
Contents
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A. Introduction A. Introduction
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B. The Assessment of Damages B. The Assessment of Damages
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Breach of contract Breach of contract
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Damages in tort Damages in tort
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Mitigation of damage Mitigation of damage
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Experience in the United States Experience in the United States
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C. Other Valuation Questions C. Other Valuation Questions
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10 Monetary Obligations—Unliquidated Amounts
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Published:October 2012
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Introduction
As has been shown in Chapter 9, nominalism has developed and operated in the context of liquidated sums. The origins of the principle depend upon the presumed intention of the parties—whether that intention is mutually expressed (as in the case of a contract) or unilaterally stated (as in the case of a statutory provision, a judgment or award, or a pecuniary legacy). It must follow that the principle of nominalism can only apply to fixed or stated sums and that the principle cannot apply to obligations involving an unliquidated amount or claim.1 Instead, the extent of unliquidated amounts depends upon the principles applicable to the relationship at issue; it does not depend upon the law of money. It is the law of damages, breach of trust, restitution, agency, or other legal area which must determine the relevance and impact of variations in monetary value. In all these cases, the claims are unliquidated and require assessment by means of a valuation in terms of money. The extent of these obligations—and the outcome of the valuation process—depends upon the time and criteria by reference to which such process is carried out. As the German Supreme Court has noted, unliquidated claims contemplate the payment of money, but their extent is determined by relation to non-monetary elements, such as the price of goods at a particular time.2 In other words, unliquidated claims imply that an amount of money must be ascertained by reference to (or by comparison with) the value of the goods, services, or other items at issue. Whilst a fixed or liquidated sum is constant and unchanging in character, the valuation of a particular item implies that the monetary value attributable to an unliquidated claim can vary from time to time, with the result that the time at which the valuation process is undertaken will itself be one of the key determinants of value.3
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