Definition
"Of damages" is not itself a freestanding legal term but functions as a classificatory heading or phrase used in legal dictionaries, treatises, and pleadings to organize the substantive law governing monetary compensation awarded to an injured party in a civil action. When encountered as a section title or subheading — as in "Measure of Damages" or "Exemplary Damages" — it signals a body of doctrine addressing the types, calculation, and limits of awards made to redress legal injury.
In practice, the phrase appears most often as the second element of compound terms:
1. MEASURE OF DAMAGES: The legal standard used to calculate the monetary sum owed to a prevailing party. Different causes of action carry different measures — contract law typically awards expectation damages; tort law typically aims at compensation for actual loss.
2. EXEMPLARY DAMAGES (also punitive damages): An award beyond actual loss, imposed as punishment for conduct marked by fraud, actual malice, or deliberate violence or oppression, and as a deterrent to others. Not available in all causes of action or jurisdictions.
3. GENERAL DAMAGES: Those losses that necessarily and by implication of law follow from the act or default complained of, without requiring the plaintiff to plead or prove them specifically. Contrasted with special damages, which must be specifically alleged.
4. LIQUIDATED DAMAGES: A sum fixed in advance by contract to represent the parties' agreed estimate of loss upon a specified breach. Distinguished from a penalty, which courts may refuse to enforce.
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Common Confusion
"Of damages" as a heading can mislead researchers into treating the phrase as a term of art when it is structural. The operative legal term is always the full compound — "measure of damages," "exemplary damages," and so on. Researchers who index or search for "of damages" alone may retrieve incomplete or miscategorized results. Bouvier's, for instance, enters "General damages" and "Liquidated damages" as sub-entries under a broader "of damages" heading, then cross-references "Measure of" as a separate entry — meaning relevant doctrine is distributed across multiple locations in historical dictionaries.
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Why It Matters in Research
The primary research challenge with this heading is fragmentation. Historical legal dictionaries — Bouvier's prominently among them — organize damages doctrine by compound subtype rather than under a single consolidated entry. A researcher tracing the development of exemplary damages doctrine, for instance, must locate the "Exemplary damages" sub-entry, the "Measure of" cross-reference, and potentially separate treatise chapters, none of which may be indexed under a common term.
Several navigational traps follow from this structure:
First, terminology has shifted. What Bouvier's calls "exemplary damages" is today more commonly labeled "punitive damages" in American practice. A researcher reading nineteenth-century sources will encounter both phrases, sometimes used interchangeably and sometimes with subtle distinctions that later collapsed.
Second, the boundary between general and special damages has been redrawn repeatedly by procedural rules. Under common-law pleading, the distinction carried strict consequences for what had to be alleged in the declaration. Under modern notice pleading, the stakes are lower, but the substantive distinction persists in calculating recoveries — particularly for defamation and personal injury claims.
Third, "liquidated damages" doctrine sits at the intersection of contract and remedies law. Historical sources may classify it under damages, under contract formation, or under equity, depending on the author's organizational scheme. Bouvier's cross-referencing practice reflects this instability.
Fourth, the Law Mind corpus contains encyclopedia material distributed across torts, contracts, and intellectual property encyclopedias. A complete picture of damages doctrine — especially exemplary or punitive damages — requires consulting multiple volumes, as the IP context (trade secret remedies) involves statutory multipliers that do not exist in common-law tort.
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Historical Dictionary Support
Bouvier's treats damages doctrine through dispersed sub-entries rather than a single consolidated treatment. The entries recovered here illustrate both the organizational approach and its limits.
On exemplary damages, Bouvier's defines them as awards "allowed for torts committed with fraud, actual malice, or deliberate violence or oppression, as a punishment to the defendant, and as a warning to other wrong doers," citing Hale on Damages. This formulation is consistent with the dominant nineteenth-century understanding and closely tracks what modern courts still apply, though the terminology has largely shifted to "punitive damages" in American usage.
On general damages, Bouvier's offers the standard common-law formulation — losses "which necessarily and by implication of law result from the act or default complained of" — without elaboration, treating the definition as self-evident. Modern practice has found the line between general and special damages considerably less obvious, particularly in cases involving emotional distress or reputational harm.
Liquidated damages receives only a cross-reference to "Measure of," a pattern that points researchers toward a separate entry rather than consolidating the doctrine. This cross-referencing architecture is characteristic of Bouvier's and requires researchers to follow chains of internal references rather than expect a self-contained treatment.
What historical dictionaries including Bouvier's largely omit: the constitutional dimensions of punitive damages (limits on excessive awards under due process), statutory damage regimes in intellectual property and consumer law, and the modern debate over tort reform caps. These developments are entirely post-Bouvier's and require consulting twentieth- and twenty-first-century sources.
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Jurisdictional Note
Exemplary and punitive damages vary significantly by jurisdiction — some states require clear and convincing evidence of the requisite mental state; others apply bifurcated trial procedures; and statutory caps on punitive awards exist in many states. Federal constitutional limits on grossly excessive punitive awards apply nationally but leave substantial room for variation in application.
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Encyclopedia Cross-Reference
Damages and Remedies in Tort — Nominal Damages in Tort (The Law Mind Torts & Personal Injury Encyclopedia)
Negligence — Damages — Future Damages and Present Value (The Law Mind Torts & Personal Injury Encyclopedia)
Trade Secret Remedies — Injunctions, Damages, and Exemplary Damages (The Law Mind Intellectual Property Encyclopedia)
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