5 · Concluding remarks

1.The conclusion suggested by this brief article is that the Supreme Court’s sweeping statement in NJA 2017 s. 9 — i.e. that the scope of the duty to mitigate remains the same regardless of whether the breaching party acted in wilful disregard of the aggrieved party’s rights — might have been too categorical. Examples are conceivable in which the conduct of the breaching party arguably is relevant in deciding whether the aggrieved party has complied with its duty to mitigate. Whether or not the standard of reasonableness that must be attained for the duty to mitigate to be discharged will be affected and lowered in cases of intentional breaches remains to be seen. It seems likely that NJA 2017 s. 9 will not be the last word on this subject.s. 474