The Court of Appeal rejected this argument and highlighted that the court was not allowed to apply
liquidated damages clauses after the termination of a contract.
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).
Although it is common to hear courts admit that (as indicated in Section 361) courts may award specific performance despite an express transfer term where the transfer is "intended to be mere security for the performance of the principle [sic] obligation," courts nevertheless insist that "where the sum specified may be substituted for the performance of the act at the election of the person by whom the money is to be paid, or the act done, equity will deny specific performance." (51) Courts following this reasoning deny specific performance of the trade terms to a promisee whose promisor complied with a
liquidated damages clause. (52) As Pomeroy's treatise on Specific Performance of Contracts observes:
(53.) Goetz & Scott, supra note 4, at 578 ("In the absence of evidence of unfairness or other bargaining abnormalities, efficiency would be maximized by the enforcement of the agreed allocation of risks embodied in a
liquidated damages clause.").
[check] Check for and calculate the expected payout from a reimbursement or
liquidated damages clause. In noncompete agreements with accounting firms, courts tend to favor an objective formula that is similar to the price a third party would pay to purchase the book of business.
a
liquidated damages clause, but this was reversed at the Court of
(7) The contract contained a
liquidated damages clause providing that if the contractor failed to complete the project on time, then the government would be entitled to damages in the amount of either $4,351 or $200 per day (depending up the line item number) for each day of delay.
capture some of these first-order harms in a
liquidated damages clause.
A well-drafted
liquidated damages clause can provide an employer with an added layer of protection in fighting to protect its customer base.
Florida courts have uniformly held that "the Valued policy law is founded upon the theory of 'calculated risk,' while the pro rata insurance clauses are based upon the theory of "indemnity." (16) For this reason, the statute operates like a
liquidated damages clause rather than as an indemnity contract.
Even with a
liquidated damages clause in place, a claimant will still need to have experts examine complicated causation issues, such as interferences and concurrent delays, to determine how many days of liquidated damages should be awarded.
One way we have suggested to customers to get quality contractors is to include a
liquidated damages clause of at least $2,500 per day in the contract, or something similar.
