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| {{Manual|MSG|2010|10.4|Clause|10.3|medium}} | | {{Manual|MSG|2010|10.4|Clause|10.3|short}} |
| There’s a lovely long essay about [[consequential loss]], at the [[consequential loss]] page. Consequential losses are not generally available as a measure of [[damages]] under a {{t|contract}} (historically they were excluded as a rule; nowadays the [[common law]] regard it as a simple question of whether the [[loss]] was properly [[Causation|caused]] and [[reasonably foreseeable]]; losses that are consequential in nature may be forseeable, but it will only be in unusual circumstances.
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| That is the general position. Specifically under the GMSLA [[consequential loss]] is expressly excluded because they are, by nature, speculative, indeterminate and not [[reasonably foreseeable]] in the context of a stock lending arrangement. By nature, parties to a [[stock loan]] do not have in mind the potential profits each other could make with the securities or collateral transferred under the loan: No {{gmslaprov|Lender}} expects to underwrite the value of the Borrower’s lost opportunity to short if it fails to settle a {{gmslaprov|Loan}}. Each {{gmslaprov|Loan}} is designed to be easily cancellable at will by either party. There are specific self-help remedies for settlement failures (e.g.,{{gmslaprov|Buy-In}}s). It is hard to see how there could be any expectation that consequential losses would be available for breach, and it helps for the {{gmsla}} to make that explicit. It reflects the industry expectation, and takes away the temptation, sore for many [[Mediocre lawyer|underoccupied lawyers]], to argue that for some special reason — and here one should never underestimate the boundless imagination (or paranoia) of an underoccupied lawyer, particularly during the contract [[negotiation]] phase, to confabulate hypothetical special reasons<ref>I have seen it argued that a counterparty’s “fraud or wilful misconduct” is such a reason. But why? For what reason would ''why'' a contract is breached matter to the measure of damages for that breach?</ref> — that consequential loss might be appropriate in some cases.
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| ===Subject to Paragraphs {{gmslaprov|9}} and {{gmslaprov|11}}===
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| But what of the cagey [[caveat]] about Paragraph {{gmslaprov|9}} (''{{gmslaprov|Failure to Deliver}}'') and Paragraph {{gmslaprov|11}} (''{{gmslaprov|Consequences of an Event of Default}}'')? Search me. There is no obvious exception to the ban on [[consequential loss]] in paragraph {{gmslaprov|9}}, which talks about {{gmslaprov|Buy-In}}s and other self-help remedies which militate pretty hard ''against'' consequential damages. Likewise, Paragraph {{gmslaprov|11}} goes to some lengths to articulate and itemise the termination amount calculations, all of which are focused on actually incurred expenses, and there is nothing in there that talks about loss of opportunities — see Paragraph {{gmslaprov|11.3}} in particular.
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| {{sa}}
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| *[[Consequential loss]]
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| *[[Breach of contract]]
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| {{ref}}
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