The focus of this chapter is on the exploration of some central aspects of the law of damages which shed light on the degree to which the performance interest is protected in English law. The protection afforded to the performance interest by damages in English law is contrasted with the way in which the remedy operates in France. The first three sections of this chapter discuss how damages awards are measured, damages for non-pecuniary loss and damages for loss suffered by third parties respectively. In the fourth section, consideration is given to a common law limit on the right to recover compensatory damages which is often regarded as being incongruous with the protection of the performance interest, namely loss mitigation. The final section departs from the compensatory theme of the chapter by considering gain-based monetary awards. The chapter shows that whilst the protection of the performance interest through damages is stronger in France than in England, courts in the latter jurisdiction have recently exhibited greater willingness to adopt more protective and flexible solutions for contractual default.
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