Abstract

This chapter addresses three puzzles that arise under the orthodox account of mitigation, explaining in each case how they are resolved by the new account of mitigation developed in this book. First, the conventional language of the ‘duty’ to mitigate, which persists despite routinely being disclaimed as inaccurate by judges. Second, the universal and homogenous application of mitigation to every assessment of loss, which is inconsistent with policy-based explanations of the doctrine such as self-reliance or prevention of waste. Third, the restricted temporal scope of mitigation—applying only after breach—which is hard to square with the focus on whether the claimant acted reasonably. The chapter argues that each of these features of the law of mitigation makes more sense once mitigation is understood as an aspect of causation, triggered by the claimant’s choice to respond abnormally to the breach.