What Are Liquidated Damages?

Liquidated damages are a specific amount of money that parties to a contract agree will be paid if one party fails to meet their obligations. This sum is decided and included in the contract from the beginning.

When you sign a contract, both sides agree on certain responsibilities. If one side doesn't follow through, the other can suffer losses. Instead of figuring out the exact amount of these losses after something goes wrong, liquidated damages set a pre-determined amount beforehand.

What is the purpose of liquidated damages?

The main goal of liquidated damages is to provide certainty and avoid arguments.

If a contract is broken, it can be hard to work out exactly how much damage was done. By agreeing on a set amount beforehand, both parties know what to expect if something goes wrong.

In short, liquidated damages make it easier for both parties to understand the financial consequences of a breach and to avoid disputes over the cost of the damages.

What types of breaches are covered by liquidated damages clauses?

Liquidated damages clauses typically cover specific instances where one party does not fulfill their contractual obligations. The types of breaches that may be covered by liquidated damages clauses include:

Late delivery of goods or services
Failure to meet performance standards resulting in financial losses
Quality deficiencies
Non-payment
Cancellation or termination of the contract without proper justification

What’s the difference between liquidated damages clauses and penalty clauses?

Liquidated damages are a pre-determined sum of money agreed upon by the parties in a contract to compensate for potential breaches, while penalty clauses (sometimes called punitive clauses) impose a disproportionate or excessive amount of money on the breaching party.

While penalty clauses are generally unenforceable under English law, courts will typically uphold liquidated damages clauses if the agreed sum is a genuine pre-estimate of the potential loss that may result from a breach.

What are the benefits of liquidated damages?

Liquidated damages offer a clear and predictable outcome in case of a breach.

Instead of uncertain negotiations or costly litigation to determine the extent of damages, both parties already know the amount that will be paid if the contract is violated. This clarity helps to streamline the resolution process and assures both parties about the financial consequences of a breach.

What should be included in liquidated damages clauses?

Liquidated damages clauses should:

Clearly state the amount of liquidated damages and the circumstances under which they will apply.
Make sure that the sum specified is a genuine pre-estimate of the potential loss that may result from a breach
Use unambiguous language
Be reviewed by a commercial lawyer.

What is a genuine pre-estimate of potential loss and why is it important?

A pre-estimate of potential loss is the amount of the potential loss that may result from a breach of contract.

It’s important to ensure this specified sum in liquidated damages clauses is genuine as, if the amount is too high, it may be deemed unenforceable by the courts. On the other hand, if it is too low, it may not adequately compensate the non-breaching party for their losses.

Common pitfalls in drafting liquidated damages clauses

Some common mistakes to avoid when drafting liquidated damages clauses include:

Setting a disproportionately high amount that could be seen as punitive rather than compensatory.
Using vague language that may lead to disputes over interpretation.
Neglecting to review and update liquidated damages clauses to reflect changes in circumstances.
Failing to personalise the clause to the specific context of the contract.

Example of a liquidated damages clause

If the Contractor fails to complete the construction project by the agreed-upon deadline, the Contractor shall pay the Client liquidated damages of £1000 per day of delay, up to a maximum of 10% of the contract price, as a genuine pre-estimate of the Client's potential losses.

Disputes surrounding liquidated damages clauses often happen due to parties disputing the validity of the clause or disagreements over whether a breach has happened and if it falls within the scope of the liquidated damages clause.

How are disputes over liquidated damages resolved?

In the first instance, Parties may attempt to resolve disputes through negotiation, seeking to reach a mutually acceptable agreement without resorting to litigation.

If negotiation fails, parties may opt for mediation, where a neutral third party facilitates discussions.

If disputes cannot be resolved through negotiation or mediation, parties may resort to litigation, where courts will interpret the liquidated damages clause and determine its enforceability based on applicable legal principles.

Courts will consider whether the clause represents a genuine pre-estimate of damages, whether it is commercially justifiable, and whether it is proportionate to the breach. If the clause is found to be unenforceable as a penalty, courts may instead award damages based on actual losses incurred.

In what sectors are liquidated damages clauses commonly used?

Liquidated damages clauses are used in industries where timely performance is critical and delays can result in significant financial repercussions, including:

Construction
Technology and software development
Manufacturing
Transportation and logistics
Property

How are liquidated damages clauses used in the construction industry?

In the construction industry, liquidated damages clauses are commonly used to address delays in project completion.

Construction projects often have strict timelines, and any delay can result in significant financial losses for all parties involved. Therefore, construction contracts frequently include liquidated damages provisions specifying the amount the contractor will pay for each day of delay beyond the agreed-upon completion date.

These clauses help incentivise timely project completion and compensate clients for any losses incurred due to delays.

What are unliquidated damages?

Unliquidated damages refer to damages that have not been pre-determined or specified in advance within a contract.

Unlike liquidated damages, which are a fixed sum agreed upon by the parties to a contract to compensate for a potential breach, unliquidated damages are not predetermined and typically require assessment or determination by a court or arbitrator after a breach has occurred.

In cases where damages are unliquidated, the amount of compensation is determined based on the actual losses suffered by the non-breaching party as a result of the breach.

Unliquidated damages are commonly sought in legal proceedings when parties cannot agree on the amount of compensation owed for a breach of contract or other wrongful act. Courts or arbitrators assess the evidence presented and determine the appropriate amount of damages based on the circumstances of the case.

How can Lawhive help?

We strongly recommend seeking legal advice when drafting or reviewing any type of contract, including those with liquidated damages clauses.

Commercial solicitors can work with you to make sure any clauses are fair, enforceable, and tailored to the specific contract and circumstances to proactively avoid disputes or reduce the likelihood of costly litigation down the road.

At Lawhive, our experienced network of commercial lawyers is here to help with contract drafting, review, or any other legal matters.

For more information on contract law, breach of contract, or dispute resolution contact our Legal Assessment Specialists today and get a free, no-obligation quote for the services of a specialist lawyer.

What Are Liquidated Damages?

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