Liquidated Damages

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Liquidated Damages

Monetary compensation for a loss, detriment, or injury to a person or a person's rights or property, awarded by a court judgment or by a contract stipulation regarding breach of contract.

Generally, contracts that involve the exchange of money or the promise of performance have a liquidated damages stipulation. The purpose of this stipulation is to establish a predetermined sum that must be paid if a party fails to perform as promised.

Damages can be liquidated in a contract only if (1) the injury is either "uncertain" or "difficult to quantify"; (2) the amount is reasonable and considers the actual or anticipated harm caused by the contract breach, the difficulty of proving the loss, and the difficulty of finding another, adequate remedy; and (3) the damages are structured to function as damages, not as a penalty. If these criteria are not met, a liquidated damages clause will be void.

The American Law Reports annotation on liquidated damages states, "Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in light of the anticipated or actual harm caused by the breach. … A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty" (12 A.L.R. 4th 891, 899).

A penalty is a sum that is disproportionate to the actual harm. It serves as a punishment or as a deterrent against the breach of a contract. Penalties are granted when it is found that the stipulations of a contract have not been met. For example, a builder who does not meet his or her schedule may have to pay a penalty. Liquidated damages, on the other hand, are an amount estimated to equal the extent of injury that may occur if the contract is breached. These damages are determined when a contract is drawn up, and serve as protection for both parties that have entered the contract, whether they are a buyer and a seller, an employer and an employee or other similar parties.The principle of requiring payments to represent damages rather than penalties goes back to the Equity courts, where its purpose was to protect parties from making Unconscionable bargains or overreaching their boundaries. Today section 2-718(1) of the Uniform Commercial Code deals with the difference between a valid liquidated damages clause and an invalid penalty clause.

Liquidated damages clauses possess several contractual advantages. First, they establish some predictability involving costs, so that parties can balance the cost of anticipated performance against the cost of a breach. In this way liquidated damages serve as a source of limited insurance for both parties. Another contractual advantage of liquidated damages clauses is that the parties each have the opportunity to settle on a sum that is mutually agreeable, rather than leaving that decision up to the courts and adding the costs of time and legal fees.

Liquidated damages clauses are commonly used in real estate contracts. For buyers, liquidated damage clauses limit their loss if they default. For sellers, they provide a preset amount, usually the buyer's deposit money, in a timely manner if the buyer defaults.

The use and enforcement of liquidated damages clauses have changed over the years. For example, cases such as Colonial at Lynnfield v. Sloan, 870 F.2d 761 (1st Cir. 1989), and Shapiro v. Grinspoon, 27 Mass. App. Ct. 596, 541 N. E. 2d 359, 1989), have granted courts permission to compare the amount set forth in the liquidated damages provision against the actual damages caused by a breach of contract. These "second-look" rulings have led several courts to honor the liquidated damages clauses only if they are equal to, or almost equal to, the actual damages.

Further readings

Brizzee, David. 1991. "Liquidated Damages and the Penalty Rule: A Reassessment." Brigham Young University Law Review 1991.

Calamari, John D., and Joseph M. Perillo. 1987. Contracts. 3d ed. St. Paul, Minn.: West.

Daniszewski, Robert M., and Jeffrey W. Sacks. 1990. "One View Too Many." Boston Bar Journal 34 (April).

liquidated damages

n. an amount of money agreed upon by both parties to a contract which one will pay to the other upon breaching (breaking or backing out of) the agreement or if a lawsuit arises due to the breach. Sometimes the liquidated damages are the amount of a deposit or a down payment, or are based on a formula (such as 10% of the contract amount). The non-defaulting party may obtain a judgment for the amount of liquidated damages, often based on a stipulation (clear statement) contained in the contract, unless the party who has breached the contract can make a strong showing that the amount of liquidated damages was so "unconscionable" (far too high under the circumstances) that it appears there was fraud, misunderstanding or basic unfairness. (See: damages, contract)

LIQUIDATED DAMAGES. By this term is understood the fixed amount which a party to an agreement promises to pay to the other, in case he shall not fulfill some primary or principal engagement into which he has entered by the same agreement it differs from a penalty. (q.v.) Vide Damages liquidated.
     2. The damages will be considered as liquidated in the following cases: 1. When the damages are uncertain, and not capable of being ascertained by any satisfactory or known rule; whether the uncertainty lies in the nature of the subject itself, or in the particular circumstances of the case. 2 T. R. 32 1 Ale. & N. 389; 2 Burr. 2225 10 Ves. 429; 7 Cowen, 307; 4 Wend. 468. 2. When, from the nature of the case, and the tenor of the agreement, it is clear, that the damages have been the subject of actual and fair calculation and adjustment between the parties. 2 Greenl. Ev. Sec. 259; 2 Story, Eq. Sec. 1318; 3 C. & P. 240; 10 Mass. 450, 462; 6 Bro. P. C. 436; 3 Taunt. 473; 7 John. 72; 4 Mass. 433; 3 Conn. 58; 1 Bouv. Inst. n. 655, 765.

References in periodicals archive ?
2008].) But if the amount of actual damages that would probably be suffered by the firm is readily ascertainable when the contract is made, or the amount fixed as liquidated damages is conspicuously disproportionate to the foreseeable loss, the liquidated damages clause will not be enforced; instead, it will be characterized as a penalty (Bates and Central Irrigation Supply).
This language raises the question whether Section 2-719(1)(b)'s requirement of an express exclusivity agreement for remedy limitations also applies to the liquidated damage clauses that Section 2-718 regulates.
I recommend replacing the current system of punitive relief under Title VII with an approach similar to the damages provisions under the ADEA and FLSA, which currently provide for liquidated damages. (229) Under the liquidated damages scheme, an employer could be liable for "double damages" of the actual damages suffered by the plaintiff.
penalties, and so have found that particular liquidated damage
The Arkansas general rule pertaining to liquidated damages is that an agreement for liquidated damages in advance of the breach of contract will be enforced if the amount is
The plaintiff sought liquidated damages in the amount of $109,029.04 from the defendant.
The COA recommended to the NIA to direct its Legal Department and Internal Audit Services to conduct investigations to determine persons responsible for the non-imposition of liquidated damages to erring contractors and non-termination of contracts with huge negative slippage.
Auditors demanded that the liquidated damages from defaulting suppliers be enforced.
If there is extension required by the contractor, the imposition of the liquidated damages may be considered', the report recommended.
Plaintiff seeks recovery of $29,450.19 in back wages and the same in liquidated damages, as well as $11,197.50 in attorney's fees.
Employees cannot only claim their owed back wages, they can also claim liquidated damages in the same amount, and court costs and attorney's fees.
" A document uploaded on the official website of the Punjab government states, "the damages arising out of delay in the project include rate of liquidated damages at the rate of 0.2 per cent (minimum) to 10 per cent (maximum) of the total contract price of the project's civil work, local contractors' idling charges etc.