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Notwithstanding the substantial logic and appeal of this argument, the court dismissed it almost out of hand by using a form of "boot-strap" argument--despite what appears to be contrary conduct, the owner cannot be said to be "estopped" from making this argument because (1) caselaw permits owners to claim liquidated damages even after the completion deadline has passed and (2) the contract itself provided for the assessment of liquidated damages.
The burden is on the party seeking to avoid liquidated damages to show that they are really a penalty, but doubts will be resolved in finding it to be penalty.
Commercial factors play a part, and the agreement of a liquidated damages sum may well be the product of negotiation or be reflective of the parties' agreement as to risk allocation.
The mere fact that the term "liquidated damages" is uses in the contract is not controlling to determine whether the claim is for liquidated damages or penalty.
The plaintiff sought liquidated damages in the amount of $109,029.
Thereafter, the IRS issued a deficiency notice with respect to taxes for the liquidated damages and Schleier, in turn, sought a refund for the tax paid with respect to the backpay recovery.
As an alternative or supplement to a restrictive covenant, physician executives should consider the use of a liquidated damage provision.
NEW ORLEANS -- An important Fifth Circuit decision in a dispute over the enforceability of a liquidated damages provision -- here, triggered by breaches of a non-compete clause in the sale of two vessels -- constitutes only the third time the Fifth Circuit has addressed this enforceability issue under maritime law.
Late penalty The contractor was at fault contracting authority is entitled to liquidated damages for late settlement.
The client does not expressly mention it to the contractor but it does not deduct the liquidated damages as they fall due.
Instead of using a liquidated damages provision, the buyer and sellers merely agreed in the purchase contract that the deposit would be "nonrefundable.