The question of compensating lost profits has long been associated with stringent evidentiary standards. In a recent decision under commercial case No. 2656/2024, issued in 2025, the Supreme Court of Cassation reaffirmed that this type of damage requires more than showing a contractual breach. It demands proof of a genuine, lawful, and reasonably certain opportunity for the creditor’s assets to increase—an opportunity that was ultimately frustrated.

The case concerned a failure to perform under a contract, where the creditor claimed it would have earned profit from a subsequent transaction had the agreed delivery been made. During the proceedings, it emerged that, at the relevant time, the law already required a licence to trade in the goods at issue, and the creditor did not hold such a licence. This fact fundamentally altered the legal analysis: when the law itself prohibits the performance of the intended activity, the prospect of earning profit cannot be regarded as real or certain. As a result, a core element necessary for awarding compensation was missing.

The Court relied on its settled jurisprudence, which consistently holds that lost profit must constitute actual—not hypothetical—damage. It must be proven both in principle and in amount, through concrete facts showing that, had the obligation been properly fulfilled, the creditor’s assets would indeed have increased. Foreseeability at the time of contracting and a direct causal link between the breach and the alleged loss are equally essential components of this assessment.

The Court further underscored its obligation to apply imperative statutory norms ex officio. Where legislation imposes specific requirements for carrying out a commercial activity, and such requirements have not been met, a court cannot ground an award of damages on a transaction that would have been unlawful or unenforceable.

In this sense, the decision clearly outlines the limits of Article 82 of the Obligations and Contracts Act: only lost profits that rest on realistic, provable, and legally permissible circumstances may be compensated. For businesses, the ruling serves as a reminder that a successful claim for lost profits requires more than establishing non-performance. It also demands proof of a concrete, achievable, and lawful opportunity for profit that was prevented.