Liquidated damages
Liquidated damages, also referred to as "liquidated and ascertained damages" are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach.
An average of the likely costs which may be incurred in dealing with a breach may be used. Authority for the proposition that averaging is the appropriate approach may be taken from the case of English Hop Growers v Dering.
When damages are not predetermined/assessed in advance, then the amount recoverable is said to be 'at large'.
Common law
Generally, at common law, a liquidated damages clause will not be enforced if its purpose is to punish the party in breach rather than to compensate the injured party. One reason for this is that the enforcement of the term would, in effect, 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.For a liquidated damages clause to be upheld, two conditions must be met.
- The amount of the damages identified must roughly approximate the damages likely to fall upon the party seeking the benefit of the term.
- The damages must be sufficiently certain at the time the contract is made that such a clause will likely save both parties the future difficulty of estimating damages.
Contracts under common law require there to have been some attempt to create an equal or reasonably proportionate quota between the damages made and the actual loss. Parties must not lose sight of the principal compensation and they must keep the time of execution and the difficulty of the calculations in mind when drafting the contract.
;Example
Neal Townsend agrees to lease a store-front to Richard Smith, from which Richard intends to sell jewellery. If Townsend breaches the contract by refusing to lease the store-front at the appointed time, it will be difficult to determine what profits Smith will have lost because the success of newly created small businesses is highly uncertain. This, therefore, would be an appropriate circumstance for Smith to insist upon a liquidated damages clause in case Townsend fails to perform.
In the case of construction contracts, courts have occasionally refused to enforce liquidated damages provisions, choosing to follow the doctrine of concurrent delay when both parties have contributed to the overall delay of the project.
Contracts in the NEC3 family use the term 'low service damages' and generally include a Low Service Damages Schedule.
The definition and scope extended
In Australia, the definition of liquidated damages applies to the situations where upon the failure of a primary stipulation, imposes a detriment to the first party or a benefit to the second party by a secondary stipulation collateral to the primary stipulation.Uniform Commercial Code
In the United States, Section 2-718 of the Uniform Commercial Code provides that, in contracts for the sale of goods:This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states.
The law applied to bank and credit card charges
United Kingdom
UK bank and credit card customers were being charged as much as £39 for a single transaction taking them over their credit limit. Consumers argued these charges were well beyond the cost of sending a computerised letter.In 2007 the Office of Fair Trading investigated the charges being imposed on customers of credit card companies. In its report, the OFT claimed these charges were unlawful under UK law as they amounted to a penalty. It said it would be prepared to investigate any charge over £12, though this was not intended to indicate that £12 is a fair and acceptable charge. The OFT said it would be up to a court to determine such an amount based on the established legal precedent that the only recoverable cost would be actual costs incurred.
The credit card companies did not produce evidence of their actual costs to the OFT, instead insisting their charges are in line with clear policy and information provided to customers.
Receipt of liquidated damages and intimately linked with the purpose of the profit-making apparatus, is a capital receipt. The amount received by the assessee towards compensation for sterilization of the profit earning source is not in the ordinary course of business. Hence, it is a capital receipt in the hands of the assessee.
In 2009 the Supreme Court ruled that terms in bank account contracts were not capable of being penal, bar those applicable to NatWest Bank customers between 2001 and 2003. The court ruled that the charges were a charge for a service, and not a penalty for damages for breaching a contract term.
Australia
In 2012, the High Court of Australia allowed an appeal against findings of the Federal Court of Australia that 'exception fees' imposed by the ANZ Bank could not constitute an unenforceable penalty. The High Court found that fees were not incapable of being characterised as penalties merely because they were not charged upon breach of contract.Conversely, in 2014, the federal court described $35 late payment fees by ANZ Banking Group to customers who failed to make their monthly minimum credit card repayment as being “extravagant, exorbitant and unconscionable” and ordered for these fees to be reimbursed. ANZ appealed.
In 2015, the full court overturned Justice Gordon’s first instance judgment that credit card late payment fees charged by ANZ to its customers constituted penalties at law and equity. The decision otherwise upholds Justice Gordon's findings that honour, dishonour and overlimit fees charged by ANZ were not penalties, unconscionable or unfair. While the decision is very fact specific, it represented a major setback for other class actions based on penalties. Paciocco appealed to the High Court.
The last chapter of the bank fees saga took place in July 2016 where the High Court dismissed the appeal for leave and held that the full court was correct to characterise the loss provision costs, regulatory capital costs and collection costs as affecting the legitimate interests of the Bank. The Court asserted that the fact that those categories of costs could not be recovered in an action for damages did not alter that conclusion. Further, neither the fact that the late payment fees were not genuine pre-estimates of damage nor the fact that the amounts charged were disproportionate to the actual loss suffered by itself rendered the late payment fees penalties.
Other legal systems
Civil law
systems generally impose less severe restrictions on liquidated damages. For example, Article 1226 of the French Civil Code provides for clause pénale, a variant of liquidated damages which combines compensatory and coercive elements. Judges may adjust excessive contract penalties, but such clauses are not generally void as a matter of French law.Article 420-1 of the Civil Code of Japan provides an even firmer basis to uphold contractual penalties:
- The parties may agree on the amount of the liquidated damages with respect to the failure to perform the obligation. In such case, the court may not increase or decrease the amount thereof.
- The liquidated damages shall not preclude the demand for performance or the exercise of the cancellation right.
- Any penalty is presumed to constitute liquidated damages.