International Construction Law Review


M. Saleh Jaberi*

Partner, ESK Law Firm
Unlike compensation for pecuniary losses, the common law courts have traditionally been averse to awarding damages for non-pecuniary harm resulting from breaches of contract, as such losses used to be considered unforeseeable. However, several exceptions have developed and the courts have awarded damages for emotional distress where the main object of a contract was personal, or a breach of contract led to physical inconvenience. Although the essential nature of construction contracts is material, a review of the authorities shows that the courts have often awarded damages for non-material damage in residential building cases. This article looks for the principles and tests that have been used by the courts to award damages for non-pecuniary losses in construction cases, despite ongoing objections.


One of the main purposes of the law in ancient societies was to regulate people’s behaviour and protect their property against physical damage. The primitive and punitive Code of Hammurabi, based on even older collections of Sumerian and Akkadian law, provides for economic compensation or restitution for building damage.1 The Twelve Tables, known as the first code of Roman law, and the lex Aquilia that partly displaced the Tables in the early third century BC, provided for the payment of monetary compensation for property damage.2 Several centuries of discussions have followed regarding the theory of restitution and the consequences of civil liability. However, it is believed that the distinction between pecuniary and non-pecuniary losses was not clearly drawn until the nineteenth century.3


The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2024 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.