Section 4.9 Avoidable Consequences

• Library: Contracts 2016 Supp

3. (§4.9) Avoidable Consequences

The Restatement (Second) of Contracts (1981) confirms the accepted rule in Missouri that, in breach of contract cases, “damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation.” Restatement (Second) of Contracts § 350(1); Richardson v. Collier Bldg. Corp., 793 S.W.2d 366 (Mo. App. W.D. 1990). Under this rule, commonly known as avoidable consequences or the duty to mitigate, it is incumbent on a party to make reasonably prudent efforts to minimize or avoid resulting damages, and the courts will not allow plaintiffs to recover damages they could have avoided with such effort. Wolf v. Mo. State Training Sch. for Boys, 517 S.W.2d 138 (Mo. banc 1974); A.G. Edwards & Sons, Inc. v. Drew, 978 S.W.2d 386 (Mo. App. E.D. 1998); Gee v. Payne, 939 S.W.2d 383 (Mo. App. W.D. 1997). This duty to mitigate and avoid consequences arises when a party learns that the contract has been repudiated or breached—not before. Richardson, 793 S.W.2d 366. But the plaintiff’s actions before the breach of a contract, while not governed by the rules of avoidable consequence and mitigation, may ultimately be taken into account by a court when it fixes the amount of damages to
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