Damages Following a Cure of a Breach - Does curing the breach make the breach itself disappear?

If not, are damages due?

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Hypothetical: Ace and Bulldozer, Redux - When (in our previous post on this topic) Bulldozer cured its breach, it ensured that the breach was not material.

But curing the breach did not make the breach itself disappear. Bulldozer was obligated to repair or pay for the damage immediately after it occurred; it breached when it did not do so.
Ace can recover losses caused by the breach.

Suppose, for example, that, as soon as Bulldozer walked off the job, Ace itself began to repair the damage to the house.

Question - Assume doing so was proper mitigation (and assume the cost of the repair was reasonably foreseeable at the time of contracting as the probable result of the breach, and that it is provable with reasonable certainty).

Then can Ace recover the costs of their repair under the expectation measure of damages?

Answer and Analysis - Yes. The failure to pay for or repair the damage immediately was a breach, and, as a result of the breach, Ace incurred the proper mitigation expense of beginning to repair the damage to the house.

To put Ace in as good a position as it would have been in had Bulldozer not breached, a court must award the repair expense under the expectation measure. (Remedies Tutorials 1 – 6 present the expectation measure).

Question - In our hypothetical, Bulldozer cured almost immediately. How quickly would Bulldozer have had to act in order to cure the breach? We address this in our next post on this topic.

The Law School Experience - These and related topics are covered in our tutorials on Criminal Law.

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