Punitive Damages, Liquidated Damages, and Clauses Penales in Contract Actions

Punitive Damages, Liquidated Damages, and Clauses Penales in Contract Actions
Author: Charles R. Calleros
Publisher:
Total Pages: 53
Release: 2016
Genre:
ISBN:

Although American common law allows punitive damages for reckless or intentional torts, it will neither allow a jury to assess punitive damages for breach of contract nor permit enforcement of a contractual damages clause that is deemed to be punitive. This approach is rooted in an early Chancery practice of granting equitable relief from oppressive penal bonds and has been more recently justified as a means of facilitating efficient breach. Economic efficiency, however, can be accomplished even if punitive damages could be assessed for intentional breach, because the parties would have an incentive to negotiate a release from the first contract to enable both to share in the surplus offered by an intervening contractual opportunity. Moreover, negotiation of an enforceable penalty clause would allow some parties to maximize their utility by exchanging a signal of assurance of performance for a premium fee. Additionally, the French experience invites a fresh look, because - although it generally disallows punitive damages of a judicial origin for any civil wrong, tort or breach of contract - it honors freedom of contract and the autonomy of the parties by enforcing a contractual penalty clause (although the court may reduce an excessive contractual penalty). Taking a cue from the French approach, American courts and legislatures should reconsider their refusal to sanction freely negotiated penalty clauses and enforce them to the extent that they permit the parties to maximize their collective utility.

Liquidated Damages and Penalty Clauses

Liquidated Damages and Penalty Clauses
Author: Roger Halson
Publisher:
Total Pages: 212
Release: 2018
Genre: Clauses (Law)
ISBN: 9780191859694

This book focuses on liquidated damages and penalty clauses, and analyses the common law jurisdiction to control stipulated damages clauses, as well as the distinction between enforceable liquidated damages clauses and unenforceable penalty clauses. The first part of the book examines the historical origin of the control of these clauses; the second part describes the current control of such clauses and their legal effect, while the third part of the book critically examines the various rationales that have been proposed to justify their regulation. The final part of the book describes analogous provisions and how to avoid drafting contractual clauses that are rendered unenforceable by the penalty rule. The book examines approaches in several common law jurisdictions in addition to England and Wales, including the United States, Australia, New Zealand, and Canada, and brings together principles developed in distinct commercial law contexts (such as shipping contracts) to enable comparison between particular contractual settings.

Agreed Sums Payable Upon Breach of an Obligation

Agreed Sums Payable Upon Breach of an Obligation
Author: Pascal Hachem
Publisher:
Total Pages: 0
Release: 2011
Genre: Liquidated damages
ISBN: 9789490947040

Unique in its breadth, this book undertakes a comparative analysis of the ways in which legal systems in all regions of the world deal with agreed sums payable upon breach of an obligation. The book shows divergences and convergences and indicates trends as to the future development of the law. It also deals with the treatment of agreed sums under the 1980 UN Convention on Contracts for the International Sale of Goods (CISG), offering the first comprehensive solution to this issue based on comparative analysis. For practitioners as well as researchers, this book is a valuable source of information and offers suggestions for solutions to current and future issues.

Contract Enforcement

Contract Enforcement
Author: Edward Yorio
Publisher: Wolters Kluwer
Total Pages: 832
Release: 2011-01-01
Genre: Law
ISBN: 145480114X

Rev. ed. of: Contract enforcement / Edward Yorio. c1989.

International Commercial Agreements

International Commercial Agreements
Author: William Fox
Publisher: Kluwer Law International B.V.
Total Pages: 482
Release: 2023-12-05
Genre: Law
ISBN: 9403536934

Precise planning, drafting and vigorous negotiation lie at the heart of every international commercial agreement. But as the international business community moves toward the third decade of the twenty-first century, a large amount of the detail of these agreements has migrated to the Internet and has become part of electronic commerce. This incomparable one-volume work, now in its seventh edition, begins by discussing and analyzing all the basic components of international contracts regardless of whether the contracting parties are interacting face-to-face or dealing electronically at some distance from each other. The work stands alone among contract drafting guides and has proven its enduring worth. Using an established and highly practical format, the book offers precise information and analysis of a wide variety of issues and forms of agreement, as well as the various forms of international commercial dispute resolution. The seventh edition includes new and updated material on a large number of issues and concepts, such as: new developments and technical progress in electronic commerce; the use of concepts of standardization, i.e., the work of the International Organization for Standardization as a contract drafting tool; new developments in artificial intelligence in contract drafting; the use of cryptocurrencies as a payment device; expedited arbitration, early neutral evaluation and digital procedures for dispute resolution; online dispute resolution, including the phenomenon of the “robot arbitrator”; and foreign direct investment, investment law and investor-state dispute resolution. Each chapter provides numerous references to additional sources, including websites, journal articles, and texts. Materials from and citations to appropriate literature and languages other than English are included. Recognizing that business executives entering into an international commercial transaction are mainly interested in drafting and negotiating an agreement that satisfies all of the parties and that will be performed as promised, this superb guide will measurably assist any lawyer or business executive in planning and implementing contracts and resolving disputes even when that person is not interested in a full-blown understanding of the entire landscape of international contracts. Business executives who are not lawyers will find that this book gives them the understanding and perspective necessary to work effectively with legal experts.

Commercial Remedies: Resolving Controversies

Commercial Remedies: Resolving Controversies
Author: Graham Virgo
Publisher: Cambridge University Press
Total Pages: 625
Release: 2017-08-24
Genre: Law
ISBN: 1316764559

The law of commercial remedies raises a number of important doctrinal, theoretical and practical controversies which deserve sustained and rigorous examination. This volume explores such controversies and suggests solutions, which is essential to ensure that the law is defensible, clear and just. With contributions from twenty-three leading academic and practitioner experts, this book addresses significant issues in the law which, taken together, range across the entire remedial jurisdiction as it applies to commercial disputes. The book primarily focuses on the resolution of controversies in the English law of commercial remedies, but recent developments elsewhere are also considered, especially in other common law jurisdictions. The result provides remarkably comprehensive coverage of the field which will be of relevance to academics, students, judges and practitioners.