An equitable approach to mitigation in contract
University of British Columbia
Doctor of Philosophy - PhD
This dissertation considers the scope and content of the doctrine of mitigation (“Mitigation”) as it applies to damages for breach of contract, and aims to accomplish two overarching goals. The first goal is to confront and dispel a number of misunderstandings about Mitigation that appear frequently in jurisprudence on the topic, and academic commentary on the subject. The second goal is to establish a new model for understanding Mitigation that establishes what the doctrine is in substance, and how, why, and when it will or will not (or should/should not) apply to any given claim for contract damages. The author accomplishes the first objective by examining each of these prominent misunderstandings and unpacking the inaccuracy or incoherence in each of them. The author obtains the second objective by setting out answers to each of the four key concerns or questions identified (i.e., what, how, why and when). The answers provided to these key questions are derived from a survey of the leading decisions on Mitigation generally accepted as being authoritative in Canada, the United Kingdom, New Zealand, and Australia. The answers provided to “what” and “why” are the most jurisprudentially novel of the four, and arguably the most important. The author’s explanation of “what” Mitigation is posits that it is effectively an equitable doctrine, and ought to be understood in these terms. The author’s explanation as to “why” the doctrine applies follows from this classification, and asserts that Mitigation exists to promote or ensure the realization of contract’s overarching purpose when damages are assessed for breach. These two answers are supported by the leading case law surveyed by the author, and they are also further buttressed by an analysis of the underpinnings of contract and its purpose in Chapter I, and an historical theoretical account of the role of equity as a necessary supplement to the common law in Chapter II.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Peter A. Allard School of