Also found in: Dictionary, Thesaurus, Financial, Idioms, Encyclopedia.
Related to Liquidated: Liquidated damages

DAMAGES, LIQUIDATED, contracts. When the parties to a contract stipulate for the payment of a certain sum, as a satisfaction fixed and agreed upon by them, for the not doing of certain things particularly mentioned in the agreement, the sum so fixed upon is called liquidated damages. (q.v.) It differ from a penalty, because the latter is a forfeiture from which the defaulting party can be relieved. An agreement for liquidated damages can only be when there is an engagement for the performance of certain acts, the not doing of which would be an injury to one of the parties; or to guard against the performance of acts which, if done, would also be injurious. In such cases an estimate of the damages may be made by a jury, or by a previous agreement between the parties, who may foresee the consequences of a breach of the engagement, and stipulate accordingly. 1 H. Bl. 232; and vide 2 Bos. & Pul. 335, 350-355; 2 Bro. P. C. 431; 4 Burr, 2225; 2 T. R. 32. The civil law appears to agree with these principles. Inst. 3, 16, 7; Toull. liv. 3, n. 809; Civil Code of Louis. art. 1928, n. 5; Code Civil, 1152, 1153.
     2. It is to be observed, that the sum fixed upon will be considered as liquidated damages, or a penalty, according to the intent of the parties, and the more use of the words "penalty," &c "forfeiture," or "liquidated damages," will not be regarded is at all decisive of the question, if the instrument discloses, upon the whole, a different intent. 2 Story, Eq. Sec. 1318; 6 B.& C. 224; 6 Bing. 141; 6 Iredell, 186; 3 Shepl. 273; 2 Ala. 425; 8 Misso. 467.
     3. Rules have been adopted to ascertain whether such sum so agreed upon shall be considered a penalty or liquidated damages, which will be here enumerated by considering, first, those cases where it has been considered as a penalty and, secondly, where it has been considered as liquidated damages.
     4.-1. It has been treated as penalty, 1st. where the parties in the agreement have expressly declared the sum intended as a forfeiture or a penalty, and no other intent can be collected from the instrument. 2 B. & P, 340, 350, 630; 1 McMullan, 106; 2 Ala. 425; 5 Metc. 61; 1 H. Bl. 227; 1 Campb. 78; 7 Wheat. 14; 1 Pick. 451; 4 Pick. 179; 3 Johns. Cas. 297. 2d. Where it is doubtful whether it was intended as a penalty or not, and a certain debt or damages, less than the penalty, is made payable on the face of the instrument. 3 C. & P. 240; 6 Humph. 186. 3d. Where the agreement was made, evidently, for the attainment of another object, to which the sum specified is wholly collateral. 11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418. 4th. Where the agreement contains several matters, of different degrees of importance, and yet the sum named is payable for the breach of any, even the least. 6 Bing. 141; 5 Bing. N. C. 390; 7 Scott, 364; sed vide, 7 John. 72; 15 John. 200. 5th. Where the contract is not under seal, and the damages are capable of being certainly known and estimated. 2 B. & Al. 704; 6 B. & C. 216; 1 M. & Malk. 41; 4 Dall. 150; 5 Cowen, 144.
     5.-2. The sum agreed upon has been considered as liquidated damages, 1st. Where the damages are uncertain, and are not capable of being ascertained by any satisfactory and known rule. 2 T. R. 32; 1 Alc. & Nap. 389; 2 Burr, 2225; 10 Ves. 429; 3 M. & W. 545; 8 Mass. 223; 3 C. & P. 240; 7 Cowen 307; 4 Wend. 468. 2d. Where, from the tenor of the agreement, or from the nature of the case, it appears that the parties have ascertained the amount of damages by fair calculation and adjustment. 2 Story, Eq. Juris. Sec. 1318; 10 Mass. 459; 7 John. 72; 15 John. 200; 1 Bing. 302; 7 Conn. 291; 13 Wend. 507; 2 Greenl. Ev. Sec. 259; 11 N. H. Rep. 234; 6 Blackf. 206; 26 Wend. 630; 17 Wend. 447; 22 Wend. 201; 7 Metc. 583; 2 Ala. 425; 2 Shepl. 250.
     Vide, generally, 7 Vin. Ab. 247; 16 Vin. Ab. 58; 2 W. Bl. Rep. 1190;. Coop. Just. 606; 1 Chit. Pr. 872; 2 Atk. 194; Finch. 117; Prec. in Ch. 102; 2 Bro. P. C. 436; Fonbl. 151, 2, note; Chit. Contr. 836; 11 N. Hamp. Rep. 234.

LIQUIDATED. That which is made clear, certain, and manifest; as, liquidated damages, ascertained damages liquidated debt, an ascertained debt, as to amount. A debt is liquidated when it is certain what is due, and how much is due, cum certum est an et quantum debeatur; for although it may appear that something is due, if it does not also appear how much is due, the debt is not liquidated. An unliquidated claim is one which one of the parties to the contract cannot alone render certain. 5 M. R. 11; 1 N. S. 130; 6 N S. 715; 6 N. S. 10, 13 L. R. 275; 7 L. R. 134, 599. Such a claim cannot be set off. 2 Dall. 237; S. C. 1 Yeates' R. 571; 10 Serg. & Rawle, 14; see Poth. Ob. n. 628; Dig. 50, 17, 24; Id. 42, 1, 64; Id. 1, 45, 112; Id. 46, 5, 11; Code, 7, 47. Dom. Lois Civ. l. 4, t. 2, s. 2, n. 2; Arg. Inst. 1. 4, c. 7; 7 Toull. n. 369; 6 Duv. Dr. Civ. Fr. n. 304.

References in periodicals archive ?
If the de facto liquidated corporation is solvent, it is subject to tax on any gain to the extent the fair market value of its property exceeds its tax basis (Secs.
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.
Owners seeking consequential "damages in those situations when the contractor does complete the project, but not within the specified schedule, can and should protect their interests using a traditional liquidated damages clause.
A liquidated damages provision can be a useful tool, as it saves a great deal of time and money by eliminating the need to prove the actual amount of loss if a dispute or lawsuit arises.
The second and perhaps bigger problem was that the lease stated that in addition to the liquidated damage deposit, the tenant was also liable for all other damages including all unpaid rent and attorneys' fees.
Thus, the corporation should bc retained if RC > RS, liquidated if RS > RC.
The prospect of liquidated damages, which are intended to compensate the landlord for what the landlord and the tenant reasonably estimate would be the landlord's damages in the event of a specified tenant default, has the added benefit of giving the landlord additional leverage on a tenant to induce performance.
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.
If the liquidated partner makes a contribution prior to the liquidation and receives property in liquidation, Sec.
Owners seeking consequential damages in those situations when the contractor does complete the project, but not within the specified schedule, can and should protect their interests using a traditional liquidated damages clause.
He brought an age discrimination claim against his employer under ADEA, which gives victims various remedies including recovery of lost wages and payment of liquidated damages.