Liquidated Damages

(redirected from Liquidated damages clause)
Also found in: Dictionary, Financial, Encyclopedia.
Related to Liquidated damages clause: Penalty clause

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 ?
The claimant argued that the Court of Appeal had failed to notice that the parties had agreed in the contract that the liquidated damages clause would stand and be effective after termination, and that it did not simply apply during the execution of the contract.
Under English law, liquidated damages clauses may be considered a penalty, and therefore unenforceable, if:
Liquidated Damages clauses, by their very nature, obviate the need for a creditor to prove his damage; instead, a debtor who breaches his obligations will be liable, upon default, to pay the prescribed amount of compensation.
Our view was these price variation and liquidated damages clauses in Visy Recyclings, Cleanaways and Suezs previous contract terms were likely to be unfair within the meaning of the Australian Consumer Law, ACCC Deputy Chair Mick Keogh said.
It is also advisable to include both liquidated damages clauses and injunctive rights to provide additional defenses against an attack by a brand competitor looking to capitalize on the venue's visibility.
Certain provisions in these agreements (e.g., a "liquidated damages clause") quantify the economic remedy to the firm in the case of the breach of a nonsolicitation or nonservice provision--that is, a liquidated damages clause is an estimate, made by the parties at the time they enter into their agreement, of the extent of the injury that the firm will probably sustain as a result of a breach.
An operational liquidated damages clause within a contract allows the innocent party to levy damages for a proven breach at a rate expressed within the agreement.
Law on liquidated damages clause Q: In contracts can we incorporate liquidated damages clause legally?
A contract's price term is thus an implied-in-fact liquidated damages clause that establishes the liquidated amount as an alternative performance.
Include liquidated damages clause in license agreement.
L-l.2 ("A party to a contract may enforce a penalty clause or a liquidated damages clause to the extent that it is reasonable in all of the circumstances that the clause should be enforced" at s.
(44) A liquidated damages clause must be formulated to compensate the nonbreaching party, rather than to impose a penalty on the would-be breacher.