Consequential Loss Clause

When a contract is breached, the recognized remedy for an owner is recovery of damages that result directly from the breach (also known as “compensatory damages”). Damages may include the cost to repair or complete the work in accordance with the contract documents, or the value of lost or damaged work. In addition to the compensatory damage, an owner can also seek for consequential damages (sometimes referred to as “indirect” or “special” damages), which include loss of product and loss of profit or revenue.

Therefore, entrepreneurs must think of all the possible ways their business could be exposed to such threats. It is an indirect loss that cannot be compensated even when the damaged unit is covered under the insurance. Every other year since 2005 the ABA has released its Private Target Mergers and Acquisitions Deal Point Studies. The ABA studies examine purchase agreements of publicly available transactions involving private companies. These transactions range in size but are generally considered as within the “middle market” for M&A transactions; the median transaction value within the 2019 study was $145 million.

These damages result in additional expenses that are incurred by the nonbreaching party, as a result of the breach of contract. Listing down will help entrepreneurs in taking the relevant business interruption insurance. The insurance companies assign consequential loss insurance to cover losses arising from turnover reduction, fire, spoilage, retrenchment and layoffs. There was no definition of indirect or consequential loss in the contract as there was in Transocean that would suggest a wider meaning than the second limb of Hadley v Baxendale. The first limb relates to direct losses – “losses arising in the ordinary course of things” those claimable losses which arise naturally as a result of the breach. Notwithstanding anything herein to the contrary, Client shall have no liability whatsoever for consequential, indirect, delay, special, incidental or liquidated damages whether arising in contract, tort, indemnity, warranty, strict liability or otherwise. Unlike tort law, which compensates a victim for a wrongdoer’s conduct, damages in contract law only consider whether a party performed or breached the contract.

Consequential Loss

With more than 200 lawyers and professionals, the firm provides regional, full-service capabilities with international strengths. Without limiting the generality of the foregoing, the decision of B&D shall be final and B&D accepts no liability or responsibility for any loss , howsoever arising, incurred by the Buyer due to the operation of this condition. As we have explained above, since a business is out of operations due to a loss to its machinery, it cannot earn a daily income. If you are a lawyer or work in a legal capacity, please register for a free trial to see if Practical Law’s resources are right for your business. The Practical Law team and our guest bloggers share their experience and opinions relating to construction and engineering law and projects. Notwithstanding this, a combination of developments in the general principles of contractual interpretation, together with the courts taking a more flexible approach indicate that courts may now be moving away from the traditional approach. GoodwillIn accounting, goodwill is an intangible asset that is generated when one company purchases another company for a price that is greater than the sum of the company’s net identifiable assets at the time of acquisition.

These and other factors can help you evaluate how much consequential or liquidated damages risk to take, if any. As noted at the beginning, many contractors and subcontractors enter into contracts every day without even knowing the risks they face with respect to such damages. While many contracts may include a clause regarding consequential losses, the clauses do need to be within reason as to what the breaching party may be responsible for, in terms of providing compensation. For example, just because the painter whom you may have hired to repaint your office doesn’t complete the job, it does not necessarily negatively impact your ability to operate your business. Therefore, the painter cannot be reasonably expected to provide you compensation for consequential losses. Even if the business possesses a consequential losses insurance, the insurance company may put in some exclusions under the policy. Such exclusions cause the business to endure the indirect losses even when it is insured against it.

In Star Polaris, the shipbuilder had expressly agreed to repair or pay for physical damage and some identified consequent expenses. It was common ground that the liability provisions of the contract provided a complete code for damages. The court held that, by excluding liability for “consequential or special losses, damages or expenses”, the parties intended to exclude all financial losses, consequent on physical damage, that had not expressly been accepted. The TCC’s recent decision in 2 Entertain Video Ltd v Sony DADC Europe Ltd suggests judicial appetite for a change to the traditional and narrow interpretation of indirect and consequential loss exclusion clauses. Although the court’s decision accorded with the traditional interpretation, O’Farrell J considered that indirect and consequential loss exclusion clauses should be given their natural and ordinary interpretation while considering the contract as a whole and any relevant factual matrix. In Star Polaris, the vessel built by the defendant shipyard suffered a serious engine failure.

This may be recovered if it is determined such damages were reasonably foreseeable or “within the contemplation of the parties” at the time of contract formation. This is a factual determination that could lead to the contractor’s liability for an enormous loss. For example, the cost to complete unfinished work on time may pale in comparison to the loss of operating revenue an owner might claim as a result of late completion. In order to seek consequential damages, a party who has suffered physical injury, property damage, or financial loss needs to perform a duty to mitigate damages, which means that the they have an obligation to reduce or minimize the effect and any losses resulting from the injury. The judge confirmed that although exclusion clauses are no longer read narrowly, the words must be given their ordinary meaning. The phrase “consequential or special losses, damages or expenses” did not mean those losses coming within the second limb . Rather the clause had a wider meaning of financial losses caused by guaranteed defects above and beyond the replacement and repair of physical damage.

The consequential loss insurance covers indirect damages and is called a business interruption insurance. The consequential loss insurance covers indirect damages and is called business interruption insurance. As an example of a consequential loss, a manufacturing firm is completely shut down by a devastating flood. The company’s property insurance will reimburse it for damage to the facility and equipment; however, the consequential losses stemming from being out of operation during the recovery period will not be covered by the property insurance.

Terms Similar To Consequential Loss

In the event of a breach of contract, you will want to ensure that you will be covered for any consequential losses that your business may endure. Generally speaking, for you to be awarded any damages for consequential loss, without such a clause in the contract or the ownership of such an insurance policy, the losses must be reasonably seen as the result of the breach of contract. Otherwise, you may not be able to receive compensation for any consequential losses that you suffer as a result of that breach of contract.

• Another modification would be to carve out from the waiver third party claims for indemnity or contribution.
• Sellers, understandably, seek to limit the scope of the losses to which they provide indemnification.
• Generally speaking, for you to be awarded any damages for consequential loss, without such a clause in the contract or the ownership of such an insurance policy, the losses must be reasonably seen as the result of the breach of contract.
• Thus, Baxendale came to stand for the proposition that “consequential damages” are recoverable where a contract is breached by a party that knows – or is imputed to know – that ordinary expectancy, reliance, or restitution damages will not suffice to meet damages caused by the breach.

Well drafted exclusion clauses are important in any contract, but we often see issues relating to these clauses in disputes arising from IT contracts. If an IT project fails, there is inevitably a dispute between the customer and supplier as to the nature of losses recoverable under the contract. These are likely to include both direct losses (e.g. the loss of the failed software system itself) and indirect losses (e.g. caused by business disruption although loss of profits can be both direct and indirect loss depending on the circumstances). During negotiations, sellers often assert that they should not be responsible for “speculative” damages or damages which are not otherwise foreseeable. This common argument is likely misplaced insofar as it relates to consequential damage exclusions, since, as noted below, consequential damages do not normally include those which are not reasonably foreseeable in the first instance. By contrast, the buyer typically argues that it should not be required to waive and exclude damages that it would otherwise, absent such waiver and exclusion, be able to assert against a seller in a normal breach of contract claim. This argument has limitations, however, because buyers often do agree to waive and exclude some types of damages—most notably, special, incidental, or punitive damages.

Understanding Consequential Loss With Examples

For example, a 10% consequential damage liability cap on a $30 million contract would be $3 million. On a cost-plus project the cap might be based on the contractor’s fee or some multiple of that fee. The idea in setting a cap is basically to limit the liability to the contractor’s fee or profit as opposed to the contractor having to come out of pocket to fund liability for consequential damages.

The relevant clause was intended to operate as a complete code under which all liability for losses over and above those specifically accepted by the defendant shipbuilder were excluded. It is also worth noting that business insurance, in addition to covering instances of physical damage that affects operations, can also offer protection for the company in the event of a breach of contract by a third party, such as a vendor or contractor, which then results in a loss of income.

More Definitions Of Consequential Loss

Instead, the company’s risk manager must acquire insurance that specifically provides coverage for these losses, which include payments for employee compensation, as well as fixed operational expenses. Insurance that provides coverage for consequential losses may provide more broad-ranging coverage than simply losses stemming from damaged fixed assets. The coverage might also extend into losses from the loss of utilities, from supply chain disruptions, and similar factors. The insurance policy designed to deal with consequential losses is called business interruption insurance. The judge held that losses that began to “clock up at once” were to be regarded as direct and not consequential loss. The loss was considered a direct and natural consequence of the breach and was recoverable notwithstanding an exclusion clause precluding recovery of consequential loss. Therefore, commercial parties should be wary when drafting their exclusion of loss clauses.

Sellers, understandably, seek to limit the scope of the losses to which they provide indemnification. Consequential damages, along with special, incidental, and punitive damages, are often the focus of negotiations regarding the scope of damages. Understanding the different types of damages or losses that exist can help you ensure that all eventualities are being met both in your contracts and in your insurance policies.

Often times, in commercial real estate, one party may insist that the contract has a consequential loss exclusion clause. In the situation, the other party will want to determine if there are certain exceptions that should be made regarding that clause. It also not uncommon for those types of exclusion clauses to exist within construction contracts. After all, a contractor may not want to be, “on the hook” for new apartment building not being able to open, thus resulting in loss of income for the landlord, because of inclement weather hindering the contractor’s ability to complete the job on time.

Insurance Policy For Consequential Loss

Careful drafting at this stage can substantially diminish the risk of disputes on exclusion clauses if an IT project goes wrong. This case serves as further guidance on the courts’ approach to interpreting the phrase “consequential losses” in an exclusion clause and develops the debate around whether the term should be given its traditional legal definition or interpreted using the ‘natural language’ definition. It is a helpful reminder of the need to draft such clauses carefully in a clear and unambiguous way which accurately reflects the intentions of the parties as to which types of losses are excluded. In M&A transactions, the definitive purchase agreement, whether asset purchase agreement, stock purchase agreement, or merger agreement, typically contains representations and warranties and related indemnification covenants. Buyers and sellers often negotiate the scope and types of damages subject to indemnification under the purchase agreement, including whether consequential damages that the buyer may suffer as a result of the seller’s breach should be included in, or excluded from, the seller’s indemnification obligations. This article examines consequential damage exclusion trends in private company M&A transactions.

• In the situation, the other party will want to determine if there are certain exceptions that should be made regarding that clause.
• The court looked first at the ordinary and natural meaning of the “unhappily drafted” provision.
• Every other year since 2005 the ABA has released its Private Target Mergers and Acquisitions Deal Point Studies.
• Financial losses, including loss of profit, which one would normally expect to flow from the breach, are likely to be classified as direct loss.
• Without limiting the generality of the foregoing, the decision of B&D shall be final and B&D accepts no liability or responsibility for any loss , howsoever arising, incurred by the Buyer due to the operation of this condition.

The courts have, in the past, construed the phrase “consequential losses” narrowly, using the traditional interpretation set out in Hadley v Baxendale, often in an attempt to achieve what was perceived as a fair outcome. Now, the trend, reflected in the Star Polaris decision, is for the courts to give the words used their natural and ordinary meaning. This is particularly true for commercial contracts negotiated between sophisticated parties. Once again the interpretation of exclusion clauses limiting liability for “consequential losses” has come before the courts.

The courts continue to look at the meaning of “consequential loss” in limitation of liability clauses and at whether the traditional legal meaning or the ordinary language meaning should apply. Consequential Lossmeans any loss of production, loss of revenue, loss of profit, loss of business reputation, business interruptions, loss of opportunities, loss of anticipated savings or wasted overheads. A consequential loss is a loss sustained by a business when it is unable to use its assets in the intended manner.

Consequential Lossesmeans any consequential, incidental, punitive, special, exemplary or indirect damages or costs, special and punitive damages, deferred or lost profits or revenues, loss of business opportunity, losses based on loss of use or other business interruption losses and damages. The provenance of the legal theory underlying “consequential damages” is widely attributed to the 19th century English case of Hadley v. Baxendale, in which a miller contracted for the purchase of a crankshaft for a steam engine at the mill. The party agreeing to produce the part (which was critical to the mill’s operation and/or output) agreed to deliver the part for inspection as to fit by a certain date in order to avoid contractual and other business loss/liability. When the part was not delivered for inspection on time, the miller sued to recover not only the direct costs that were incident to the alleged breach, but also to recover the costs/losses that were entailed with the production shutdown resulting from the failure to timely deliver the crankshaft.

High Court Considers Meaning Of “defect” Under The Consumer Protection Act 1987

Generally stated, absent specific language in the contract to the contrary, a party’s specific reasons or motivations underlying its breach do not impact recoverable contract damages. Also referred to as, “special damages”, these are neither direct or incidental damages, and include any damages that are addressed in the breach of contract. Gross ProfitGross Profit shows the earnings of the business entity from its core business activity i.e. the profit of the company that is arrived after deducting all the direct expenses like raw material cost, labor cost, etc. from the direct income generated from the sale of its goods and services. A business interruption insurance comes as a silver lining as they cover such consequential loss. Given that judicial commentary in a number of cases over recent years has suggested a change in approach, it will be interesting to see whether the courts will adopt a case-by-case approach when interpreting such exclusion clauses going forwards.

• A consequential loss is a loss sustained by a business when it is unable to use its assets in the intended manner.
• There are several nuanced modifications that can be made to this language such as agreeing to liability for such damages “only to the extent covered by insurance.” This change broadens liability for consequential damages but perhaps not the risk as any claim would be covered by insurance.
• The courts continue to look at the meaning of “consequential loss” in limitation of liability clauses and at whether the traditional legal meaning or the ordinary language meaning should apply.
• If there is no such insurance coverage, a company must absorb the full amount of these losses.
• As a compromise, parties will often agree to cap consequential damages either at a specific dollar amount or a specific percentage based upon the contract value.
• This case serves as further guidance on the courts’ approach to interpreting the phrase “consequential losses” in an exclusion clause and develops the debate around whether the term should be given its traditional legal definition or interpreted using the ‘natural language’ definition.

UpCounsel is an interactive online service that makes it faster and easier for businesses to find and hire legal help solely based on their preferences. We are not a law firm, do not provide any legal services, legal advice or “lawyer referral services” and do not provide or participate in any legal representation. The Supreme Court of the United States has held in United States v. 50 Acres of Land that consequential damages are not available in U.S.

Do Not Exclude Consequential Damages

A common formulation with respect to punitive damages is to exclude such damages from the scope of indemnified losses as to claims between buyer and seller, but not those payable to third parties as a result of third party claims otherwise covered by the indemnities. One of the biggest risks contractors and subcontractors face on construction projects is liability for consequential damages, although many of them may not even know about that risk, much less understand it. Consequential damages are damages which flow indirectly from a breach of contract and are typically related to delays in performance and delays in completion of a project. The best way to think of such damages is in connection with an income-producing project such as a hotel, convention center, manufacturing facility, etc., from which an owner will derive revenue. If the project is not completed on time, the owner will lose the benefit of that revenue and the contractor and responsible subcontractors can face liability for that loss of revenue, i.e., consequential damages.

However, it is unlikely that such exclusion clauses will bar a claim for this type of financial loss. Parties should consider carefully the drafting of any exclusion clauses and the types of losses they are trying to exclude. Financial losses, such as lost profits and business interruption costs , may not necessarily constitute indirect or consequential loss or damage and, as a result, may not be captured by a generic description of categories of loss.

The risk of consequential damages and LDs generally relates to the failure to complete a project or achieve a milestone on time. When my clients are deciding how to manage this damages risk, I advise them to look at the complexity of the project, the quality of the design documents, the schedule and their contractual right to obtain time extensions.

Also called special damages, since they result from a breach of contract and yet would not necessarily be incurred by every injured party experiencing that breach. Consequential damages are generally not recoverable in contract disputes, but are recoverable in tort. This loss due to the halting of daily business operations is an example of consequential loss as it is an indirect loss. 2 Entertain Video Ltd issued proceedings claiming, among other things, loss of profit and other business interruption losses against Sony arising from a fire which destroyed Sony’s warehouse following the civil disorder and riots in London in 2011. In addition to the types of damages that exist, and the various scenarios for which you want to ensure you are covered, it is also important to know those times in which certain clauses may be included or excluded.