Recovery for Avoided Loss: Towards a New Account of Mitigation

39 Pages Posted: 10 Oct 2012

See all articles by Andrew D. Dyson

Andrew D. Dyson

University of Oxford - Faculty of Law

Date Written: July 19, 2012

Abstract

‘Avoided loss’ means the loss that the claimant would have been expected to suffer in the ordinary course of events but which he does not in fact suffer. The leading texts assert that ‘claimants cannot recover for avoided loss,’ or that they can do so only in exceptional circumstances. This paper challenges that orthodoxy. It contends that in the context of mitigation claimants frequently recover damages for avoided loss. A new interpretative account of mitigation is required: damages are assessed as if the claimant had acted reasonably, even where the claimant’s conduct in fact departed from that expectation (for better or worse).

Keywords: Damages, mitigation, avoided loss, date of assessment, remedies

Suggested Citation

Dyson, Andrew D., Recovery for Avoided Loss: Towards a New Account of Mitigation (July 19, 2012). Oxford Student Legal Studies Paper No. 07/2012, Available at SSRN: https://ssrn.com/abstract=2158730 or http://dx.doi.org/10.2139/ssrn.2158730

Andrew D. Dyson (Contact Author)

University of Oxford - Faculty of Law ( email )

Corpus Christi College
Merton Street
Oxford, OX1 4JF
United Kingdom
447745033291 (Phone)
7745033291 (Fax)

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