Mitigation: Meaning in Law
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In legal terms, mitigation usually means the duty of a person harmed by a breach of contract or other wrong to take reasonable steps to limit the loss. Damages are not recoverable for losses that could reasonably have been avoided, but the reasonable costs of trying to avoid them generally are.
How the duty to mitigate damages works in contracts, with examples, mitigation clauses and the criminal-law meaning.
Last updated 28 October 2026
Mitigation meaning in plain English
If the other side breaks a contract, you cannot sit back and let your losses grow. The law expects you to act reasonably to keep them down, for example by buying replacement goods, re-letting premises or looking for comparable work. Strictly, it is not a duty you can be sued for breaching; it limits what you can recover. US courts sometimes call it the avoidable consequences doctrine.
The Restatement (Second) of Contracts §350 states the general rule: damages are not recoverable for loss the injured party could have avoided without undue risk, burden or humiliation, but the injured party is not barred from recovery to the extent it made reasonable but unsuccessful efforts to avoid the loss.
How the duty to mitigate works
- Reasonable, not perfect. The test is what a reasonable person would do in the circumstances. The injured party does not have to take significant risks, spend unreasonable sums or accept a substantially different or inferior substitute.
- Burden of proof. In most jurisdictions the party in breach must prove that the other side failed to mitigate and how much loss could have been avoided.
- Mitigation costs are recoverable. Reasonable costs of mitigating, such as broker fees to find a replacement tenant, are generally added to the damages.
- Sales of goods. Under UCC Article 2, a buyer can "cover" by buying substitute goods and recover the price difference (§2-712), and consequential damages are limited to losses that could not reasonably have been prevented by cover or otherwise (§2-715(2)(a)).
Examples of mitigation
| Situation | Typical mitigation step | Effect on damages |
|---|---|---|
| Supplier fails to deliver goods | Buy substitute goods at a reasonable price | Recover the extra cost of the replacement, not losses that buying a replacement would have prevented |
| Employee wrongfully dismissed | Look for comparable employment | Earnings from comparable work, or that reasonably could have been earned, are generally deducted |
| Tenant abandons a lease | Landlord tries to re-let the premises | Rent from a new tenant reduces the claim; whether a landlord must mitigate varies by state and lease type |
| Buyer refuses delivery of goods | Seller resells the goods in a commercially reasonable way | If the resale requirements of UCC §2-706 are met, the seller may recover the difference between the contract price and the resale price plus allowable incidental damages, less expenses saved because of the breach. Other remedies may apply. |
Mitigation clauses in contracts
Parties sometimes write the duty into the contract, especially next to indemnities, where it can be unclear whether the general mitigation principle applies to a claim for an indemnified loss:
Each party shall take all reasonable steps to mitigate any loss or damage it suffers in connection with this Agreement, including any loss for which it may claim under an indemnity given by the other party.
Mitigation in criminal law and other uses
In criminal sentencing, mitigation (mitigating circumstances or factors) means facts that support a lighter sentence, such as no prior record, genuine remorse or a minor role in the offense; they are weighed against aggravating factors. In environmental and planning law, mitigation means measures that reduce or offset a project's harm, such as restoring wetlands elsewhere.
How LexDraft helps
LexDraft can review limitation of liability and indemnity clauses in Microsoft Word, flag terms that change how losses are recovered, and propose tracked-change redlines, such as adding an express duty to mitigate indemnified losses. See how it handles limitation of liability clause review.
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Frequently Asked Questions
What does mitigation mean in legal terms?
Mitigation usually means the duty of a person harmed by a breach of contract or other wrong to take reasonable steps to limit the loss. Losses that could reasonably have been avoided are not recoverable as damages. In criminal law, mitigation instead means factors that support a lighter sentence.
What is the duty to mitigate damages?
It is the rule that an injured party cannot recover damages for losses it could have avoided with reasonable effort and without undue risk or expense (Restatement (Second) of Contracts 350). Reasonable costs of trying to mitigate are generally recoverable.
What happens if you fail to mitigate damages?
You are not liable for a separate wrong, but your damages are reduced by the amount of loss you could reasonably have avoided. In most jurisdictions the party in breach must prove the failure to mitigate.
Does a landlord have to mitigate damages?
It depends on the jurisdiction and the type of lease. Many US states require a landlord to make reasonable efforts to re-let after a tenant abandons a residential lease, while others do not or apply different rules to commercial leases.
What does mitigation mean in court in a criminal case?
In a criminal case, mitigation refers to facts the defense presents to support a lighter sentence, such as no prior record, remorse, a minor role in the offense or personal circumstances. The court weighs them against aggravating factors.
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Get Started with LexDraftFurther Reading
- Wex: Mitigation of damages (Cornell LII) — The duty to mitigate in contract and tort.
- UCC §2-712 (Cornell LII) — Cover: a buyer's procurement of substitute goods.
- UCC §2-715 (Cornell LII) — Incidental and consequential damages, limited by cover.
- Wex: Mitigating factor (Cornell LII) — Mitigation in criminal sentencing.