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Substitutive Damages and Mitigation in Contract Law – Tension between Two Competing Norms

Katy Barnett

(2016) 28 SAcLJ 795

While one aim of contract damages is to seek a substitute for performance for the plaintiff, mitigation attempts to effect a just allocation of burdens and benefits between plaintiff and defendant. First, plaintiffs cannot recover avoidable loss, which reflects the court’s desire to encourage self-help, among other things. Second, courts take into account avoided loss, which involves a simple mathematical quid pro quo, but it is suggested that courts should be cognisant of the distributive ramifications when mitigation has not in fact taken place or the plaintiff is not subject to claims by third parties.