When There Is Loss but the Amount Is Unknown: The Court's Power to Assess Damages

Abstract

This volume asks whether compensation is possible even when the amount of loss is difficult to prove precisely. Relaxing the assessment of the amount does not exempt the occurrence of loss from proof. Only by separating the stages of occurrence, scope, amount, and reduction can the recognition of a reasonable amount avoid becoming an arbitrary figure. The path to relief opens where the occurrence of loss is recognized, proof of the specific amount is extremely difficult owing to the nature of the case, and the circumstantial facts to be used have been heard, and closes where the occurrence of loss itself is not recognized, so that there is no premise for determining the amount of damages under the provision relaxing proof of the amount. The six sections address, in turn, the order of occurrence and amount, difficulty arising from the nature of the case, the proof to be urged first, circumstantial facts and a reasonable amount, the scope of damages and reduction, and the endpoint of the reasons for assessment. The strongest counterargument is as follows. If an exact amount is required, the party that caused the loss may benefit from the lack of records. The substantive discussion of reconstructing fund flow tables, the amount of gain from crimes, and the presumption of securities losses is not addressed in this volume.