DAMAGES (OF. damage, domage, Fr. dont mage, from Lat. damnam, loss). The pecuniary recompense given by a court of law to one who has suffered an invasion of a legal right through the net of another. The right invaded may be one which the plaintiff enjoys in common with other members of society, as, for example, Ids right to have his person or property not inter fered with ; or his right not to be injured through the negligence of others; or it may be a right which he has acquired through entering into a special legal relation with another, as by con tract.
But, although the law furnishes a legal remedy for every violation of a legal right, that remedy is not always an action for damages. The en tire jurisdiction of the equity tribunals is con cerned with remedies of a different o•der—as injunction, the specific enforcement of contracts, etc.—the remedy of damages being for the most part left to the courts of common law. Further more, not even at common law does every inva sion of a legal right give rise to an action for damages. The breach of a condition, for example, is remediable only by action on the part of the one injured, thereby restoring both parties to their former condition. Thus if the condition was attached to a sale of land or goods. its breach enables the injured party to rescind the transaction and place himself in state quo, but not to sue for damages, however great the injury to him may have been.
Strictly speaking, the term damages is not applicable to all cases of a recovery of money for infringement of legal rights. but only to such as call for an estimate or admeasurement by the court or jury of the injury suffered and of the proper compensation to he made therefor. Where the 'damages' are liquidated, i.e. where the amount to be recovered is fixed in advance by agreement of the parties, they are not dam ages, in the technical icinpe of the term. Thus an action to recover the amount payable on a bond, or the amount. due for goods void and de livered, or to recover a sum of money paid to the defendant by mistake, is not an action for damages, but an action to recover a debt. But where the amount claimed is not ascertained, as where an injury has been done to a inan's char acter or property, or in the ordinary case of breach of contract, the action will he to recover he damages suffered through the defendant's wrongful act or default. The complaint or
declaration of the plaintiff sets forth an estimate of the damages sustained by him, the amount of which will then be conclusively aseerta hied by the court or jury (usually the latter) upon prin ciples determined by law.
The principles upon which damages are meas ured by the courts vary according to the nature of the right infringed and sometimes of the act by which it was violated, and are of a most illogical and unsatisfactory character. To a considerable extent they are still influenced by considerations which belong rather to the con ditions and feelings of primitive society than to those which now govern the relations of the parties and the administration of justice. In their origin, damages were a pecuniary commu tation of the right of private vengeance, and were based not on any principle of restitution, but on that of satisfaction to the injured party. It was a long step toward the orderly administration of justice when the victim of a theft was com pelled to rest satisfied with four times the value of the thing taken, instead of scourging the thief and selling him into slavery, as was the law of the Twelve Tables. But the damages so awarded were as clearly vindictive in char acter as was the harsher penalty of the earlier law, and this vindictive element still survives in the modern law of damages. Thus, it is still the law in England and in many of the United States that a tenant who commits willful waste on the premises shall pay thrice the amount of the damage committed, and that a tenant who refuses to quit after due notice shall thereafter pay his landlord double rent. To the me prin ciple is due the doctrine of aggravation of dam ages, or 'vindictive,' retributory,' or 'exemplary' damages, which permits a recovery in excess of the actual damage suffered in certain cases of breach of promise of marriage, libel, slander, and seduction. There was abundant justification for furnishing this solace to the vindictive feelings of the injured party in an age when it was neces sary to buy hint off from a more violent vindi cation of them, hut it is submitted that the survival of this barbarous principle into our milder age cannot be justified.