‘Loss of opportunity or the question of contingencies’, by Maurice NUSSENBAUM, published in *Contrat Concurrence Consommation* (LexisNexis journals) – No. 12 – December 2019
The loss of opportunity has been defined by the Court of Cassation as the actual and certain disappearance of a favourable possibility. It must be measured against the value of the lost opportunity and cannot be equal to the value of that opportunity had it materialised.
It is therefore linked to the concept of chance, namely that which is capable of generating a gain.
This concept is often confused with that of lost profits, given that the latter are by their nature difficult to quantify with certainty.
However, case law distinguishes between them because the loss of a chance implies the loss of the probability of a favourable event occurring, and not merely the random nature of the lost gains.
It is often considered that the assessment of the element of chance (or the value of the lost opportunity) is a matter for the judge; however, the judge may be assisted by an appropriate economic analysis which, by distinguishing between different categories of chance, notably ‘decision’ to characterise the choice the victim might have made, and ‘valuation’ to characterise the uncertain nature of the outcome. It is thus possible to apply appropriate statistical analysis techniques based on both objective and subjective probabilistic approaches.
The key point is not to classify as a ‘loss of opportunity’ those damages which are in reality lost gains that are difficult to assess. Numerous examples are analysed to show that case law often classifies as a ‘loss of opportunity’ – particularly in the field of stock market investment – the loss suffered by an investor who has been misled by misleading information, even though the loss does not result from the loss of a probability of a favourable event but simply from a loss of earnings that is difficult to assess without a precise technical analysis.
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