Strictly speaking, are damages an essential element of breach of contract? Several resources, including one from an attorney in California and another from an attorney in Arizona state that harm or damages to the non-breaching party is an essential element of a breach of contract action. This is apparently confirmed in the Colorado case W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992). In other words, if there has been no harm, no breach has occurred. Taking this to its logical conclusion, it would mean that every single contract term in every single contract includes an implied clause limiting its application to instances where violating its requirements results in actual, legally cognizable damages. For example, a contract that provides, &quot;Alice promises to Bob that she will not do the Hokey Pokey.&quot; actually means &quot;Alice can do the Hokey Pokey all she wants as long as she doesn't thereby hurt Bob (e.g. causing an oil spill on his land, making his crops fail, making his debtors unable to pay him, driving away his customers, causing a personal injury, etc.).&quot;. For a more practical example, I recently signed a car rental contract in which I agreed not to take the car outside of a specified geographical area without permission. Applying this harm rule, a court would actually interpret the clause to mean that I may take the car outside of that geographical area as long as no harm to the other party occurs (e.g. a car wreck, weather damage that is greater than it would have been if the car had been kept within the specified area, etc.). I could theoretically tell them, &quot;Yes, I took the car to Oklahoma in violation of the letter of the contract, but I returned it without any more damage and wear and tear than it would have sustained had I kept it in Texas as I promised. Even if it did sustain damage as a direct result of my actions, there's no way you could prove that the damage was caused by my travel to Oklahoma or that it would necessarily not have occurred if I had stayed in Texas. No harm, no breach, get off my case!&quot;. This would also mean that harms that the law typically does not consider, such as emotional trauma not rising to the level of IIED, likely also do not result in a breach of contract even if the express terms of the contract forbid the behavior that inflicted the trauma. This seems untenable, as it would blur the distinction between contract and tort law and turn breach of contract into some sort of quasi-tort action. Common sense (which might not actually be worth that much) tells me that reducing every contract to &quot;don't hurt the other party to this contract&quot; isn't realistic and that a judge would look at me very strangely when I tell him that I gleefully turned around and did almost everything I promised not to do and almost nothing of what I promised to do but that at least nobody got hurt so please rule in my favor kthxbai. So, strictly speaking, is a legally cognizable injury an essential element in breach of contract under Common Law principles? To be clear, I'm not asking for help with any specific jurisdiction, but am asking about the history and theory of breach of contract under Common Law. Another way to phrase the same question is, is &quot;Nobody got hurt&quot; a complete defense to an action for breach of contract (i.e. it is not a breach at all and the court would rule in favor of the defendant), or is lack of harm only be a mitigating factor when deciding how much to award the plaintiff for the defendant's breach? Discussion I'm picturing this sort of scenario more with standard form contracts that forbid all sorts of apparently innocuous behavior than with short, bespoke contracts that get right to the heart of the matter. For example, I might read a standard form contract and think, &quot;There's no way they would know if I violated this clause or not. Even if they knew, there's no way they would actually be harmed. Even if they were harmed, there's no way they could prove it in court. Even if they could prove it, the harm would almost certainly be too remote, speculative, and/or de minimis to sustain an action. I can just ignore the actual words of this clause and just concern myself with not hurting anybody and be confident that I am not doing anything wrong.&quot; As it pertains to my rental car hypothetical, I might think, &quot;Ok, the contract clause says 'You agree not to take the car out of the state of Texas', but their real concern is stopping me from transferring the car to Guatemalan revolutionaries or disassembling it for parts to repair an Alaskan oil pipeline. A five-mile jaunt across the state line to visit my sister in Oklahoma doesn't give rise to the harm countenanced by the clause, so doing so does not constitute a breach.&quot; I have a very strong feeling that this is dangerous legal reasoning, but am having trouble figuring out exactly why.
Strictly speaking, are damages an element of breach of contract? There are inconsistent formulations of breach of contract. But that inconsistency is inconsequential. What matters is that damages --whether anticipated or actual-- are relevant for ascertaining the remedies for the breaching party's violation(s) of the terms. The wording in Restatement (Second) of Contracts at §355 implies that [punitive] damages are not breach of contract. Other sections reinforce that interpretation by referring to damages as the effect(s) of a breach, not an element of the breach itself. See §243. By contrast, some courts include damages in their formulation of prima facie elements of a breach. Examples are Sellers as Tr. of R&amp;LD Trust II v. Felton, 626 S.W.3d 121, 125 (2021) (mentioning &quot;resulting damages&quot; among the allegations that &quot;support the existence of [a] contract&quot;, brackets added), and CP3 BP Associates LLC v. CSL Plasma Inc., (Missouri CoA, Apr. 2022) (&quot;To establish a prima facie case of breach of lease, a plaintiff must establish [...] that plaintiff was thereby damaged by the breach&quot;). A defendant can be found in breach of contract. But the legal proceedings would be pointless unless the plaintiff sought declaratory relief or can prove damages. That being said, scenarios like the car rental example can entitle the non-breaching party to remedies even if the rented car is not involved in an incident. Primarily the non-breaching party might be entitled to void the contract, given this party's awareness of the counterparty's non-compliance with terms they willfully and knowingly entered. For instance, even in the absence of incidents, an insurer is entitled to rescind a policy if it realizes the insured indulges in recklessness or moral hazard. That is because the insured's conduct contravenes the basic assumption of insured's risk aversion as well as the agreed allocation of risks on which an insurance policy is premised. See Restatement at §§151, 153, and 154(a). In some contexts, the non-breaching party might also be entitled to a reasonable award if the formation of that contract is traceable to opportunity costs or, for instance, if voiding the contract [due to the counterparty's breach] causes the non-breaching party administrative expenses.
The contract is almost certainly not valid. The answer you linked references the 2001 Federal Circuit case Fomby-Denson v. Dept of the Army. The court, in its opinion, quoted from the 1948 Supreme Court case Hurd v. Hodge: [t]he power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States . . . . Where the enforcement of private agreements would be violative of that policy, it is the obligation of courts to refrain from such exertions of judicial power. It is clear that, in the case you propose, the enforcement of such a contract would go against the public interest. Quoting from the 1972 Supreme Court case Branzburg v. Hayes, the Fomby-Denson decision said: it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy. It further notes this clause from the First Restatement of Contracts: [a] bargain in which either a promised performance or the consideration for a promise is concealing or compounding a crime or alleged crime is illegal.
In general, "a signed piece of paper" is not "a contract". It may be a record of a contract, but the contract itself is the meeting of minds where an agreement is reached and doesn't depend on the existence of the piece of paper. (Depending on the jurisdiction, some sorts of contract are required to be in writing, but this doesn't usually apply to employment contracts; it's usually contracts involving land.) What is far more worrying to me is that you don't know how much they are going to pay you. That suggests there hasn't been a meeting of minds, and there is no contract. (It might be that "the going rate" is good enough to form a contract - to determine that would require advice from a local lawyer.) I suggest you don't write up a formal agreement, but nag your boss to decide how much they are actually going to pay you.
Misrepresentation At common law, if you are induced to enter a contract by a material misrepresentation then you can rescind the contract and/or sue for damages. The person concerned would have to prove on the balance of probabilities that: the misrepresentation was actually made, which, if it was only verbal and there were no independent witnesses will be problematic, the misrepresentation caused them to enter the contract. If the dealer were to deny everything, and it came down to a &quot;he said, she said&quot;, then, on the evidence, the person should lose. The facts are equally consistent with the buyer making an unprompted mistake as to the model of the car. Unfortunately, while most cases are compelling when you only have one side's story; when both sides get to have their say the facts become less easy to determine. Outside of misrepresentation, the person can complain to whatever government consumer protection agencies there are in Florida.
Yes. Therefore, when assessing a claim, it would be incorrect or premature to conclude simply from lack of actual harm/damage that a wronged party would have no available remedy. In order to make this conclusion, one would have to examine the statutory scheme or the nature of the tort to determine whether the claim is actionable without proof of damage. Many statutory causes of action are actionable without having to prove loss or harm. Canada's Copyright Act, s. 38.1 allows a plaintiff to opt for statutory damages Texas's SB-8 creates a cause of action that allows the claimant to recover statutory damages absent any proof of harm to the claimant The Telephone Consumer Protection Act of 1991, 47 USC § 227 provides for statutory damages in the amount of $500 In British Columbia, &quot;it is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose&quot; (Privacy Act, RSBC 1996, c 373) The common law and equity also recognize various wrongs and remedies without proof of damage The tort of trepass is actionable without proof of damage (Peter Ballantyne Cree Nation v Canada (Attorney General), 2016 SKCA 124, at para 130). The tort of battery is actionable without proof of damage (Norberg v. Wynrib, [1992] 2 S.C.R. 226). The equitable remedy of disgorgement may also be available without proof of damage (for example, after a breach of fiduciary duty) (Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at para 32).
Neither The contract is completed when each party has totally fulfilled its obligations under the contract. In this case, it is when the purchaser has consumed or otherwise dealt with the banana to their satisfaction. The vendor has ongoing obligations under the contract until this happens. For example, obligations that the banana is of merchantable quality and fit for purpose. If the purchaser peels the banana and discovers that it is "off" or eats the banana and develops food poisoning then the vendor still has obligations and can be sued under the contract. Yes, I realize that no one is going to sue anyone over a rotten banana but let's assume that "banana" is code for 54km of motorway construction and £1 is actually £1 billion. When is the contract formed? This is not a trivial determination and there are literally hundreds of thousands if not millions of lawsuits that have turned on this exact question. Once the contract is formed its binding on both parties; until then, either can walk away (subject to estoppel) The traditional analysis involves offer and acceptance. In your banana scenario, the shop displaying "Banana's: 50p/each" (it's a fruit shop - they always have unnecessary apostrophes) is not an offer - it is an invitation to treat. An offer is made by Ben placing the banana on the counter and proffering the £1, it is accepted by Sam taking the £1. At this point, the sale is binding on both parties. Ben has fulfilled all his obligations under the contract, Sam still has some. In addition to those discussed above, he owes Ben 50p. Strictly speaking, this is not an obligation under the contract but a debt due and payable. Consumer protection law The proceeding is a strict contract law interpretation - many jurisdictions have consumer protection legislation (and food safety laws for bananas) that impose additional protections and may change the contract law position.
What's the use of contracts if you can't take a contract violator to court? A clear, thoughtful contract can be a deterrent to misconduct, and Australia is one of many jurisdictions where pro se litigation is allowed. Self-represented litigants certainly have to undergo a steep learning curve and are expected to comply with a code of conduct, procedural law, and so forth, but my point is that hiring a lawyer is not compulsory. Even if for some reason the defrauded party declines to sue the tortfeasor (thereby forfeiting the recovery of the losses), there is a societal obligation to alert others about the tortfeasor's misconduct. Making the contract available to others facilitates alerting them on objective grounds so they don't become the tortfeasor's next victim, and it simultaneously helps for setting the record straight that the damages/losses were not one's own fault. Without a contract, it would be more difficult for others get a sense of whether misconduct occurred at all. Or worst, halfway down the line, you don't have any money left to pay your lawyers, and they leave the case. Hence the importance to litigate in pro per from the start. It is easy for a person retaining a lawyer to postpone (be it due to family obligations, workload, and so forth) his learning of the law. But that postponement only makes the client more vulnerable to his lawyer's subsequent withdrawal when court proceedings are midway: the client would have the dilemma of either finding another lawyer to resume the case --predictably at a higher cost--, or cram the learning curve in trying to keep up with the proceedings.
If the agreement is the result of a binding determinative process like the decision of a court, arbitrator or administrative tribunal, the aggrieved party can go to the court for enforcement. If it isn’t, then the agreement may be enforceable as a contract (see What is a contract and what is required for them to be valid?). Breach of the contract allows the aggrieved party all the normal remedies. In either case, breach by one party does not excuse breach by the other. Of course, the agreement can be worded “you do this then I do that” so if you don’t do this, you are in breach but I’m not. If it isn’t either of the above, it can’t be enforced.