Breach Without Damage? Court Holds Suit May Be Dismissed
With the rise of condo defect cases came the phenomenon of claims based on technical violations of plans or applicable codes without much in the way of resulting damage to the structure. This case sheds some light on whether a plaintiff can still maintain a breach of contract action for money recovery under these circumstances. The answer seems to be that a breach by itself is not enough. Damage must be shown.
The case also has some pearls of wisdom on the following issues:
- Who decides -- judge or jury -- the amount of legal fees to be awarded when the fees are sought as an element of "damages" under an indemnity clause rather than under a prevailing party fee clause? Answer: the jury.
- What are the elements of an enforceable contract where -- as often seems to happen -- the deal arises out of informal communications without final mutual signatures? Check out the discussion.
- Does an indemnity clause covering "any and all claims" cover both tort and contract claims? Answer: yep.
A copy of the opinion also available here Download file
