On Measuring Damages Where a Contract Breach Benefits the Promisee: Response to Mark Giancaspro, Quantifying Damages in Cases of Advantageous Breach: The Curious Case of McDonald’s Milkshakes

As someone who has regularly taught both contracts and remedies for the past decade and a half, I read with great interest Dr. Giancaspro’s article, Quantifying Damages in Cases of Advantageous Breach: The Curious Case of McDonald’s Milkshakes. I would strongly recommend this article to anyone interested in exploring one of the more fascinating issues that arises at the intersection of these two subject areas: that of ascertaining the damages for a party who “suffers” (if one can call it that) an “advantageous breach” of contract. This issue has long held a particular fascination for me because, on the one hand, if one focuses on the contractual duty owed to the promisee, it seems that she has, in fact, clearly suffered a wrong when the promisor breached his promise to her. On the other hand, of course, the promisee turns out to have profited quite nicely from this “wrong,” making any “damages” due her problematic under the traditional principles of compensation embraced by American contract law. As both a lecturer (at the Law School at the University of Adelaide) and a practicing attorney, Dr. Giancaspro has written an article that deftly explores this area by way of an entertaining case study involving the McDonald brothers and Ray Kroc. His article should prove valuable to academicians, judges, practitioners, and anyone else seeking “guidance as to the remedial consequences that may flow from advantageous breaches.”