The measure of compensatory damages for breach of contract is such damages as will place the non-breaching party in the same position he or she would have been if the contract had been performed.93 Recoverable damages are those that might have been foreseen or anticipated as being likely to arise from the breach itself, these consequences being considered to be the natural or probable consequences of the breach.94 This includes damages for personal injury if it was within the contemplation of the parties that such injury could occur as a result of the breach.95 However, the general rule is that in an action based upon contract, unaccompanied by a related affirmative tortuous physical act and unaccompanied by physical injury, mental suffering is not an element to be considered in awarding compensatory damages.95.1
In sales contracts, if a seller fails to deliver or otherwise repudiates the contract, the buyer is entitled to recover the difference between the contract price and the market price (determined as of the place and time of performing) when the buyer learned of the breach.96 Conversely, if a buyer breaches a contract, the seller is entitled to recover the difference between the contract price and the market value at the time and place of the breach, i.e., the seller’s profit.97 If the seller actually resells the goods, the seller may recover the difference between the contract price and the actual resale price, plus any incidental damages incurred in connection with the resale.98
When a breach of a service contract prevents the plaintiff from doing the work, the lost profit is the measure of damages.99 For breach of a contract for goods to be manufactured, the vendor’s measure of damages is the difference between the contract price and the cost of manufacture plus delivery.100
When there is a breach of contract involving improvements to real property, the basic measure of damages is the amount required to remedy the defect by replacement or repair, unless the amount is disproportionate to the probable loss in value or it constitutes economic waste. If the remedy is disproportionate to the probable loss in value or if it constitutes economic waste, then the proper measure of damages may be diminution in value. In other words, when there is a tremendous disparity between restoration cost and the diminished value of the property, diminution in value may be an appropriate measure of damages.100.1
The measure of damages for repudiation of a lease depends on the landlord’s ability to relet the premises. When a tenant repudiates a lease and the lessor is able to relet the premises, the measure of damages is the difference between the agreed rent and the rent specified in the new lease. If the lessor is unable to relet the premises, the measure of damages is the total rent accrued.101
The measure of damages for breach of the covenant of quiet enjoyment is the natural and direct consequences of the breach, usually an amount representing the difference between the actual value of the unexpired term and the rent reserved.102 The measure of compensatory damages for breach of a warranty of quality or fitness is the difference between the actual value of the goods bought and the value if the goods had been as warranted.103
When a defendant breaches a contract to pay money, the jury may award interest in addition to the money owed as a form of damages for unjust detention of the debt.104
In an action for a constructive or quasi-contract, the measure of damages is the reasonable value of the services rendered by the plaintiff.105
In an action for breach of contract unaccompanied by an affirmative tortious act and physical injury, mental suffering is not an element to be considered in awarding compensatory damages.106
In the case of a quasi-contract, a plaintiff may be able to recover the reasonable value of the materials or services rendered to a defendant on a quantum meruit theory. The standard for measuring the value of the performance under quantum meruit is the amount for which such services could have been purchased from one in the plaintiff’s position at the time and place the services were rendered. Quantum meruit is to be established by way of opinion testimony by expert witnesses in the same field of endeavor as the plaintiff. 106.1
93. Reserves Development LLC v. Crystal Properties, LLC, 986 A.2d 362, 367 (Del. 2009); Paul v. Deloitte & Touche LLP, 974 A.2d 140, 146 (Del. 2009); American Gen. Corp. v. Continental Airlines Corp., 622 A.2d 1, 8 (Del. Ch. 1992), aff’d mem., 620 A.2d 856 (Del. 1993); J. J. White, Inc. v. Metropolitan Merchandise Mart, Inc., 107 A.2d 892, 894 (Del. Super. 1954); Delaware Limousine Services, Inc. v. Royal Limousine Service, Inc., C.A. No. 87C-FE-l04, slip op. at 7-8, Goldstein, J. (Del. Super. Apr. 5, 1991), reh’g denied, C.A. No. 87C-FE-104, Goldstein, J. (Del. Super. May 2, 1991). See also Farny v. Bestfield Builders, Inc., 391 A.2d 212, 214 (Del. Super. 1978).
94. Tackett v. State Farm Fire and Casualty Insurance Co., 653 A.2d 254, 265 (Del. 1995); McClain v. Faraone, 369 A.2d 1090, 1092 (Del. Super. 1977); Clemens v. Western Union Tel. Co., 28 A.2d 889, 890 (Del. Super. 1942); Hajoca Corp. v. Security Trust Co., 25 A.2d 378, 381-82 (Del. Super. 1942).
95. McLachlan v. Wilmington Dry Goods Co., 22 A.2d 851, 854 (Del. Super. 1941).
95.1. McClain v. Faraone, 369 A.2d 1090, 1094 (Del. Super. 1977).
96. 6 Del. C. § 2-713. This statutory measure of damages is consistent with prior common law. See Lynam v. Harvey, 108 A. 850, 853 (Del. Ch. 1919); Monad Engineering Co. v. Stewart, 78 A. 598, 601 (Del. Super. 1910), aff’d sub nom. Stewart & Donahoe v. Monad Eng’g Co., 74 A. 208 (Del. 1912); Pancoast v. Vail, 65 A. 512, 513 (Del. Super. 1906); Hartnett v. Baker, 56 A. 672, 674 (Del. Super. 1903); Gruell v. Clark, 54 A. 955, 956 (Del. Super. 1903); Love v. Barnesville Mfg. Co., 50 A. 536, 537 (Del. Super. 1901); Rogers v. Fenimore, 41 A. 886, 889 (Del. Super. 1898); Wright v. Polk, 1 Del. 323, 1 Harr. 323, 324 (Del. Super. 1834). See also Dave Hall, Inc. v. Huljones Constr. Co., C.A. No. 5076, slip op. at 4, Longobardi, J. (Del. Super. Mar. 18, 1976).
97. 6 Del. C. § 2-708. This statutory measure of damages is consistent with prior common law. See G.W. Baker Mach. Co. v. United States Fire Apparatus Co., 97 A, 613, 616 (Del. 1916); Joseph Greenspon’s Sons Iron & Steel Co. v. Pecos Valley Gas Co., 156 A. 350, 354 (Del. Super. 1931); Terry v. American Fruit Growers, Inc., 139 A. 259, 266 (Del. Super. 1927); Stuckert v. Cann, 111 A. 596, 597 (Del. Super. 1920); Weishut v. Layton & Layton, Inc., 93 A. 1057, 1061 (Del. Super. 1915); Barr v. Logan, 5 Del. 52, 5 Harr. 52, 55 (Del. Super. 1848).
98. Terry v. American Fruit Growers, Inc., 139 A. 259, 266 (Del. Super. 1927); Weishut v. Layton & Layton, Inc., 93 A. 1057, 1061 (Del. Super. 1915); Barr v. Logan, 5 Del. Rpts. 52, 5 Harr. 52, 55 (Del. Super. 1848).
99. Truitt v. Fahey, 52 A. 339, 340 (1902); Taylor v. Trustees of Poor, 43 A. 613, 614 (1899); Meyer Ventures, Inc. v. Barnak, C.A. No. 11502, slip op. at 11-12, Allen, C. (Del. Ch. Nov. 2, 1990).
100. Quaker Metal Co. v. Standard Tank Car Co., 123 A. 131, 134 (Del. Super. 1923).
100.1. Leary v. Oswald, C.A. No. 06C-02-030-WLW, slip op. at 4, Witham, J. (Del. Super. Oct. 25, 2006).
101. Curran v. Smith-Zollinger Co., 157 A. 432 (Del. Ch. 1931).
102. Colt Lanes of Dover, Inc. v. Brunswick Corp., 281 A.2d 596, 599 (Del. 1971).
103. McLachlan v. Wilmington Dry Goods Co., 22 A.2d 851, 853-54 (Del. Super. 1941); Collins v. Tigner, 60 A. 978, 980 (Del. Super. 1905); Burton v. Young, 5 Del. 233, 5 Harr. 233, 234 (Del. Super. 1849). As to contracts for the sale of goods, the common-law measure of damages is codified as 6 Del.C. § 2714. See Neilson Business Equipment Center, Inc. v. Italo v. Monteleone, M.D., P.A., 524 A.2d 1172, 1176 (Del. 1987).
104. Jacobs v. Murray, 113 A. 803 (Del. Super. 1921). For a discussion of interest on a judgment, see § 28:10.
105. Marta v. Nepa, 385 A.2d 727, 730 (Del. 1978).
106. E.I. du Pont de Nemours and Co. v. Pressman, 679 A.2d 436, 444-45 (Del. 1996); McClain v. Faraone, 369 A.2d 1090, 1094 (Del. Super. 1977); Emmi v. Exxon Corp., C.A. No. 81C-SE-1 16, slip op. at 14, Stiftel, J. (Del. Super. Mar. 12, 1984).
106.1. Hynansky v. 1492 Hospitality Group, Inc., C.A. No. 06C-03-200-JEB, slip op. at 3, Babiarz, J. (Del. Super. Aug. 15, 2007).
© 2010 David L. Finger