Liquidating losses


27-Sep-2020 18:01

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.A liquidated damages clause allows the parties to avoid burdensome and potentially costly litigation regarding the amount of actual damages and provides certainty in the event of a breach.Before agreeing to liquidated damages, however, owners should consider whether they would be better off seeking to recover their direct damages in the event of a breach.Owners should consider the following issues when contracting for liquidated damages: Ensure Liquidated Damages Will Cover Anticipated Losses As noted above, an owner should carefully estimate its potential losses in the event of a breach and ensure the liquidated damages will cover these losses.At a minimum, liquidated damages should cover the cost of carrying the contract for the delayed period, including additional overhead, financing costs, and personnel costs.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.

And as noted above, some jurisdictions only require that liquidated damages be reasonable prospectively, while other courts also consider the actual losses sustained.If an owner reasonably anticipates at the time of contracting that its losses will continue until final completion, or that it will not be able to operate and earn revenue until that time, it should attempt to provide for liquidated damages through that date.Know When Damages Are Recoverable and What Law Applies Owners should be mindful that they may not be able to recover liquidated damages for any period of concurrent delay, which occurs when the owner and contractor both cause a delay that impacts the same activity, each of which standing alone would have impacted the completion date.These courts have stricken optional clauses and limited the plaintiff’s recovery to actual damages on the grounds that such clauses would penalize the breaching party and defeat the purpose of stipulating to liquidated damages.

Notably, however, some jurisdictions have upheld such optional clauses, including Colorado, Idaho, and Washington.Some courts, however, also consider the actual losses sustained to determine whether liquidated damages are reasonable.



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