of the company. 101

shouldn’t profit from the poor bargaining position it left  in. 101

Plus,  wasn’t seeking damages for the past/present value of the software, only for the lost business opportunity due to ∆ breach of agreement and subsequent injunction. 101

Issue (2) – calculation of lost profits: inclusion of expenses in damages 101

Damages for Breach of K w/ Alternative Modes of Performance 102

Expectation damages are not necessarily the ’s actual expectation, but what  has a right to expect. 102

What if a party could have performed K duties in more than one way, but failed to perform at all? 102

It has been argued that we should measure the damages based on how ∆ would most likely have performed the K. 102

However, in 2004 the SCC unanimously rejected that argument: 103

Hamilton v. Open Window Bakery [2004, SCC] 103

Stands for: minimum performance principle 103

Facts: 103

Reasons – Arbour J. 103

Durham Tees Valley Airport Ltd. v. bmibaby Ltd. [2010, Eng. CA] 103

Facts: ∆ agreed to fly two airplanes out of the airport for a 10-year term, but then stopped. 103

Issue: ∆ wants to take advantage of minimum performance rule – say they agreed to fly two airplanes but never specified how many times/day they would fly. Thus, argues damages are zero under the minimum performance rule  you assume the minimum possible. 103

TJ said this wasn’t even a K and declined to enforce it. 103

Held: CA did enforce the K, but rejected zero minimum. 103

Where parties have not specified, court says the K must still have meaning. 103

Since parties have not specified a range of possible performance, no room for operation of the minimum performance rule  it would be absurd to assume the  understood zero flights to be an option, because that is commercially ridiculous. 103

So, back to the old rule: what would the parties have actually done? 103

Reasonable amount of damages. 103

Ditmars v. Ross Drug Co. [1971, NBQB] 103

Facts: Wrongful dismissal action   won, received severance and also sought a bonus that he would have earned had he not been fired. 103

Issues/Arguments: Employer argued that K said maybe bonus, but did not obligate them to pay a bonus. 104

K specifies that it is discretionary, which implicitly assumes zero as a possibility. 104

Held: Court awarded  a bonus 104

Adds requirement of a bonus as a term of the K (says “virtual” but that word isn’t really necessary  it’s a straight up term of the K now) 104

Through practice and continual renewals, it’s not unrealistic to say that the K has been changed by the parties over time. 104

All other pharmacists in industry had been getting salary increases, but in this case they were just getting bonuses instead, to keep them up to industry practice. 104

So: courts can avoid the minimum performance principle, and then a judge can put in whatever figure he thinks is reasonable. 104

Lewis v. Lehigh Northwest Cement Ltd. [2009, BCCA] 104

Facts: wrongful dismissal.  claiming for anticipated annual increase in salary (had received ~3%/year for the previous five years). Argues implied term in K. 104

Held: Increased salary ≠ awarded. 104

Reasons: 104

Judge ≠ bound to find that  would have received a discretionary salary increase during the notice period. 104

had been on extended medical leave during which he had no job performance to assess and had made no contribution to ∆ financial performance. 104

Cost of Performance or Lost Market Value 104

Posner – Economic Analysis of Law 104

Efficiency 104

Sometimes it makes more sense to breach a K than to perform it. 104

Holmes’ view: the law simply requires a party to choose between performing the K and compensating the other party for any injury resulting from failure to perform. 104

A remedy that induces the wronged party to complete the K after the breach may be wasteful 104

Hence the doctrine of mitigation, and the preference for damages as a remedy over specific performance. 104

What if the cost to ∆ of making good the wrong exceeds the value to  of doing so? 104

Sometimes there is an incentive to breach  where the profit expected from breaching is greater than the profit expected from performance, even considering the losses of the other party that will be taken out in damages. 104

So, the law, and remedies, are structured to facilitate the efficient allocation of resources. 105

Efficiency is defined as arrangements of resources to their most highly valued use. 105

Value”: measured by parties’ willingness to pay 105

Trade”: maximizes welfare and efficiency  moves items to more highly valued uses as measured by a party’s willingness to pay. 105

Contract”: allows for complex trades 105

Economic Analysis and Damages 105

Expectation damages encourage the performance of Ks when they are efficient and discourage their performance when they are inefficient. 105

When is performance of a K inefficient? 105

(a) When cost to ∆ of performance exceeds the losses from non-performance 105

(b) When alternate opportunities to ∆ are more valuable than  loss 105

Efficiency explains the requirement of mitigation: reduction of joint costs of breach 105

Efficiency explains why courts should not award less than expectation damages. 105

E.g. reliance damages won’t give an incentive to carry our K even if it is efficient. 105

Efficiency explains why courts should not award more than expectation damages, and should generally avoid specific performance: 105

We don’t want to encourage the performance of inefficient Ks 105

BUT, efficiency also shows why specific performance is sometimes available: because it is the only way to measure the value of the K. 105

Where goods are fungible, SP won’t be available. 105

SP may be available if there is no functioning market in the goods, or if for some reason the market isn’t the right indicator of value 105

E.g. consumer surplus, sale of unique property 105

Note: even if the law gets it wrong on this, a post-judgment bargain may bring things back into balance. 105

Lost Value vs. Cost of Performance 105

Posner: Efficiency generally points toward “lost value” rather than “cost of performance” 105

Don’t encourage performance of Ks where cost exceeds benefit, and don’t penalize K-breaker for avoiding waste. 105

The Old Approach: Wigsell v. School for the Indigent Blind, as cited in Radford v. DeFroberville, and McGregor on Damages 105

Facts:  partitioned property and sold half to build a school; part of the deal was that buyer would build a fence between the partitions. School never built, no more need for fence, and it never got built. No evidence that ∆ land was worth any more with or without the fence, but the cost of building was several thousand pounds. 105

Held: court awarded lost value. 105

Note: Posner would say that building the fence was an inefficient use of the resources. 105

Megarry V-C in Tito v. Waddell, Four Propositions on Cost of Performance Awards: 106

[Cited in Radford v. DeFroberville] 106

1. The principle is to compensate  by putting him as much as possible in same pos’n as had he not suffered the wrong. It’s not about making the ∆ pay what he has saved, but about compensating the . 106

2. If  has suffered monetary loss, then that is obviously recoverable. If ∆ has saved $ by not doing what he K’d to do, that is irrelevant to the calculation of damages, as it was not a loss by the . 106

3. If  can establish that his loss includes the cost of doing work ∆ failed to do (in breach of K), then that sum is recoverable. Onus is on  to establish what his loss was. 106

4.  has a number of ways to establish that loss includes cost of work: 106

Work was done before action brought. 106

OR, work will/must be done. This Can be indicated through: 106

An action for specific performance, 106

Or by the fact that  is obligated to a 3rd party to complete the work, 106

Or perhaps by the existence of a statutory obligation; 106

Could also be indicated simply by  proving he wants/intends to complete the work. 106

Radford v. DeFroberville [1977] 106

Facts 106

sued for breach of K to erect a wall on ∆ property. 106

sold adjoining property to ∆ in consideration for an agreement to build a wall between them. But, ∆ never completed the wall. 106

Absence of physical barrier didn’t devalue the land; in fact, ∆ argued higher value than if wall were completed. 106

Held:  gets cost of performance. 106

Reasons: 106

The principle is to put  (as far as money can) in the same pos’n he would have been in had the K been fulfilled. 106

Note: this is not necessarily the same as putting  in as good a financial position. 106

Distinguishes Wigsell: in this case, there was convincing evidence that  did have a real interest in having a fence. 106

To assess whether a  wants to complete the work: 106

1. Does  have genuine/serious intention of doing the work? 106

2. Is carrying out the work reasonable for the  to do? 106

In this case: 106

1. Court found the requisite ‘fixity of intention’. Plus  gave undertaking anyway. Court accepted that  wanted to do work and found that the appropriate measure of damages was the cost of completion. 106

2. Reasonable to carry out work? 107

This is really a question of mitigation. ∆ argued prefab fence would be just as effective and less expensive. 107

But, court did not accept this argument: 107

Prefab fence ≠ permanent and  would have to maintain it 107

Prefab fence ≠ what the  asked for. 107

Although ∆ argued future owner might not want a fence there, so they could build another house in a corner of the lot, court said there was no indication of that, and in fact thought it might not be possible to get planning permission anyway. 107

A plaintiff may be willing to accept a less expensive method of performance, but I see nothing unreasonable in his wishing to adhere to the contract specification.” 107

Note: Court asked a third question: Does it matter that  is not personally living on the land but wants to do the work for benefit of his tenants? 107

Apparently not. 107

Cotter 107

Facts: mining companies, ∆ breached K to drill well,  seeks cost of drilling well 107

Held: In cases like this,  can only get proven economic loss suffered, not cost of performance. 107

The only loss proven was $1000 for not having well.  claimed $25k for cost to drill the well, but court said this would be oppressive. 107

Sunshine Exploration Ltd. v. Dolly Varden Mines Ltd. [1970, SCC] 107

Stands for: Cotter isn’t a hard rule; depends on the circumstances 107

Facts 107

Similar to Cotter. JV;  (DV) holds lease to mining territory in northern ON. ∆ takes half interest and commits to doing a bunch of work, but then only does part and abandons the project. 107

claims the cost of completing the work. 107

argues Cotter, you only get proven economic losses. 107

Held:  gets cost of completion. Cotter ≠ hard rule – it depends. 107

Reasons 107

The rule is expectation damages. What those amount to varies depending on the circumstances. 107

In this case, ∆ had done almost nothing under the K, and full consideration had passed from . 107

now owned half the property – took all the benefit from , and then didn’t do what they promised. Sense of unjust enrichment. 107

The decision looks to the true expectation: the loss was actually the information on whether or not to mine, and  didn’t get that, so they didn’t get the value sought from the K. 108

Groves v. John Wunder Co. [1939, Minn. SC] 108

Facts: ∆ K with  to remove fill; ∆ only took the good fill to its own advantage, leaving the land unusable and in worse condition than when it began. Cost of performance = $60k, max overall value of land = $12k. 108

Damages were awarded for cost of performance, even though that was grossly disproportionate to the value of the land. 108

Posner critiques Groves: 108

Real preference was to maintain land value, not have flat land. Thus, Posner says the decision is wrong. 108

Majority said if  wants a certain situation, court shouldn’t enforce the price of the land as a cap on that preference. BUT, these were commercial operators;  owned land for an investment, and it’s highly unlikely that the  would actually spend $60k to level the land if he knew it would only sell for $12k. 108

If  pockets the $60k then turns around and sells the property, the court hasn’t protected expectation  just conferred a massive windfall. But if  lives on the land and has personal/family connection etc., then maybe it can be argued that $12k isn’t the appropriate valuation. 108

SO...we examine the nature of  interest in the K: is it economic or personal? 108

In Groves, there was basically a windfall built into the K for one side or the other: 108

Even if the outcome was inefficient, ∆ shouldn’t be unjustly enriched by failing to perform, and should be punished for their egregious behaviour. 108

So, where a windfall must be given to one party, for moral reasons the judge decided it should be the  who benefited in this case. 108

Peevyhouse v. Garland Coal Mining Co. [1963, Oklahoma SC] 108

Facts 108

Farmers, lived on farm for generations. Leased land to coal mining company to strip-mine their land, with promise to restore farm. 108

But they didn’t restore. 108

Cost of restoration: $25k. Diminished value: $300. 108

Held: Court awarded diminished value. 108

Cost of performance uneconomic, would be windfall to . 108

Comments: 108

But in this case, the s were family people and probably had legitimate reasons for wanting the land restored. Plus, they built that requirement into the K. 108

So...maybe both Groves and Peevyhouse are wrong. 108

Probably the court and jury in Peevyhouse were bothered by the serious disparity between cost of performance and the value of the property  you could buy several farms for that price. 109

Ruxley Electronics and Construction Ltd. v. Forsyth [1996, HL] 109

Stands for: consumer surplus  court can consider the personal/subjective value over a straight market-value assessment 109

Facts 109

built pool for , but 6 inches shallower than K called for. 109

effect on value of pool, or utility (can still dive into it)  no functional difference. 109

Zero lost value in commercial terms. Fixing the problem means rebuilding the whole pool, at a cost of ~£30k. 109

Held: Award of £2000 for loss of amenity  higher than nothing, but less than full cost of performance 109

Reasons 109

Court believes  wanted a deeper pool, but won’t award the full cost of performance. 109

Doubtful that the award would actually be used to build a deeper pool, and thinks it’s unreasonable. 109

Policy concern: protect  interest w/o imposing undue liability on ∆ (who was pretty much innocent in this case.) 109

Court acknowledges loss of amenity  the personal satisfaction  would have had if pool were made to spec. 109

In most cases of this sort, neither alternative is really satisfactory  there’s always going to be a significant windfall or punishment if you choose absolutely between cost of performance and lost market value. SO...we don’t stop with market value. Can consider an individual’s personal valuation. 109

Consumer surplus  the amount by which a party values a transaction over and above the market price. 109

It’s usually hidden or irrelevant because a consumer can mitigate, thus making the loss measurable by market price (difference in what’s paid) 109

But, sometimes, the market won’t work. 109

E.g. no replacement available. 109

In these cases, court awards the value of lost amenity as an estimate of what the true loss to  is. 109

Wilson v. Sooter [1988, BCCA] 109

Facts: 109

K for wedding photos. 109

K price = $399, but we can assume wedding pictures have a much higher consumer surplus value. 109

Photographer showed up drunk, took terrible pictures, and s didn’t find out until the pictures were developed. 109

argued measure of damages should be the market value, $399  give them their money back. 110

s wanted the cost of redoing the whole wedding – $7000. 110

Held: s awarded ~$2000 110

Reasons 110

Court knew there was subjective value, but the cost of redoing the entire wedding and flying people back from Brazil etc. was just too high. 110

The goal: find an amount that compensates  without unduly penalizing ∆. 110

Courts want to enforce performance of Ks, when they are efficient, but not to penalize people for breaching a K when performance doesn’t make sense  idea of waste. 110

Miles v. Marshall [1975, ON] 110

Facts: damages for tenant failure to give land back in good repair. Some repairs ≠ necessary for enjoyment of property. 110

Held: Awarded diminution in market value 110

Reasons 110

Cited Joyner v. Weeks [1891]: two ways to measure cost of damages for repair 110

(1) cost of doing repair 110

(2) cost of diminution in market value 110

Court says that generally, the rule is #2: we look at diminution of market value. 110

Basically, the rule in Radford exists, but we’re going back to Wigsell. 110

Comment: this was decided after Sunshine, but that was an SCC case so maybe we should trust that. 110

Summary of Factors re Cost of Performance v. Lost Market Value 110

Starting Points 110

Expectation principle 110

Balance of interests 110

Enforcement of Ks 110

Avoidance of waste and inefficiency (Jacobs) 110

Factors 110

Assessment of ’s true interest 110

Nature of K  commercial or consumer [Ruxley] 110

Centrality of the obligation (e.g. building K or incidental provision) 110

Problem of “waste” [Jacobs; Ruxley] 110

Problem of unjust enrichment of ∆ vs. windfall to  [Groves, Peevyhouse] 110

Claim to specific performance? 110

Owner’s intent to do work 110

Reasonableness of work  size disparity b/w cost of performance and benefit achieved 110

Non-Pecuniary (Aggravated) Damages for Breach of K 111

Basics 111

A common claim in tort law/personal injury cases  it’s often reasonably foreseeable that if you injure someone they will suffer non-pecuniary harm. 111

In K law, the starting point is the exclusionary rule: non-pecuniary losses are presumptively not recoverable in breach of K (unless it’s also a tort/causes physical injury). 111

Addis v. Gramophone [1909, HL] 111

Facts:  was fired in a mean way 111

Held: damages for breach of K are limited to financial losses, absent ability to prove an independent actionable wrong 111

This set the general rule. 111

Vorvis v. ICBC [1989, SCC] 111

Facts:  fired summarily in breach of K, suffered mental distress 111

Held: SCC reaffirmed the rule: absent an independent tort or other cause of action, the mere breach of K does not attract non-pecuniary damages. 111

Policy Concerns 111

K law is generally assumed to be about trade/exchange  economic values. 111

Non-economic values and risks are not normally part of the trade. 111

There is an administrative/evidentiary concern as we move away from pecuniary losses, dealing w/ subjective harms that are difficult to prove and likely prone to overstatement/exaggeration. 111

Issue of causation: 111



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