The pecuniary recompense given by a court of law to one who has suffered an invasion of a legal right through the act of another. The right invaded may be one which the plaintiff enjoys in common with other members of society, as, for example, his right to have his person or property not interfered 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 contract.

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 entire jurisdiction of the equity tribunals is concerned with remedies of a different order, as injunction, the specific enforcement of contracts, etc., the remedy of damages being for the most part left to the courts of common law. furthermore, not even at common law does every invasion 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 statu 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 be made therefore. 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 damages, in the technical sense of the term. Thus an action to recover the amount payable on a bond, or the amount due for goods sold and delivered, 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 man's character or property, or in the ordinary case of breach of contract, the action will be to recover the 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 ascertained by the court or jury (usually the latter) upon principles determined by law.

The principles upon which damages are measured 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 conditions 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 commutation 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 compelled 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 character 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 same principle is due the doctrine of aggravation of damages, 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 necessary to buy him off from a more violent vindication of them, but it is submitted that the survival of this barbarous principle into our milder age cannot be justified.

Obviously, the sound principle for the award of damages is that of restitution, rather than of satisfaction, the restoring to the injured party of the property of which he has been deprived, or making to him due compensation for the injury sustained by him, and this principle is generally followed by our law in most actions other than those above referred to. It is expressed in the phrase that damages are limited to the loss which the plaintiff has actually sustained. In practice, however, a more restricted rule is followed, the defendant being liable only for such damages as he did in fact contemplate or which are the natural and probable consequences of his acts, whether contemplated by him or not. This rule is equally applicable in cases of contract and of tort, and operates to exclude what are called 'remote' or merely 'consequential' damages. That, under a perfect system, the latter would also be included in an award of damages can hardly be doubted, but the judicial distrust of the jury, by whom, both in England and America, the award is usually made, has induced the courts to adopt the narrower rule.

Damages are also an available remedy in some cases of injury, even where no actual loss has been sustained. It is the violation of a legal right, and not the detriment or loss resulting therefrom, which furnishes the ground for an action for damages. Such an action, accordingly, is the appropriate remedy in the case of a trespass upon land, an unauthorized interference with a watercourse, and the like, although no injury or serious inconvenience to the tenant or riparian proprietor results. The damages to which the plaintiff is entitled in such a case are not 'substantial,' but 'nominal.' And, on the other hand, where loss or harm is sustained, but without the violation of a legal right, the dam is irremediable by any legal process. It is damnum absque injuria.

For the measure of damages appropriate to the various classes of rights, see the articles in which those rights and the remedies for their infringement are considered.

Consult: Holmes, The Common Law (Boston, 1881); Essays on Anglo-Saxon Law (Boston, 1876); Lee, Historical Jurisprudence (New York, 1900); Arthur G.Sedgwick, Elements of Damages (Boston, 1896); Sedgwick, Treatise on the Measure of Damages (8th ed., New York, 1891); Sutherland, Treatise on the Law of Damages (Chicago, 1893); Mayne, Treatise on the Law of Damages (5th ed., London, 1894); Watson, Treatise on the Law of Damages for Personal Injuries (Charlottesville, 1901); Harris, Treatise on Damages by Corporations (Rochester, 1894).