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6.Rule against penalties
Parties to commercial contracts often include “liquidated damages” clauses into their…
Contractual terms that stipulate for payment in the event of breach of contract,…
Until recently, the test for penalty clauses was that established by the House of…
In light of Lord Dunedin’s judgment, in determining whether a term is a liquidated…
•A term will likely be deemed a penalty if the sum payable is extravagant and unconscionable…
•A term will likely be deemed a penalty if the breach consists only in not paying…
However, the question fell for reconsideration by the UK’s highest court once more…
In the case between Cavendish Square Holding and Makdessi, Cavendish Square Holding…
In the other case, that between ParkingEye Ltd and Beavis, Beavis argued that an…
The UK Supreme Court’s judgment in Cavendish v Makdessi is of critical importance…
“The correct test for a penalty is whether the provision in question is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”
The following are the key take-aways from the UK Supreme Court’s judgment:…
•The case significantly redefined the penalty clause doctrine by emphasizing legitimate…
•A clause will not be considered penalty if it protects a legitimate business interest…
•A distinction was made between primary and secondary obligations. A primary obligation…
By way of example:…
•an agreement which dictated that upon default all related loans would become payable…
•the landlord’s right to terminate a side letter to permit it to request rent at…
•a 400% increase in interest rate payable in the event of default was deemed penal.
b.Mental distress
F.Equitable remedies
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