Liquidating losses


07-Dec-2020 13:50

liquidating losses-57

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Because such damages can be difficult to prove, EPC contracts for power projects commonly provide for liquidated damages, which are a fixed sum contracting parties agree will be payable as damages for a specified breach.Negotiating for such damages can benefit owners because the damages resulting from a breach can be difficult to calculate.Take Precautions to Prevent a Finding that Liquidated Damages Are a Penalty Liquidated damages are intended to compensate the injured party for its losses, not to penalize the breaching party.Thus, as a general rule, most courts require that liquidated damages be a reasonable pre-estimate of the anticipated losses at the time of contracting.Some courts, however, also consider the actual losses sustained to determine whether liquidated damages are reasonable.And a few jurisdictions (such as Connecticut and Rhode Island) will not enforce liquidated damages clauses if the injured party cannot prove it has sustained at least some actual harm or damage, regardless of whether the liquidated damages were reasonable when viewed prospectively.If a contractor will not agree to an amount of liquidated damages the owner believes would cover its actual, direct damages, it may be more advantageous to seek actual damages, as long as they could be proven without too much difficulty.

As long as the clause satisfies the operative requirements for enforceability, a contract may provide for liquidated damages if a contractor fails to timely complete work in accordance with specified performance criteria.

As the Colorado Supreme Court explained, parties have the freedom to contract for alternative remedies, as long as they do not pursue both.



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