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Incidental Damages

What Are Incidental Damages?

Incidental damages are expenses that a party incurs as a direct result of another party's breach of contract. These damages are meant to compensate for the costs that are reasonably associated with mitigating, addressing, or resulting from the breach.

Incidental Damages Explained

Incidental damages typically cover costs such as transportation, care, custody, and storage of goods, as well as expenses incurred in efforts to prevent further loss or in dealing with the breach. They are distinct from direct damages, which are the actual losses directly tied to the breach itself.

Key Characteristics of Incidental Damages:

Direct Result of Breach: Arise directly from the breach of contract.

Reasonable Expenses: Costs that are considered reasonable and necessary to address the breach.

Mitigation Efforts: Include costs associated with efforts to mitigate further damage or loss.

Supplementary Nature: Additional to direct damages, not a replacement.

Examples:

- Costs of shipping defective goods back to the seller.

- Expenses incurred in finding a replacement for a breached contract.

- Storage fees for goods delivered late or in breach of contract.

The Term Incidental Damages in Different Legal Contexts

United States: In U.S. contract law, incidental damages are recognized under the Uniform Commercial Code (UCC) for sales of goods. Section 2-715 of the UCC specifically provides for the recovery of incidental damages, which include expenses reasonably incurred in inspection, receipt, transportation, and care of goods rightfully rejected, as well as any commercially reasonable charges, expenses, or commissions in connection with effecting cover (i.e., obtaining substitute goods).

United Kingdom: In the UK, the concept of incidental damages is not explicitly termed as such but falls under the broader category of consequential losses. These are recoverable if they are reasonably foreseeable and directly attributable to the breach.

The principles set out in Hadley v Baxendale (1854) guide the recovery of such damages, where the loss must either naturally arise from the breach or be within the contemplation of both parties at the time of the contract.

Australia: Australian contract law also recognizes the recovery of incidental damages under the principles of compensatory damages. Similar to the UK, the damages must be reasonably foreseeable and directly resulting from the breach.

The Australian Consumer Law provides additional guidance on the recovery of such damages in the context of consumer transactions, ensuring that consumers can claim compensation for any loss or damage suffered as a result of the breach.

Common Misconceptions About the Meaning of Incidental Damages

A common misconception is that incidental damages are the same as consequential damages. While they are related, they are not identical. Incidental damages refer specifically to the costs incurred as a direct result of addressing the breach, such as transportation and storage.

Consequential damages, on the other hand, are indirect losses that result from the breach, such as lost profits or business opportunities.

Another misconception is that incidental damages are automatically granted upon proving a breach of contract. In reality, the claimant must demonstrate that the expenses were reasonable and directly related to the breach.

Courts will assess the necessity and reasonableness of the incurred costs before awarding incidental damages.

There is also a misconception that only businesses can claim incidental damages. In fact, any party to a contract, including individual consumers, can seek incidental damages if they incur reasonable expenses as a result of the other party's breach.

This ensures that both businesses and consumers are protected and can be compensated for additional costs arising from breaches of contract.

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Drew Davis Van De Grift

Contracts and Agreements Lawyer Serving at Birmingham - Michigan

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Thomas M. Cooley
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What Are Incidental Damages?

Incidental Damages Explained

The Term Incidental Damages in Different Legal Contexts

Common Misconceptions About the Meaning of Incidental Damages

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