Cleveland, OH 44114 stand those damages directly related to the design defect. Dorestin v. The department store can sue for both consequential and direct damages. This is true whether there is a dispute between an owner and a general contractor or a dispute between a general contractor and a subcontractor. While we can hardly claim that the answer is now clear, the primary factor appears to be foreseeability of … The question of whether lost profits resulting from a contract breach constitutes direct or consequential damages has vexed practitioners for decades. Corp., 758 F.2d 1073, 1079 (5th Cir. 1985). What was once considered to be a consequential loss may now be a direct loss. Consequential loss confuses business people and some recent cases have added to the confusion. As a result, instead of forseeability, the difference between direct and consequential damages depends on whether the damages represent (1) a loss in value of the other party’s performance, in which case the damages are direct, or (2) collateral losses following the breach, in which case the damages are consequential. Atl. The consequential damages are the costs the department store had to pay to hire a new manufacturer to finish what the toy store failed to do. And when you throw in the term direct damages, the conversation gets even more complicated. Consequences of Consequential Damages. Consequential damages are damages that “do not necessarily, but do directly, naturally, and proximately result from” the injury for which compensation is sought. Direct damages are such as follow immediately upon the act done; while consequential damages are the necessary and connected effect of the wrongful act flowing from some of its consequences or results though to some extent depending on other circumstances. Toll Free: 800.975.9468 (Continued on page 2) Fax: 216.241.4520 Direct Damages, Consequential Damages & Liquidated Damages: A Brief Review by Robert Gavin We often are asked “What is the difference between direct … "Rather than turning on foreseeability, the difference between direct and consequential damages depends on whether the damages represent (1) a loss in value of the other party's performance, in which case the damages are direct, or (2) collateral losses following the breach, in which case the damages are consequential." There are really two types of damages for a breach of a construction contract. Rather than turning on foreseeability, the difference between direct and consequential damages depends on whether the damages represent (1) a loss in value of the other party’s per­form­­ance, in which case the damages are direct, or (2) collateral losses following the breach, in which case the damages are consequential. The distinction between direct and consequential damages is important when the parties’ contract contains a clause barring consequential damages. Examples of direct damages include unpaid contract amounts, cost to repair defective work, and reduced project value due to nonconforming work. This is part of Dana Shultz’s Canonical Qs on the Law series of questions and answers about legal issues, concepts and terminology. The courts have adopted different approaches to clauses which seek to exclude or include consequential loss from the scope of damages that a party to an agreement can claim. Reynolds Metals Co. v. Westinghouse Elec. 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