Official Comments
 Article #  

 
3.2.16
(Damages)

Irrespective of whether or not the contract has been avoided, the party who knew or ought to have known of the ground for avoidance is liable for damages so as to put the other party in the same position in which it would have been if it had not concluded the contract.


 
Official Comment
 1. Damages if ground for avoidance known to the other party

This Article provides that a party which knew or ought to have known of a ground for avoidance is liable for damages to the other party. The right to damages arises irrespective of whether or not the contract has been avoided.

2. The measure of damages

Unlike the damages in case of non-performance under Chapter 7, Section 4, the damages contemplated by this Article are intended simply to put the other party in the position it would have been in if it had not concluded the contract.

Illustration

Company A sells software to company B and could not have been unaware of B’s mistake as to its appropriateness for the use intended by B. Irrespective of whether or not B avoids the contract, A is liable to B for all the expenses incurred by B in training its personnel in the use of the software, but not for the loss suffered by B as a consequence of the impossibility to use the software for the intended purpose.