Liquidated damages in construction contracts

The inclusion of a liquidated damages clause in construction contracts is a common way of compensating an Owner or Head Contractor if a Builder or Subcontractor is delayed in finishing the work which is the subject of the contract.

It is therefore important to understand exactly what is meant by this term, particularly if you find yourself in the unfortunate position of being the party in breach under the contract.

What are liquidated damages?

In their simplest form liquidated damages are of calculation of the compensation that a party in breach of its obligations under a contract will pay to another party to that contract.

As the exact amount of damages for a breach of contract can often be difficult to calculate at any given moment, rather than a contract providing for an unquantified amount of damages, a liquidated damages clause fixes the sum of damages or the rate at which damages will be assessed, in advance should a breach occur in the contract.

Are liquidated damages the same as agreed damages?

The short answer is ‘yes’. Other terms you may come across, which effectively mean the same thing as ‘liquidated damages’ include ‘pre-estimated damages’, ‘stipulated damages’, ‘liquidated and ascertained damages’ and ‘adjustment of time costs’.

Liquidated damages clauses in construction contracts?

Liquidated damages clauses are useful in construction and other commercial contracts, because they provide a degree of certainty for all parties as to how much will be paid should a breach of contract occur.

It is often difficult to quantify the damage suffered when construction is ongoing. The inclusion of a liquidated damages clause in a contract does away with the need to prove the quantum of actual loss and allows both parties to decide in advance either the exact amount or the rate at which the amount will be calculated in the event that a breach of contract occurs.

Liquidated damages clauses are particularly relevant for construction contracts because they:

• allow the parties to quantify and allocate risk and express their intentions should a breach of contract arise;

• allow parties to clearly understand in advance how loss will be calculated should a breach occur;

• encourage all parties to comply with their respective contractual obligations in the knowledge that if they don’t, the clause can be enforced without the need to resort to litigation;

• allow a contractor, at the time they are tendering, to factor the price of their exposure (the amount specified for liquidated damages it there is a breach) into their contract price;

• allow a contractor to compare the cost of accelerating works in order to achieve practical completion by a required date against the amount of liquidated damages that become due and payable if practical completion is not achieved by the due date;

• perhaps provide a ceiling or a cap on a contractor’s liability for specified breaches of contract; and

• provide an Owner or Head Contractor with a means to recover damages regardless of the amount of any actual loss.

Liquidated damages vs. penalty?

While the Courts have demonstrated that they will enforce liquidated damages clauses, they have also made it clear that they will not enforce a clause if it amounts to a penalty.

The factors that determine whether liquidated damages are a de facto penalty will vary from contract to contract. However, the Courts have traditionally applied four key tests when considering whether a contractual provision goes beyond liquidated damages and is a penalty.

The first three key questions are:

1.            is the amount or the rate provided “extravagant and unconscionable” when compared with the greatest possible loss that could possibly be shown to result from the particular breach of contract?

2.            does the breach consist solely of non-payment of money which results in a larger sum for damages being required?

3.            does the clause stipulate the same amount of damages for different breaches, even if the breaches vary in terms of seriousness?

If the answer to any of these questions is ‘yes’ then it is likely the clause will be considered to be a penalty and will not be enforceable.

If actual loss can’t be quantified, is it a penalty?

The Courts have indicated that they will not consider a clause to be a penalty simply because it is not possible to estimate in advance the actual or true loss that may be suffered. Therefore it is important to consider the previous tests carefully when determining the size and scope of any liquidated damages clauses.

The difference between a fair and reasonable liquidated damages clause and a clause that may be struck down by a Court as a penalty and unenforceable, can be a difficult line to draw, even when all parties to a contract enter into negotiations with the best of intentions.

Before entering into a contract or agreeing to a liquidated damages clause it is always advisable to seek legal advice to ensure that you understand the full ramifications of the agreement and to check that, if needed, the terms of the contract will be able to be enforced… either for or against you.