§ 19-31 Contract - Special Damages

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 19-31 Contract - Special Damages

Special or consequential damages may be recovered if they either flow as a natural consequence of the breach or have been reasonably within the contemplation of the parties at the time of the contract. When a plaintiff seeks special damages for breach of contract, he must prove both the fact of damage and the amount of damage with a reasonable degree of certainty. The fact of damage is proved by showing:

(1) that the plaintiff realized an actual loss he would not have incurred but for the defendant's breach of contract; and
(2) the loss was a natural consequence of the breach which may reasonably be supposed to have been within the contemplation of the parties at the time the contract was made.

The amount of damage may be established by proving the actual amount of the out-of-pocket loss or a reasonably accurate estimation thereof.

To recover special damages for the breach of a contract, the plaintiff must establish the special circumstances under which the contract was made were communicated by the plaintiff to the defendant. In any instance, the plaintiff cannot recover special damages if the special circumstances were wholly unknown to the defendant when the contract was entered into. Notice at the time of the contract of circumstances from which special damages may reasonably be expected to result will make the defendant liable for such damages on the ground that they were within the contemplation of the parties, and therefore are regarded as forming a part of the contract. Accordingly, special damages, such as loss of income or profits, are recoverable if they were within the reasonable contemplation of the parties at the time of the making of the contract. However, if the plaintiff's proof is speculative, uncertain, or otherwise insufficient to permit calculation of his special damages, his claim should be denied.

Special damages are by their very nature conditioned by the particular circumstances of each case. The party claiming special damages must show that the defendant was clearly warned of the probable existence of unusual circumstances or that because of the defendant's own education, training, or information, the defendant had reason to foresee the probable existence of such circumstances. While it is true that the defendant need not foresee the exact dollar amount of the injury, the defendant must know or have reason to know the special circumstances so as to be able to judge the degree of probability...