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Use of Terms and Conditions in Purchase Agreements: Liquidated Damages

 

When setting liquidated damages, one size does not fit all.

The benefits of a liquidated damages provision designed to spell out the damages available in the event of a breach, promoting certainty and eliminating the litigation expense of proving damages, are obvious. But these provisions often are not enforced. Clients often want to impose liquidated damages not to provide a reasonable estimate of possible damages but to motivate the other party to perform. There is nothing wrong with using liquidated damages to motivate the other party to perform, but the amount of liquidated damages can’t be plucked out of the air, it must bear a reasonable nexus to the actual harm, anticipated or actual. When drafters assign as liquidated damages a single dollar amount for all possible breaches, even when they vary in severity, the clause might be held unenforceable. This white paper reviews the two prong test when determining liquidated damages.

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Use of Terms and Conditions in Purchase Agreements: Liquidated Damages

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Use of Terms and Conditions in Purchase Agreements: Liquidated Damages

Faculty

Timothy Murray

Timothy Murray

Murray, Hogue & Lannis

  • Partner in the law firm Murray, Hogue & Lannis, Pittsburgh, PA
  • Practice emphasizes contract law
  • Conducts regular seminars on the law of contracts
  • Author volume 1 of Corbin on Contracts (revised edition, 2018), Co-author of Corbin on Contracts Desk Edition and the biannual supplements to Corbin on Contracts
  • Member of the Pennsylvania Bar
  • J.D. degree, University of Pittsburgh
  • Can be contacted at [email protected]
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Use of Terms and Conditions in Purchase Agreements: Liquidated Damages

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