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Liquidated Damages

Pre-determined damages.

A pre-determined or pre-estimated sum included in a contract to set the amount of compensatory payment (damages) to be paid to the non-breaching party by whichever party to the contract breached his/her obligation(s).

When a person does not or cannot perform the obligations agreed to in a contract to which they are privy (i.e. breaches a contract), they are exposed to liability in the form of a specific performance order against them or, much more likely, an order for damages; so that the other party to the contract can be compensated for the breach of contract. A court is always in a difficult position when called upon to determine what the amount of those damages ought to be; the plaintiff asking for too much and the defendant too little.

A liquidated damages clause pre-determines the amount so avoids the necessity of leaving this to the discretion and judgment of a Court and also allows the party contemplating breach to properly make a cost-benefit analysis of the cost of that breach.


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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.

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