Liquidated Damages


Also found in: Dictionary, Thesaurus, Medical, Financial, Acronyms, Encyclopedia, Wikipedia.
Related to Liquidated Damages: Unliquidated damages

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 ?
On merits, the appellant was rightly held as not entitled to claim any additional amount of liquidated damages in absence of any exact claim towards such entitlement put forth by her before the Tribunal.
As previously mentioned, it is widely accepted under common law and western jurisdictions, which are commonly employed in maritime contracts, that demurrage, in the context of a voyage charterparty, is a provision for liquidated damages. This may be considered a 'maritime custom' as mentioned in Article 8(2)(a).
While some other areas of the law allow for arbitrarily assigning dollar figures to unquantifiable events, automobile accidents, for example, liquidated damages doctrine insists that there be some nexus between the agreed upon damages and the foreseeable loss.
Payment of liquidated damages on late settlement if claims.
Liquidated Damages. Parties who prefer to know up front with a relative degree of certainty how much they may be paid or will be expected to pay in the event of a breach may want to consider a liquidated-damages provision.
Most commonly we associate liquidated damages with delay.
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).
Section 361 recites: "Specific performance or an injunction may be granted to enforce a duty even though there is a provision for liquidated damages for breach of that duty." (45) The first comment to this section adds that "[m]erely by providing for liquidated damages, the parties are not taken to have fixed a price to be paid for the privilege not to perform," (46) so that "[s]uch a provision does not, therefore, preclude the granting of specific performance or an injunction if that relief would otherwise be granted." (47) If liquidated damages are substitutionary, as the Restatement apparently suggests, then the expectation remedy should be substitutionary as well.
In case of intentional default by the contractors/ suppliers Liquidated Damages (LD) are imposed on the contractors/suppliers.
EOS and NMT have worked closely together to resolve MRO telescope completion issues, but the potential for liquidated damages to be applied against EOS by NMT had given rise to a specific note (Note 27(a)) relating to a contingent liability in EOS audited financial statements as at 31 December 2009.
WHERE the parties to a contract agree that, in the event of a breach, the contract breaker will pay the other a specified sum of money, the sum fixed may be classified by the courts either as a penalty (which is irrecoverable) or as liquidated damages (which are recoverable).
Liquidated damages are a means of making the sanction for breach explicit within a contract.