Vanderbilt Law Review


Paul J. Hartman

First Page



Breach of contract to publish advertisement--certainty of lost anticipated profits--nominal damages: The rule of "certainty" with respect to awarding damages for a breach of contract is simply a standard requiring a reasonable degree of persuasiveness in the proof of the fact of damage and of the amount of damage.' Through the use of the standard of certainty, the court is enabled to insist that the jury must have factual data--something more than guesswork--to guide themin fixing the award. Loss of commercial profits, claimed as damages for breach of contract, has become the principal field for the application of the standard of certainty.

In cases of breach of contract for advertising, the claim for loss of profits has often failed because too uncertain. Profit on new business which might have been drawn to the advertiser usually has been disallowed because the evidence that is introduced to prove that such profits would have been made if the defendant had not committed the breach of contract is usually thought to be too speculative and uncertain to allow the anticipated profits as an element of damage.