CACI Breach of Contract Damages, Instruction by Instruction

A California breach of contract case is not tried as one claim. It is assembled instruction by instruction, and the verdict form follows those instructions. A damages model that does not map cleanly onto them invites the obvious cross-examination: which instruction is this number responding to?

This page sets out which CACI instruction governs each element, and — because that is the part usually left out — what the economic analysis has to establish under each one.

The claim itself: CACI 300 and 303

CACI 300 — Breach of Contract: Introduction. Frames the case for the jury.

CACI 303 — Breach of Contract: Essential Factual Elements. The spine of the claim. The plaintiff must prove the contract existed, that they did what the contract required of them (or were excused), that any condition required for the defendant’s performance occurred, that the defendant failed to perform, and that the plaintiff was harmed by that failure.

What the damages model must do: tie the harm to the specific failure identified under 303. Not to the relationship souring, not to the market turning — to the breach the jury will be asked about. Causation is established in the model’s structure, not asserted in its conclusion.

CACI 312 — Substantial Performance. Where the plaintiff’s own performance was imperfect but close enough. Frequently confused with 303; it is a separate instruction.

CACI 324 — Anticipatory Breach. Repudiation before performance was due, which moves the date the loss period opens.

The general measure: CACI 350

CACI 350 — Introduction to Contract Damages. The governing principle: enough money to put the plaintiff in as good a position as they would have occupied had the contract been performed. Damages must be caused by the breach and must be proved to a reasonable certainty — not to a precise figure.

What the damages model must do: build an explicit but-for scenario. Reasonable certainty is a standard about the fact of damage more than its precise amount, but the model still has to show its counterfactual was constructed from evidence — the plaintiff’s own history, the contract’s own terms, the industry’s own trend — rather than assumed.

General versus special damages: CACI 351

CACI 351 — Special Damages. Losses beyond those that would ordinarily flow from this kind of breach. Recoverable only where the breaching party had reason to know, when the contract was made, that such a loss was likely.

What the damages model must do: separate them. A single blended figure invites the whole award to be struck when one component fails the foreseeability test. Present ordinary losses and special losses as distinct lines, each with its own support, so the jury can adopt one without the other.

Lost profits: CACI 352 and 353

Two instructions, and which one applies changes the arithmetic.

CACI 352 — Loss of Profits: No Profits Earned. The plaintiff’s business earned no profits at all in the relevant period.

CACI 353 — Loss of Profits: Some Profits Earned. Profits were earned, just fewer than they would have been. The measure is the shortfall.

What the damages model must do: net out the costs the plaintiff avoided. A lost revenue figure presented as lost profits will not survive the first deposition. For a newer business, expect the reasonable-certainty challenge to land here rather than on the general measure — the yardstick method, comparable operations, and the plaintiff’s own pre-breach trend are what carry it.

Reliance and restitution: CACI 361 and 375

CACI 361 — Reliance Damages. Expenditures made in reliance on the contract, recoverable where the expectation measure is too speculative to prove. The fallback, not the default.

CACI 375 — Restitution From Transferee Based on Quasi-Contract or Unjust Enrichment. Recovery of a benefit conferred, where retaining it would be unjust. A different theory with a different measure, not an alternative label for contract damages.

What the damages model must do: keep the three measures separate and state which one is primary. Expectation, reliance and restitution answer different questions, and totalling them double-counts.

The implied covenant: CACI 325

CACI 325 — Breach of Implied Covenant of Good Faith and Fair Dealing. Every contract carries it. Pleaded alongside the express breach, it can reach conduct that technically complied with the written terms while depriving the plaintiff of the benefit of the bargain.

What the damages model must do: if the covenant claim reaches conduct the express breach does not, the incremental loss should be quantified separately. If it reaches the same conduct, say so — a duplicated figure across two theories is an easy target.

The three that shape the final number

CACI 358 — Mitigation of Damages. The defendant’s instruction. The plaintiff cannot recover for losses they could have reasonably avoided.

What the damages model must do: address mitigation affirmatively rather than waiting to be asked. Show what the plaintiff did, price what it recovered, and state what a reasonable alternative would have yielded. An unaddressed mitigation question becomes the defense’s closing argument.

CACI 359 — Present Cash Value of Future Damages. Future losses are reduced to present value.

What the damages model must do: state the discount rate and its source, separately from any growth assumption, so both can be tested independently. A single net rate hides the two assumptions that move the number most.

CACI 360 — Nominal Damages. Available where breach is proved but no substantial loss is. Worth knowing as the outcome a weak damages case produces.

Where contract damages meet tort damages

Contract cases sometimes travel with tort claims, and the tort damages live in a different series. CACI 3903N governs lost profits as an item of economic damage in tort, alongside the rest of the 3903 series — 3903C past and future lost earnings, 3903D lost earning capacity, 3903F damage to real property, 3903J damage to personal property, 3903M loss of use of personal property. Where both are pleaded, the economic analysis must avoid recovering the same dollar twice under two theories.

One numbering trap worth naming: CACI 361 is the reliance instruction — it is not, as sometimes cited, the good-faith instruction. That is 325.

A working checklist

1. Every figure maps to a numbered instruction the jury will actually receive
2. Ordinary and special damages are separated, and the 351 foreseeability basis is stated
3. Lost profits are net of avoided costs, and the right one of 352 or 353 is identified
4. Expectation, reliance and restitution are not combined
5. Mitigation is addressed in the model, not left to cross-examination
6. Future losses are discounted, with the rate and the growth assumption stated separately
7. Any overlapping tort claim is checked for double recovery against the 3903 series

Instruction numbering is from the Judicial Council of California Civil Jury Instructions. Instructions are revised periodically — confirm the current text before relying on any of this in a filing. This page is a practitioner reference, not legal advice.

Related: commercial litigation support · calculating breach of contract damages using CACI · lost profits calculations. Source: the Judicial Council’s California Civil Jury Instructions.