Donovan v. Bachstadt

I must respectfully dissent from the opinion and judgment of the Court. The issue is whether out of pocket costs or benefit of the bargain damages are to be awarded for breach of an executory contract for the sale of real estate when the contract does not close because of a defect in title unknown to the seller at the time of execution of the contract.

*449Although commentators advocate the adoption of the “American rule” as suggested by the majority, there remains sufficient flexibility in the rule that would except its application to the circumstances of this case. While both Williston and…