Finally, the Court took into account the fact that the clauses encouraged the seller to continue to ignore the infringement committed by the buyer or to stand still against him for as long as possible, while the daily penalties accumulated. A penalty clause is, in simple terms, a clause in a contract that states that if a party breaches an obligation, that infringing party must pay (or otherwise remedy) a pre-agreed sum of money. Since penalties are almost always financial in nature, we will only deal with financial penalties in this blog. To be a punishment, the amount of money must be excessive and disproportionate to the actual loss expected of the innocent party (due to the violation). Instead of simply compensating the innocent party, the penalty clause punishes the injured party. Don`t throw Dunlop away. The tests in the Dunlop case are still good law and the Supreme Court has found that these tests are a useful tool for deciding whether “unscrupulous” or “extravagant” can be applied to simple damages clauses in model contracts. There are a number of things you need to do to avoid unenforceable penalties, including: Essentially, the court concluded that the seller would not suffer any harm. In contrast, the buyer suffered a loss of 75% of the country`s purchase price ($787,500), daily penalties of $270,000, and losses of more than $150,000 related to the design of the two homes, building permit fees, and legal fees for closing the property. However, there are narrow circumstances in which the parties may agree on damages before a breach. The law calls this agreed provision “lump sum damages.” Here, we discuss the narrow path you need to take to include an enforceable lump-sum indemnification clause in your contracts, and the pitfalls of their alter-egos: penalty clauses. A whole set of laws has been designed to regulate penalty clauses, so you should be careful when creating such clauses and including them in your contracts. You should avoid looking at punitive clauses separately, as the other clauses in a contract relating to breaches, damages, limitation of liability, and termination are all relevant and closely related.
From time to time, a company may be involved in a contractual dispute aimed at obtaining a heavy fine. These disputes relate to punitive clauses, and there are certain circumstances in which these sanctions may or may not be enforceable. Delays in business transactions can often raise questions about contractual penalties and penalties. Here at Law 365, we`ve found that there is some confusion when people ask us questions about them, so we`ve created this blog to clarify the differences. The issue before the court was whether the redemption and daily penalty clauses of the option contract constituted unenforceable penalties or forfeiture. The Court applied the following two-part test (adopted by the Ontario Court of Appeal in Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282) to determine whether the clauses contained in the option agreement were unscrupulous: Do not take lightly the difference between lump sum damages and a penalty. In narrow business contexts, a lump-sum compensation clause is both necessary and appropriate. However, to get it right in these extremely tight circumstances, you need qualified and effective legal counsel. BrewerLong`s lawyers have been advising business clients on their contracts for decades.
Let us help you create the ideal lump sum indemnification clause for your business contracts. Contact us today to see what we can do for your business. If you are not sure if a particular clause is a penalty clause or if you have any particular concerns about your contracts, please do not hesitate to contact us. An option agreement attached to the purchase and sale agreement provided that the seller (a sophisticated real estate developer) would have the right to purchase the buyer`s building land at 25% of the purchase price (i.e. Redeem $262,500 of the $1,050,000 paid) and receive a penalty of $1,000 per day (which reached $270,000) from the buyer for non-compliance with the construction schedule. The seller has proven that these clauses are necessary to send a message to the market that there will be consequences in case of violation of the terms of the contract and non-compliance with the development requirements. While the Court held that there must be consequences as a result of the buyer`s breach of these conditions, it also held that a message must be sent to the developers, that the conditions imposed on their buyers must be reasonable, that their conduct must be fair in the face of a breach, and that the consequences arising from such contracts, must be proportionate and fair. You have the right to rely on these executed contracts, and the ability to rely on the contracts allows you to allocate the company`s resources responsibly and create future growth plans. Under the Conventional Sanctions Act of 1962, penalty clauses are enforceable by law, but the court has the power to reduce compensation. The court is required to compare the penalty with the actual damage suffered and to determine whether or not the penalty is disproportionate to the damage suffered. Therefore, you must ensure that the penalty mentioned in the clause is not scandalous.
In addition, you can only claim a penalty or damages for the same act, but not both. Ashley helps business owners and executives protect their businesses and intellectual property. Their goal is to minimize risk as businesses grow. Ashley regularly advises executives on property contracts, intellectual property (protection, management and capitalization), regulatory compliance, real estate and commercial contracts. Ashley enjoys helping new and growing businesses with careful planning and problem prevention. One car park belonged to the British Airways pension fund, which signed a contract with ParkingEye to act on their behalf. Users were allowed to park for free until 2 a.m. Any time spent beyond the 2-hour time limit may incur a fee of £85.00. The facts of ParkingEye Limited v. Beavis were that Mr. Beavis had parked his car in a parking lot run by ParkingEye for more than two hours.
The clearly advertised parking fee for exceeding the two-hour limit was £85. M. Beavis challenged the fine, saying it was an unenforceable fine clause. In both cases, the Supreme Court concluded that the clauses were not sanctions. However, if your business partner violates the contract, it will disrupt your plans and you will suffer harm. Often, disruption and damage are extremely annoying, and your first instinct may be to find a way to punish the suffering party.