Liquidated damages
is a term use in the law of contracts to describe
a contractual term which establishes damages to
be paid to one party if the other party should
breach the contract. Under the common law, a
liquidated damages clause will not be enforced if
the purpose of the term is solely to punish a
breach of contract (in this case it is a penal
clause). This is because such a clause does not
allow the court to determine actual damages, and
its enforcement would therefore require an
equitable order of specific performance. However,
courts sitting in equity will seek to achieve a
fair result, and will not enforce a term that
will lead to the unjust enrichment of the
enforcing party.
In order for a liquidated damages clause to be
upheld, two conditions must be met. First, the
amount of the damages identified must roughly
approximate the damages likely to fall upon the
party seeking the benefit of the term. Second,
the damages must be sufficiently uncertain at the
time the contract is made that such a clause will
likely save both parties the future difficulty of
estimating damages.
For example, suppose Joey agrees to lease a
storefront to Monica, from which Monica intends
to sell jewelry. If Joey breaches the contract by
refusing to lease the storefront at the appointed
time, it will be difficult to determine what
profits Monica will have lost, because the
success of newly created small businesses is
highly uncertain. This, therefore, would be an
appropriate circumstance for Monica to insist
upon a liquidated damages clause in case Joey
does indeed fail to perform.
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