Iv.—: Measure of Damages and other Incidents of the Remedy.

Measure of damages, &c. With regard to the measure of damages, the same principles are to a great extent applicable to cases of contract and of tort, and even rules which are generally peculiar to one branch of the law may be applied to the other in exceptional classes of cases.

The liability of a wrong-doer for his act is determined, as we have seen, by the extent to which the harm suffered by the plaintiff was a natural and probable consequence of the act. This appears to be also the true measure of liability for breach of contract; “the rule with regard to remoteness of damage is precisely the same whether the damages are claimed in actions of contract or of tort”; the judgment of what is natural and probable being taken as it would have been formed by a reasonable man in the defendant’s place at the date of the wrongful act, or the conclusion of the contract, as the case may be. No doubt there have been in the law of contract quite recent opinions of considerable authority casting doubt on the rule of Hadley v. Baxendale, and tending to show that a contracting party can be held answerable for special consequences of a breach of his contract only if there has been something amounting to an undertaking on his part to bear such consequences; on this view even express notice of the probable consequences—if they be not in themselves of a common and obvious kind, such as the plaintiff’s loss of a difference between the contract and the market price of marketable goods which the defendant fails to deliver—would not of itself suffice.

Rule as to consequential damage: how far alike in contract and tort. But the Court of Appeal has more lately disapproved this view, pointing out that a contracting party’s liability to pay damages for a breach is not created by his agreement to be liable, but is imposed by law. “A person contemplates the performance and not the breach of his contract; he does not enter into a kind of second contract to pay damages, but he is liable to make good those injuries which he is aware that his default may occasion to the contractee”.

The general principle, therefore, is still the same in contract as in tort, whatever difficulty may be found in working it out in a wholly satisfactory manner in relation to the various combinations of fact occurring in practice.

One point may be suggested as needful to be borne in mind to give a consistent doctrine. Strictly speaking, it is not notice of apprehended consequences that is material, but notice of the existing facts by reason whereof those consequences will naturally and probably ensue upon a breach of the contract.

Vindictive character of action for breach of promise of marriage. Exemplary or vindictive damages, as a rule, cannot be recovered in an action on a contract, and it makes no difference that the breach of contract is a misfeasance capable of being treated as a wrong. Actions for breach of promise of marriage are an exception, perhaps in law, certainly in fact: it is impossible to analyse the estimate formed by a jury in such a case, or to prevent them from giving, if so minded, damages which in truth are, and are intended to be, exemplary. Strictly the damages are by way of compensation, but they are “almost always considered by the jury somewhat in poenam”. Like results might conceivably follow in the case of other breaches of contract accompanied with circumstances of wanton injury or contumely.

Contracts on which executors cannot sue. In another respect breach of promise of marriage is like a tort: executors cannot sue for it without proof of special damage to their testator’s personal estate; nor does the action lie against executors without special damage. “Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate. But in that case the special damage ought to be stated on the record; otherwise the Court cannot intend it”. The same rule appears to hold as concerning injuries to the person caused by unskilful medical treatment, negligence of carriers of passengers or their servants, and the like, although the duty to be performed was under a contract. Positive authority, however, has not been found on the extent of this analogy. The language used by the Court of King’s Bench is at any rate not convincing, for although certainly a wrong is not property, the right to recover damages for a wrong is a chose in action; neither can the distinction between liquidated and unliquidated damages afford a test, for that would exclude causes of action on which executors have always been able to sue. We have considered in an earlier chapter the exceptional converse cases in which by statute or otherwise a cause of action for a tort which a person might have sued on in his lifetime survives to his personal representatives.

Where there was one cause of action with an option to sue in tort or in contract, the incidents of the remedy generally were determined once for all, under the old common law practice, by the plaintiff’s election of his form of action. But this has long ceased to be of practical importance in England, and, it is believed, in most jurisdictions.