liquidated damages

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liquidated damages

A sum specified in a contract whereby damages in the event of breach are to be determined. In a construction contract, liquidated damages usually are specified as a fixed sum per day for failure to complete the work, 1 within a specified time. If set at a level consistent with a reasonable forecast of actual harm to the owner, liquidated damage clauses will be upheld and will preclude use of standards for computation of damages that would otherwise be imposed by law. If the amount prescribed for liquidated damages is unreasonably high, the provision will be denominated an illegal “penalty” by the courts and held invalid; in such case, damages will be determined pursuant to otherwise applicable rules of law.

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The distinction between liquidated damages and unliquidated damages is closely linked to this "penalty theory" of prejudgment interest.

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For example, the entry of a judgment on unliquidated damages following a default judgment has been held to be fundamental error where the defaulting party had no notice of the trial on damages (22) or the complaint upon which the default judgment was entered did not seek the damages thereafter awarded.

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It would seem unjust that the question whether a person is entitled to have the company restored to the register for the purpose of recovering a judgment against them should be determined by whether their claim against the company is for a liquidated sum - in which case they would unarguably be a 'creditor' - or takes the form of a claim for unliquidated damages.

Relying in part on successful patent infringement suit against New York co-conspirator in Wisconsin federal court, plaintiff persuaded Irish Supreme Court to restore Irish co- conspirator to list of active Irish companies in aid of plaintiff's damage suit in Bermuda courts

Well before the middle of this century, courts had repudiated the ancient common law prohibition of prejudgment interest on unliquidated damages awarded for injury to property or business.