Ergebnisse 11 - 20 von 32 gefundenen in "Pauschalierter Schadenersatz / Liquidated Damages":
The reason that owners use liquidated damages to quantify and collect delay damages when the project duration is extended by a contractor delay is due to the fact that it may be difficult or practically impossible for owners to accurately determine their actual damages before the contract is executed.
A liquidated damages clause, however, providing for the payment of excessive damages will be interpreted as a penalty, and will be struck out as unenforceable. Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [2005] EWHC 281 (TCC) and the unreported case of Volkswagen Financial Services (UK) Ltd v Ramage (unreported, Cambridge County Court, 9 May 2007) illustrate recent judicial interpretation on the difference between, and construction of, liquidated damages clauses and penalty clauses.
The treatment of liquidated damage clauses varies slightly among different jurisdictions within the United States, but generally the courts consider two elements to determine whether a liquidated damage clause is enforceable.
Until a few years ago it was well established that liquidated damages clauses must not constitute a penalty or deterrent. It was thought that to be enforceable on breach, the damages specified must be a genuine pre-estimate of the loss that would be suffered. If the figure was set too high, the clause would probably not be enforceable because the sum would be deemed a penalty.
Whether or not a liquidated damages clause is enforceable is a question of law. (Harbor Island Holdings v. Kim, 107 Cal. App. 4th 790, 794 (2003).) - See more at:
Both Australian and English Courts have referred to the same general principles when considering the effect of ‘$ nil’ liquidated damages clauses, namely:
It is worth noting that the Arabic term used, mostly by state courts, for LDs can be translated as “delay fines” or “penalty clause”, and rarely the term “consensual compensation” is also used. This terminology sheds light on an essential difference between the position in the UAE and that in common law countries where the penal nature of LDs is a ground to attack their enforceability
The Commercial Division courts have upheld liquidated damages provisions where unconvinced that the amount of damages serves as a penalty and where the actual anticipated damages were not easily calculated at the time of the contract. In Honeywell Int’l Inc. v. Northshore Power Sys., LLC, for example, Justice Bernard Fried of the New York County Commercial Division noted that the Court of Appeals has “cautioned generally against interfering with parties’ agreements, and cited the trend favoring freedom of contract through enforcement of stipulated damages provisions as long as they do not clearly disregard the principle of compensation.
Werkunternehmer können ihre Vergütung bei vorzeitiger Vertragsbeendigung mit einer Pauschale in AGB regeln. Die Pauschale kann über der gesetzlichen Pauschale liegen (5% der Nettovergütung, die auf die noch nicht erbrachten Leistungen anfällt, § 649 S. 3 BGB).
LDs bring a greater degree of certainty than relying on the contract law rules regarding claiming general damages - you know how much you can recover (or how much you will pay)


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