(concurring in part and dissenting in part). The appeal, as we see it, turns on this overriding question: whether the County of Erie, in addition to repaying plaintiffs for mitigation damages and for their out-of-pocket losses incurred in reliance on the county’s promise to build the dome, should also pay a sum equal to the financial benefits plaintiffs would supposedly have achieved if the dome had been built and had proved to be a success.
The case may be simply stated. Believing that the domed stadium would be an economic boon and would result in increased property taxes, the county agreed to the plan advanced *146on behalf of plaintiffs under which the county would construct the domed stadium on land conveyed to it by plaintiff Kenford. About a year later, when it learned that it would cost far more to build the dome than had been expected, the county decided that it could not afford to proceed with construction. Eventually it reconveyed the land to Kenford. Plaintiffs’ determined efforts to make other arrangements for carrying the project forward proved unsuccessful. The dome was never constructed and neither plaintiffs nor the county have received any of the rewards which they had hoped to realize from the operation of the dome and its beneficial effect on the surrounding land.
Plaintiffs have recovered judgments totaling approximately $62,000,000 of which by far the greatest share represents plaintiffs’ loss of expectancies: i.e., the profits expected to be made by plaintiff Dome Stadium, Inc. (DSI), from its management of the stadium and the anticipated enhancement in the value of Ken-ford’s land surrounding the dome on which it had planned to develop a theme park, a golf course and other accessory facilities.
The majority have concluded that the proof submitted in support of the DSI’s claim for loss of profits was inadequate and for that reason have reversed and dismissed that claim. We agree with this result. They have also found that the damages awarded for Kenford’s “loss of appreciation in peripheral land values” were “too speculative to permit recovery” and have reversed that part of the judgment as well and, again, we concur. The majority would, however, permit Kenford to establish its land appreciation claim by “appraisal testimony indicating • what the land would have been worth as raw acreage immedi- ' ately following construction of the stadium.”
In our opinion, for reasons set forth in Part I, infra, plaintiffs, under the circumstances here, may not, as a matter of law — and irrespective of the speculative nature of the proof — recover any part of their claimed expectancy losses including the land appreciation claim. For this reason alone, there should be no retrial on that issue. Additionally, aside from the legal objections to any expectancy recovery discussed in Part I, we are of the view, as explained in Part II, infra, that whatever proof plaintiffs may offer in support of their land appreciation claim on a retrial would necessarily be too speculative to constitute a valid legal basis for the claim. Thus, we differ with the majority on two points: (1) whether, regardless of the proof offered, there can be a recovery for any expectancy losses, and (2) assuming, arguendo, that there can be such a recovery, whether the proof *147on the loss of expected land appreciation would, in any event, be too speculative.
We must, therefore, dissent from so much of the judgment as grants a new trial on this issue. We agree that the judgment for the recovery of mitigation damages should be affirmed but would grant a new trial to permit plaintiff Kenford to recover whatever additional reliance damages it may establish including the cost of acquiring the properties it assembled for the dome development.
I
The rule in Hadley v Baxendale (156 Eng Rep 145, 151), as it has been refined in the courts, provides that damages are considered to be foreseeable and hence chargeable to defendant when the loss is foreseeable in the ordinary course of events as the probable result of the breach or when, although not the probable result of the breach in the ordinary course of events, the damages result from special circumstances which defendant had reason to know (see, statement of the rule in Czarnikow-Rionda Co. v Federal Sugar Refining Co., 255 NY 33, 41, and in Restatement [Second] of Contracts § 351 [1], [2] [1979]). In applying the general Hadley v Baxendale foreseeability test to the expectancy damages claimed here, it is not enough to ask whether the defendant, when it agreed to the contract, could reasonably have foreseen that plaintiffs’ hoped-for benefits from the dome’s construction would not be realized if the dome were not built. The obvious fact that without the dome there would be no benefits for anyone was known to all. What must have been reasonably foreseeable is that if the county did not build the dome, it would not be built at all; for it is clear that the dome’s ultimate nonexistence results as much from plaintiffs’ inability to arrange other means of funding the project as from defendant’s decision not to go ahead with it. The proper question then is whether the county should have foreseen that plaintiffs would be unsuccessful in making other arrangements and would eventually look to the county as the sole means for making their hopes a reality (see, Czarnikow-Rionda Co. v Federal Sugar Refining Co., supra; Kerr S. S. Co. v Radio Corp., 245 NY 284). The record supports the conclusion, applying the general Hadley v Baxendale rule, that it was not reasonably foreseeable that plaintiffs would ultimately fail and would look to the county as their sole source of available financing. There is no evidence that plaintiffs discussed the point with the county and, indeed, no claim that this special circumstance was ever brought to the *148county’s attention.1 And plaintiffs’ persistent and prolonged attempts to find other sources of private and public financing after the county decided not to proceed must be taken as proof that they certainly did not believe that the county was the only possibility.2
It is not the general Hadley v Baxendale foreseeability rule (see, Restatement [Second] of Contracts § 351 [1], [2] [1979]), however, which affords the county its chief legal basis for objecting to plaintiffs’ expectancy claims — but rather a refinement of the general rule which has evolved from the efforts of courts to find a workable way of limiting recoveries of expectancy claims when they result in unfairly disproportionate damages.3 Under this special application of the general rule we conclude that the expectancy losses here should be disallowed for reasons of justice as excessive and disproportionate damages (see, Restatement [Second] of Contracts § 351 [3] [1979]) or as damages resulting from an unfair allocation of the risks which defendant could not have contemplated (see, e.g., Rochester Lantern Co. v Stiles & Parker Press Co., 135 NY 209, 217-218; Whitmier & Ferris Co. v Buffalo Structural Steel Corp., 104 AD2d 277, 279).
Before discussing these objections, we observe that there is no reason to treat the claim of DSI for loss of profits differently from those of Kenford for loss of enhancement in land value or for loss of its profits from the theme park, the golf course and other planned enterprises. The considerations which apply to all parts *149of plaintiffs’ expectancy losses are the same. The problem is one of viewing the situation at the time the contract was made and ascertaining whether, in the light of all the circumstances, the allocation of the risks upon which plaintiffs’ expectancy claims must depend is a fair one, or one that is unfair and productive of disproportionate damages which defendant could not have contemplated. It would be illogical to approach the question with hindsight in the light of what a jury may have done 14 years later or by fragmenting the claim and treating it piecemeal. The Hadley v Baxendale rule relates to considerations at the time the contract was made and, accordingly, we shall consider all claims for loss of expectancies as one.
Under plaintiffs’ theory, they should be compensated in damages, in addition to their out-of-pocket expenses, with an award that equals all the benefits they could conceivably have realized, assuming not only that the dome had been constructed but also that the dome achieved the hoped-for profits as an operating facility and produced the anticipated beneficial effect on the surrounding land. This claim that plaintiffs should have as damages for defendant’s breach the monetary equivalent of defendant’s full performance is made despite the fact that the county has received nothing at all of benefit from the undertaking.
Put simply, plaintiffs’ version of what was contemplated comes to this. The county not only promised to build the dome but to back up its promise with what amounts to a guarantee that if for any reason it could not build it, plaintiffs would receive whatever benefits the dome could have produced. Plaintiffs were to win with or without the dome and to win more without it than with it because they would then not have to perform their contracts and there would be no risks of the operation’s failure. On the other hand, the county, if, for example the construction bids proved to be too high, would have to choose the lesser of two evils: either build a stadium that it did not want because it was too costly or not build it and pay for plaintiffs’ huge expectancy losses on the “guarantee”. In blunt terms, it was “heads or tails” plaintiffs win. It is inconceivable that such an unfair and disproportionate allocation of the risks could have been contemplated by the county as part of the bargain, and it would be highly unjust to impose the result of the allocation as a foreseeable consequence of the breach.
Courts have devised various solutions to the problem of loss of expectancy claims which result in damages that are disproportionate and unfair. The “tacit agreement” test of Globe Refining *150Co. v Landa Cotton Oil Co. (190 US 540), a requirement that a loss must be not only foreseeable but also one for which the promisor, at least tacitly, had agreed to be responsible, was once the accepted limit on recoverable damages. Although now largely out of favor and rejected in the Restatement (Second) of Contracts (see, § 351, Reporter’s Note, comment a), the “tacit agreement” rule is still sometimes applied (see, Keystone Diesel Engine Co. v Irwin, 411 Pa 222, 191 A2d 376; but see, R.I. Lampus Co. v Neville Cement Prods. Corp., 474 Pa 199, 378 A2d 288; and see, Hooks Smelting Co. v Planters’ Compress Co., 72 Ark 275, 285-287, 79 SW 1052,1055-1056; Plug v Craft Mfg. Co., 3 111 App 2d 56, 120 NE2d 666; Thurner Heat Treating Co. v Memco, Inc., 252 Wis 16, 30 NW2d 228; see generally, Dunn, Recovery of Damages for Lost Profits § 1.15 E [2d ed 1981]). The approach taken by the American Law Institute in the Restatement (Second) of Contracts is that the “court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation” (Restatement [Second] of Contracts § 351 [3] [1979]; emphasis added; see, Harvey, Discretionary Justice under the Restatement [Second] of Contracts, 67 Cornell L Rev 666, 677-679 [1982]) 4
Whether it is under the “tacit agreement” test (Globe Refining Co. v Landa Cotton Oil Co., supra), or by ruling out the disproportionate loss in the interest of justice (Restatement [Second] of Contracts § 351 [3] [1979]) or as “excessive” and “harsh” (see, Sullivan v O’Connor, 363 Mass 579, 296 NE2d 183) or by simply holding that the damages are so disproportionate that they could not have been contemplated (see, Whitmier & Ferris Co. v Buffalo Structural Steel Corp., 104 AD2d 277, supra; Cayuga Harvester v Allis-Chalmers Corp., 95 AD2d 5, 14), the courts have found ways to exclude such losses. Thus, we recently held that under Hadley v Baxendale the parties could not reasonably have contemplated that for the breach of a first refusal option for *151additional billboards in a lease for advertising space (providing an annual rental to defendant in the amount of $600 per year) defendant would be held responsible for loss of profits in the amount of $227,000 based on what plaintiff would have earned from the billboards in its advertising business if it had been permitted to exercise the option (see, Whitmier & Ferris Co. v Buffalo Structural Steel Corp., supra, p 279). And in Cayuga Harvester v Allis-Chalmers Corp. (95 AD2d 5, supra), we rejected plaintiff’s contention as an unreasonable allocation of the risks that defendant’s failure to repair and replace defective parts in a harvesting machine should “despite its good-faith efforts to fulfill its obligations, subject it to a lawsuit for consequential damages and loss of profits which, in view of the size of plaintiff’s operation, could result in a recovery many times the value of the N-7 combine” (Cayuga Harvester v Allis-Chalmers Corp., supra, p 14).
Moreover, in cases not involving expectancy losses but claims for reliance damages only, the courts in applying Hadley v Baxendale have yielded to the “impulse to preserve some proportion between liability imposed on the defendant and the compensation which was paid to him under the contract” (Fuller & Perdue, The Reliance Interest in Contract Damages: 1, 46 Yale LJ 52, 88 [1936]).5 For example, in Rochester Lantern Co. v Stiles & Parker Press Co. (135 NY 209, supra), the court rejected plaintiff’s claims for expenditures for room rent, for rental of business premises and for salaries paid to employees all wasted by defendant’s failure to supply steel dies. In holding under the *152Hadley v Baxendale rule that such losses “could not have been contemplated”, it commented (135 NY, at p 218): “If we should adopt the rule of damages contended for by the plaintiff, what would be the limits of its application? Suppose instead of employing two men the plaintiff had projected an extensive business in which the dies were to be used, and had employed one hundred men * * * and had kept the men and the building unemployed for months and, perhaps, years, could the whole expense of the men and building be visited on the defendant as a consequence of its breach of contract? If it could we should have a rule of damages which might cause ruin to parties unable from unforeseen events to perform their contracts.”
Factors other than the illogic of the notion that the county could have agreed to bear such an unfair allocation of the risks compel the conclusion that the possibility of paying for plaintiffs’ expectancy losses could not have been in the county’s contemplation at the time it made the contract. For one thing, the remarkably informal and almost casual nature of the dealings between the parties and of the contract documents (see particularly, Exhibit 82-A, the county’s contract with Kenford and see infra, n 7) indicates that little, if any, thought could have been given to what risks the county was undertaking.6 We must assume that the county, if there had been the slightest hint of the allocation of risks which plaintiffs now seek to impose, would either never have signed the Kenford contract or would, through its attorneys, have insisted on a contract appropriate for a governmental entity with proper clauses excluding claims for consequential damages and loss of profits.7 And the nature of *153the contract must be considered — that, from the standpoint of the officials who dealt with the proposal’s sponsors, it was not a commercial contract at all8 but one to be made in the public interest on behalf of a municipal government.
This is not a case like Contemporary Mission v Famous Music Corp. (557 F2d 918), where plaintiff was deprived of profits from the sale of its recordings because it relied on the promise of defendant to promote and market the recordings and lost the opportunity to market them through other channels. Here, plaintiffs do not claim to have lost other available means for constructing the dome because of their dealings with the county. As it turned out, there apparently never were other available means.
Nor is it like Wakeman v Wheeler & Wilson Mfg. Co. (101 NY 205) where the plaintiffs had performed their part of the bargain in selling specified quantities of sewing machines in Mexico and defendant had reaped a benefit from these efforts. Here, the plaintiffs and the county both hoped to benefit if the county went forward and built the dome. When the county decided it could not do that, the contracts were of no value to it and it received no benefit whatsoever.
As pointed out, the justice standard formulated in Restatement (Second) of Contracts § 351 (3) (1979) is not the only test a court may apply to avoid unfair allocation of the risks and disproportionate damages. We find it difficult, however, to conceive of a better guideline than the dictates of justice or one that is more germane to the case at bar or, for that matter, to our recent decision in Whitmier & Ferris Co. v Buffalo Structural Steel Corp. (104 AD2d 277, supra). In applying the section 351 (3) justice standard, it makes no difference whether we compare *154what plaintiffs would receive (if permitted to recover for the full extent of their expectancies) with what defendant has actually received (no benefit at all since the dome was not built) or, as the majority contend we should (see supra, majority opn, n 5), with what defendant supposedly would have received from its own performance, assuming there had been no breach. For, very simply, the county has determined that the potential benefits to be derived from performance were outweighed by the cost of obtaining those benefits.9 The result of going forward with the dome project, the county has found, would be a detriment, not a benefit — a net loss, not a gain. But even without considering the prohibitive cost, it seems apparent that in any application of the section 351 (3) justice standard plaintiffs’ recovery for their full expectancies10 would outweigh the value of whatever benefits defendant might have received from performance. The expected tax revenues from increased assessments cannot reasonably be counted in the equation as a benefit to the county since they are not part of the consideration flowing from plaintiffs and would, in any event, be only what the owners of the peripheral land would have to pay in taxes for the additional municipal services required by their completed improvements. It seems equally inappropriate to count as a benefit to the county the dubious expectancy of profits to be derived from the dome operation both because such profits are at best conjectural and uncertain (see, majority opn, Point III, supra) and because the profits, if any, would be nothing more than what the county would be entitled to earn as a return on its own multimillion dollar investment and for the millions of dollars it would be obligated to pay in interest on the bond issue. Thus, whether or not defendant’s completed performance is assumed for the purpose of the analysis under the section 351 (3) justice standard, permitting the recovery of plaintiffs’ expectancy losses presupposes a decidedly unfair allocation of the risks and results in disproportionate damages.
In sum, it would be unjust to compensate plaintiffs with an award of damages which would put them in the same position they would have been in if the dome had been built. It is one thing to keep plaintiffs from being made worse off than they *155were before their reliance on the contract and before defendant’s breach; it is quite another to put them in a far better position and to do it at vast expense to defendant. Therefore, under the rules discussed above, Kenford’s claim for loss of enhanced land value as well as the claims of DSI and Kenford for lost profits should be rejected: either as damages that could not have been within defendant’s contemplation under Hadley v Baxendale (see, Whitmier & Ferris Co. v Buffalo Structural Steel Corp., 104 AD2d 277, supra) or in the interest of justice “in order to avoid disproportionate compensation” (Restatement [Second] of Contracts § 351 [3] [1979], see, comment f).
II
The additional question presented by plaintiffs’ claim for loss in enhancement of value in its peripheral lands is whether, considering the extraordinary nature of the Kenford domed stadium proposal, such claimed damages can ever be anything but too speculative to permit recovery. No case has been cited where a plaintiff in a suit for defendant’s failure to build a promised improvement has recovered damages based on what his adjoining land would have been worth if the defendant had performed. We have found no helpful precedent. Arguably, such damages are always too speculative since the values on which they are based must necessarily depend on hypothesizing a construction which did not take place and its consequent effect on market values. This could be so even in cases involving shopping centers or other commercial enterprises where comparable sales might be available to give some basis for an opinion as to the value impact the hypothesized development might have had on the property. Thus, in any case of this kind, unlike appropriation and condemnation cases, where the experts’ opinions are of what the property was actually worth in the market at the time of taking, the opinions (because they depend on the assumption of circumstances which never existed) are, perforce, always of theoretical, and never actual value. For this reason, we fail to see why the rationale behind the general judicial resistance to claims for loss of profits in cases involving untried businesses (see, majority opn, Parts I and III, supra; and see, Cramer v Grand Rapids Show Case Co., 223 NY 63; Manniello v Dea, 92 AD2d 426, 429; Miller v Lasdon, 78 AD2d 628) should not apply equally to a loss of claimed profit to land from an improvement which never existed.11 For both must depend on *156the assumption that the venture would be successful and, as has been noted, the “uncertainties of economic life are just too great” (Miller v Lasdon, supra [Silverman, J., concurring]).
But we need not address the question of whether there can ever be a recovery in a claim of this nature for loss of land value enhancement where the completion of a nonexistent improvement must be assumed, for the improvement which must be hypothesized here is a domed stadium — a stadium which, during the times in question, was to be one of two on the North American continent and a project for which the Houston Astrodome was the only model. Because of the unique nature of the proposed improvement and the absence of any comparable market data, the valuations would, in our opinion, always be hopelessly speculative — whether one hypothesizes for the purpose of the completion of the entire project or of only the dome. For unlike cases involving typical commercial developments, a market here must be manufactured by resorting to sales and market information from Houston and other distant areas or to local developments which are totally dissimilar.
It does not alleviate the problem to point out, as the majority do, that defendant, after its objections to the entire line of proof as legally speculative and therefore inadmissible were overruled, adduced some proof through its own expert as to the theoretical impact the dome’s construction might have had. That the defendant, as a matter of trial tactics, felt it had to counter plaintiff Kenford’s speculative proof with its own proof does not result in a waiver of its objections. It has properly preserved the issue for review (see, CPLR 4017, 5501; see generally, 1 Wigmore, Evidence § 18 D, at 836-838, 837, n 36 [1983]). And the county’s efforts to rebut Kenford’s expert can certainly not have had the curative effect of making admissible evidence which, because of its very nature, was speculative as a matter of law, and which, for that reason, should have been excluded. In sum, whether the land is valued on the assumption that the peripheral developments have been completed or, as the majority direct, “as raw acreage immediately following construction of *157the Dome,” the proof, we believe, must be incurably speculative and for that reason we find a retrial on the land enhancement issue unwarranted.
For these reasons, we believe that the judgment for the recovery of mitigation damages should be affirmed and that a new trial should be granted only on the issue of Kenford’s reliance damages. Plaintiffs’ other claims should be dismissed and the judgment appealed from insofar as it dismisses plaintiff Kenford’s claim for loss of profits on the projected improvements on the peripheral lands should be affirmed.
O’Donnell and Schnepp, JJ., concur with Doerr, J.; Hancock, Jr., J. P., and Boomer, J., dissent in part, in an opinion by Hancock, Jr., J. P.
Judgment modified, on the law, and as modified, affirmed, without costs, and matter remitted to Supreme Court, Erie County, for a new trial, in accordance with opinion by Doerr, J.
. Compare Czarnikow-Rionda Co. v Federal Sugar Refining Co. (255 NY 33), Kerr S. S. Co. v Radio Corp. (245 NY 284) and Hadley v Baxendale (156 Eng Rep 145) where the special circumstances (i.e., plaintiff’s inability to purchase sugar in the open market in Czarnikow, the important commercial nature of the transaction referred to in the radiogram in Kerr S. S. Co., and that the flour mill’s continued operation was dependent upon prompt delivery of the broken shaft in Hadley v Baxendale) were not known to the defendants.
. Plaintiffs’ “mitigation damages” are based on their efforts to secure alternate funding for the dome after the county decided not to go forward. It must be assumed that these efforts were undertaken in good faith and that plaintiffs thought that they had at least a reasonable chance of success. Otherwise, such damages should be disallowed.
One must also assume that if the county officials had been advised in August of 1969 that the county was then considered to be the only potential funding source for the project and that it might in the future be held accountable as such, the county would never have agreed to the contract without a clause excluding claims for loss of profits and consequential damages.
. See generally, Harvey, Discretionary Justice Under the Restatement (Second) of Contracts, 67 Cornell L Rev 666, 676-679 (1982); Comment, Lost Profits as Contract Damages: Problems of Proof and Limitations on Recovery, 65 Yale LJ 992, 1020-1026 (1956); Fuller & Perdue, The Reliance Interest in Contract Damages: 1, 46 Yale LJ 52, 84-88 (1936); Fuller & Perdue, The Reliance Interest in Contract Damages: 2, 46 Yale LJ 373, 374-376 (1936).
. For a discussion of a proposal made by former Chief Judge Charles D. Breitel as an alternative to the “tacit agreement” test of Globe Refining Co. v Landa Cotton Oil Co. (190 US 540) and to the justice standard postulated in Restatement (Second) of Contracts (§ 351 [3]), see, Harvey, Discretionary Justice Under the Restatement (Second) of Contracts (67 Cornell L Rev 666, 677, n 44 [1982]). Judge Breitel’s proposal was as follows: “A court may limit damages for foreseeable loss by excluding recovery for loss of profits by allowing recovery only for loss incurred in reliance or otherwise if it concludes that the arrangement * * * in the particular circumstances was not intended to embrace a disproportionate extended liability” (56th Ann Meeting of Am Law Inst, Proceedings, at 342-343 [1979]).
. In his authoritative article on reliance interests, Professor Fuller (citing New York decisions) comments: “The fact that the maximum benefits derivable from the contract by the defendant were very small in comparison with the liability sought to be imposed on him was expressly made a basis for denying the relief asked in Rochester Lantern Co. v Stiles & Parker Press Co., 135 N.Y. 209, 31 N.E. 1018 (1892),. and was no doubt an important if latent factor in Price v Eisen, 31 Mise. Rep. 457, 64 N.Y. Supp. 405 (App. Term 1900), and Koneman v Seymour, 176 111. App. 629 (1913)” (Fuller & Perdue, The Reliance Interest in Contract Damages: 1, 46 Yale LJ 52, 88, n 58 [1936]; see generally, references cited supra, n 3).
Courts in other jurisdictions have made express references to the disproportion between the liability sought to be imposed on defendant and the benefits received. For example, in ThurnerHeat Treating Co. v Memco (252 Wis 16, 30 NW2d 228), the court in rejecting the claim for loss of profit where the plaintiff sought $2,337 for a job which earned the defendant $149.50 stated “while this discrepancy in itself does not justify a holding that $2,337 would necessarily be excessive damages, it is some evidence that the respondents would not have agreed to do the work if such damages were contemplated” (see also, Hooks Smelting Co. v Planters’ Compress Co., 72 Ark 275,285-287,79 SW1052,10551056; Plug v Craft Mfg. Co., 3 111 App 2d 56, 120 NE2d 666; Sullivan v O’Connor, 363 Mass 579, 584-586, 296 NE2d 183, 187-188).
. In Restatement (Second) of Contracts § 351 comment f, at 141 (1979), pertaining to various factors that should be considered in excluding disproportionate damages under the justice standard, the reporter states: “Another such circumstance is an informality of dealing, including the absence of a detailed written contract, which indicates that there was no careful attempt to allocate all of the risks. The fact that the parties did not attempt to delineate with precision all of the risks justifies a court in attempting to allocate them fairly.”
. The county’s agreement with Kenford for the construction of the multimillion dollar domed stadium is in a five-page agreement (Exhibit 82-A) consisting of six paragraphs, almost all of which concern the terms of a lease agreement to be agreed upon in the future. The single clause pertaining to the county’s undertaking to construct the domed stadium is as follows: “The County shall construct domed facilities comparable to the Houston Astrodome on the stadium site area, and shall construct access roadways as generally depicted on the attached map, Schedule B. Such construction of the domed stadium facilities shall be commenced by the County within twelve (12) months after execution of this Agreement.” There are no limits on costs or other safeguards. The promise is unconditional and absolute. For purposes of contrast only, compare the “Termination for Convenience of the Government” clause in the United States Government construction contract which (in 1 of 11 *153paragraphs contained in that clause in the standard contract covering 103 pages in the form book [11 McBride and Touhey, Government Contract Cyclopedic Guide to Law, Administration, Procedure, at 1-75 — 1-178]) reads as follows: “(a) The performance of work under this contract may be terminated by the Government in accordance with this clause in whole, or from time to time in part, whenever the Contracting Officer shall determine that such termination is in the best interest of the Government. Any such termination shall be effected by delivery to the Contractor of a Notice of Termination specifying the extent to which performance of work under the contract is terminated, and the date upon which such termination becomes effective” (11 McBride and Touhey, Government Contracts Cyclopedic Guide to Law, Administration, Procedure, Standard Form 23-A, Termination for Convenience of the Government, at 1-128 [rev ed 1984]).
. Restatement (Second) of Contracts § 351 comment f, at 141-142 (1979) states: “The limitations dealt with in this Section [on the recovery of disproportionate damages] are more likely to be imposed in connection with contracts that do not arise in a commercial setting.”
. The bond resolution passed in 1968 was for $50,000,000. The bids for the stadium came in at $70,000,000. In addition, the county was obligated “to acquire the remaining portion of the stadium site area” (Resolution, Erie County Legislature, June 18, 1969).
. The total of plaintiffs’ proof on trial for loss of expectancy damages was approximately $315,000,000. The total of the demands in plaintiffs’ complaints was $495,000,000.
. See Fuller & Perdue, The Reliance Interest in Contract Damages: 2, 46 Yale LJ 373,374-377 (1936). The authors note (at 373-374): “The objection that damages measured by the expectancy are too ‘conjectural’ to be allowed can obviously have no application to a case where the subject matter of the contract *156has a market value and the plaintiff seeks only the difference between the contract price and the market value. The objection can arise only (1) where the contract relates to a subject matter of uncertain value, that is, having no ‘market’ ”,
In the case at bar we submit that the damages are speculative because of the hypothetical nature of the improvement and of the market — the exact opposite of the situation in Contemporary Mission v Famous Music Corp. (557 F2d 918, 927), where the court observed: “This is not a case in which the plaintiff sought to prove hypothetical profits from the sale of a hypothetical record at a hypothetical price in a hypothetical market.”