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damages, broadly speaking, include the difference between the value of a nondefective toaster and the value of the defective toaster actually delivered. Consequential damages involve the loss of the toaster’s usefulness to the restauranteur—here, the lost profits stemming from the restauranteur’s inability to toast bread for her patrons. Of course, if the defective wiring were to start a fire that burned down the restaurant, consequential damages could include lost business due to inability to operate, as well as costs to repair or rebuild the restaurant. [ See 2 Hawkland UCC Series § 2-715:3, Westlaw (database updated June 2021).] d. Proving Consequential Damages with Reasonable Certainty To recover consequential damages, the buyer must prove those damages with reasonable certainty. Reasonable certainty does not necessarily require absolute mathematical precision. If absolute precision is not practicable, then a reasonable estimate should normally suffice. The precise degree of proof required will, of course, vary with the circumstances. For example, exact certainty is often impossible with items such as goodwill. In this regard, courts may consider the willfulness of the breach and, for instance, require a somewhat lesser quantum of proof if the breach was willful. The bottom line here is that the buyer cannot recover for speculative, conjectural, or remote damages. [ See Simeone v. First Bank N.A. , 73 F.3d 184 (8th Cir. 1996); 2 Hawkland UCC Series § 2-715:3, Westlaw (database updated June 2021); Restatement (Second) of Contracts § 352, cmt. a.] Proof of Lost Profits In the seller’s case, proving lost profits is typically relatively easy. Yet the buyer often has a harder time here. If the seller’s breach impedes a well-established business of the buyer’s, then evidence of past performance can furnish a reasonable projection of lost profits. If the buyer’s business is new, the relevant transactions extend far into the future ( e.g. , a requirements contract), or if the buyer’s business is volatile, then proving lost profits, while not impossible, is problematic indeed. In this case, the buyer may need to furnish extensive evidence, such as economic and financial data; market analyses; data regarding similar, established businesses; expert testimony; and so on. [Restatement (Second) of Contracts § 352, cmt. b.] Example : An entrepreneur engaged a consultant to help him establish a chain of car washes. As to the first location, the consultant brokered a sale of the necessary equipment from a manufacturer to the entrepreneur. The equipment proved defective. Also, the consultant’s financial projections on the first location proved overly optimistic, and the consultant improperly installed the location’s heating system. For these reasons, the entrepreneur fired the consultant and refused to engage it for later locations, though
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