Contracts

Consequential Damages

Also known as: Indirect Damages

Indirect losses (lost profits, lost rent, lost business) caused by a contract breach, distinct from direct damages.

Consequential damages are indirect losses that flow from a breach but are not the direct cost of the breach itself. Examples: lost rent because the building opened late, lost profits from business interruption, loss of financing, loss of tax credits, loss of reputation. They are distinct from direct damages, which are the actual cost to fix or complete the breached work.

Most AIA standard contracts include a mutual waiver of consequential damages, meaning neither party can sue the other for these indirect losses. The waiver is one of the most contractor-protective provisions in standard construction contracts because consequential damages on a delayed building opening can dwarf the contract value. Custom contracts (and many owner-drafted forms) sometimes carve back the waiver, exposing the contractor to liability for the owner's lost rent or business interruption. Always read the consequential damages language carefully.

Frequently asked questions

What is the difference between consequential and direct damages?+

Direct damages are the cost to repair or complete the breached work (the cost to redo a defective install). Consequential damages are the indirect losses that flow from the breach (lost rent during the rework period, lost business income).

Why do construction contracts waive consequential damages?+

To bound contractor exposure. A contractor on a $2M project cannot reasonably price unlimited liability for an owner's lost rent or lost profits. Mutual waivers are the industry-standard balance.

Can liquidated damages exist alongside a consequential damages waiver?+

Yes. Liquidated damages are pre-agreed daily damages for late completion, agreed in advance precisely because consequential damages are otherwise waived or hard to prove. They are the bargained-for substitute for unlimited consequential exposure.

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