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Foundational Principles of Contract Law$
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Melvin A. Eisenberg

Print publication date: 2018

Print ISBN-13: 9780199731404

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780199731404.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 22 November 2019

Liquidated Damages

Liquidated Damages

Chapter:
(p.283) Twenty-Three Liquidated Damages
Source:
Foundational Principles of Contract Law
Author(s):

Melvin A. Eisenberg

Publisher:
Oxford University Press
DOI:10.1093/oso/9780199731404.003.0023

Chapter 23 considers contract provisions that liquidate—fix—damages for breach. Such provisions are reviewed with special scrutiny. The most general formulation of the special-scrutiny rule is that liquidated damages provisions are enforceable only if actual damages are difficult to estimate and the liquidated amount is a reasonable estimate of the actual loss from breach. It is sometimes incorrectly argued that the special-scrutiny rule rests on the premise that liquidated-damages provisions lend themselves to blameworthy exploitation and one-sidedness, that this premise is incorrect, and thus the special-scrutiny rule is incorrect. The true justification of the special-scrutiny rule, however,is that liquidated-damages provisions are systematically likely to reflect the limits of cognition.

Keywords:   liquidated damages, special scrutiny, damage estimating difficulties, loss from breach, liquidated-damages provisions

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