MBE Rules · Remedies
Duty to Mitigate
Cal. Civ. Code § 3358; Green v. Smith (1968) 261 Cal.App.2d 392
The rule
The injured party may not recover for losses that could have been avoided by reasonable efforts. Mitigation requires only reasonable, not extraordinary, action. The burden of proving failure to mitigate rests on the breaching party.
In plain English
The duty to mitigate means that if someone suffers a loss due to a breach of contract, they must take reasonable steps to reduce that loss. They are not required to take extreme measures, but they cannot sit back and let the losses pile up without trying to lessen them.
Worked example
A contractor fails to complete a home renovation on time, causing the homeowner to incur additional costs for temporary housing. The homeowner finds a new contractor who can finish the work, but they choose to stay in the temporary housing for an extended period instead. The court finds that the homeowner failed to mitigate their damages by not seeking a quicker resolution.
Memory hook
Don't let losses pile up—mitigate or miss out!
The trap
Exams often present scenarios where the injured party's actions seem reasonable, but students overlook whether those actions were sufficient to mitigate damages. Watch for subtle hints that indicate a lack of reasonable efforts.
How examiners test it
Questions typically involve fact patterns where an injured party has incurred additional losses, prompting candidates to analyze whether those losses could have been avoided through reasonable actions.
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