DAMAGES, LIQUIDATED, contracts. When the parties to a contract stipulate for
the payment of a certain sum, as a satisfaction fixed and agreed upon by
them, for the not doing of certain things particularly mentioned in the
agreement, the sum so fixed upon is called liquidated damages. (q.v.) It
differ from a penalty, because the latter is a forfeiture from which the
defaulting party can be relieved. An agreement for liquidated damages can
only be when there is an engagement for the performance of certain acts, the
not doing of which would be an injury to one of the parties; or to guard
against the performance of acts which, if done, would also be injurious. In
such cases an estimate of the damages may be made by a jury, or by a
previous agreement between the parties, who may foresee the consequences of
a breach of the engagement, and stipulate accordingly. 1 H. Bl. 232; and
vide 2 Bos. & Pul. 335, 350-355; 2 Bro. P. C. 431; 4 Burr, 2225; 2 T. R. 32.
The civil law appears to agree with these principles. Inst. 3, 16, 7; Toull.
liv. 3, n. 809; Civil Code of Louis. art. 1928, n. 5; Code Civil, 1152,
1153.
2. It is to be observed, that the sum fixed upon will be considered as
liquidated damages, or a penalty, according to the intent of the parties,
and the more use of the words "penalty," &c "forfeiture," or "liquidated
damages," will not be regarded is at all decisive of the question, if the
instrument discloses, upon the whole, a different intent. 2 Story, Eq. Sec.
1318; 6 B.& C. 224; 6 Bing. 141; 6 Iredell, 186; 3 Shepl. 273; 2 Ala. 425;
8 Misso. 467.
3. Rules have been adopted to ascertain whether such sum so agreed upon
shall be considered a penalty or liquidated damages, which will be here
enumerated by considering, first, those cases where it has been considered
as a penalty and, secondly, where it has been considered as liquidated
damages.
4.-1. It has been treated as penalty, 1st. where the parties in the
agreement have expressly declared the sum intended as a forfeiture or a
penalty, and no other intent can be collected from the instrument. 2 B. & P,
340, 350, 630; 1 McMullan, 106; 2 Ala. 425; 5 Metc. 61; 1 H. Bl. 227; 1
Campb. 78; 7 Wheat. 14; 1 Pick. 451; 4 Pick. 179; 3 Johns. Cas. 297. 2d.
Where it is doubtful whether it was intended as a penalty or not, and a
certain debt or damages, less than the penalty, is made payable on the face
of the instrument. 3 C. & P. 240; 6 Humph. 186. 3d. Where the agreement was
made, evidently, for the attainment of another object, to which the sum
specified is wholly collateral. 11 Mass. 76; 15 Mass. 488; 1 Bro. C. C. 418.
4th. Where the agreement contains several matters, of different degrees of
importance, and yet the sum named is payable for the breach of any, even the
least. 6 Bing. 141; 5 Bing. N. C. 390; 7 Scott, 364; sed vide, 7 John. 72;
15 John. 200. 5th. Where the contract is not under seal, and the damages are
capable of being certainly known and estimated. 2 B. & Al. 704; 6 B. & C.
216; 1 M. & Malk. 41; 4 Dall. 150; 5 Cowen, 144.
5.-2. The sum agreed upon has been considered as liquidated damages,
1st. Where the damages are uncertain, and are not capable of being
ascertained by any satisfactory and known rule. 2 T. R. 32; 1 Alc. & Nap.
389; 2 Burr, 2225; 10 Ves. 429; 3 M. & W. 545; 8 Mass. 223; 3 C. & P. 240; 7
Cowen 307; 4 Wend. 468. 2d. Where, from the tenor of the agreement, or from
the nature of the case, it appears that the parties have ascertained the
amount of damages by fair calculation and adjustment. 2 Story, Eq. Juris.
Sec. 1318; 10 Mass. 459; 7 John. 72; 15 John. 200; 1 Bing. 302; 7 Conn. 291;
13 Wend. 507; 2 Greenl. Ev. Sec. 259; 11 N. H. Rep. 234; 6 Blackf. 206; 26
Wend. 630; 17 Wend. 447; 22 Wend. 201; 7 Metc. 583; 2 Ala. 425; 2 Shepl.
250.
Vide, generally, 7 Vin. Ab. 247; 16 Vin. Ab. 58; 2 W. Bl. Rep. 1190;.
Coop. Just. 606; 1 Chit. Pr. 872; 2 Atk. 194; Finch. 117; Prec. in Ch. 102;
2 Bro. P. C. 436; Fonbl. 151, 2, note; Chit. Contr. 836; 11 N. Hamp. Rep.
234.
LIQUIDATED. That which is made clear, certain, and manifest; as, liquidated damages, ascertained damages liquidated debt, an ascertained debt, as to amount. A debt is liquidated when it is certain what is due, and how much is due, cum certum est an et quantum debeatur; for although it may appear that something is due, if it does not also appear how much is due, the debt is not liquidated. An unliquidated claim is one which one of the parties to the contract cannot alone render certain. 5 M. R. 11; 1 N. S. 130; 6 N S. 715; 6 N. S. 10, 13 L. R. 275; 7 L. R. 134, 599. Such a claim cannot be set off. 2 Dall. 237; S. C. 1 Yeates' R. 571; 10 Serg. & Rawle, 14; see Poth. Ob. n. 628; Dig. 50, 17, 24; Id. 42, 1, 64; Id. 1, 45, 112; Id. 46, 5, 11; Code, 7, 47. Dom. Lois Civ. l. 4, t. 2, s. 2, n. 2; Arg. Inst. 1. 4, c. 7; 7 Toull. n. 369; 6 Duv. Dr. Civ. Fr. n. 304.