Penalty Clauses in Commercial Contracts

2021 ◽  
Author(s):  
Walter Doralt
Keyword(s):  
Penalty Clauses

Remedies for Breach of Contract

1996 ◽  
Vol 1 (1) ◽  
pp. 43-78
Author(s):  
William W McBryde
Keyword(s):  
Critical Survey ◽  
Breach Of Contract ◽  
University Of Edinburgh ◽  
The Subject ◽  
Penalty Clauses ◽  
Law Commission

This paper,first presented on 21 October 1995 at ajoint seminar ofthe Scottish Law Commission and the Faculty of Law, University of Edinburgh, on the subject of breach of contract, is a critical survey of the remedies available in Scots law for breach of contract. It considers interest, specific implement, interdict, breach of contract, the mutuality principle, damages and penalty clauses.

The Regulation of Unfair Terms and Consumer Protection in Japan

2020 ◽  
pp. 186-206
Author(s):  
Hiroyuki KIHARA
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
Judicial Control ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Penalty Clauses ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how Japanese contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Japanese courts have exercised a more indirect control by employing traditional general contract law doctrines, such as public policy, good faith, interpretation, or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Japanese courts regulate unfair contract terms in practice.

The Regulation of Unfair Terms in Indian Contract Law: Past, Present, and Future

2020 ◽  
pp. 111-134
Author(s):  
Stelios Tofaris
Keyword(s):  
Contract Law ◽  
Judicial Control ◽  
Contract Formation ◽  
Indirect Control ◽  
Consumer Contracts ◽  
Penalty Clauses ◽  
Unfair Terms ◽  
General Contract Law ◽  
Standard Terms ◽  
Restraint Of Trade

This chapter examines how Indian contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under specific legislation, sometimes targeted exclusively at standard terms or consumer contracts. It also analyses how the Indian courts have exercised a more indirect control by employing traditional general contract law doctrines, such as contract formation and interpretation or the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. A number of hypothetical clauses are analysed to illustrate how Indian courts regulate unfair contract terms in practice.

Part I International Sales Governed by English Law, 9 Remedies: Termination and Damages

2017 ◽  
Author(s):  
Bridge MG
Keyword(s):  
Common Law ◽  
Standard Form ◽  
Breach Of Contract ◽  
The Common ◽  
Penalty Clauses ◽  
English Law ◽  
International Sale Of Goods ◽  
International Sales ◽  
Statutory Basis

This chapter deals with remedies for breach of contract to the extent that they have a particular application to international sale of goods agreements. Attention is given to termination for breach and damages. Even here, however, certain aspects (for example, penalty clauses) are left to general works on contract and sale of goods. This chapter also examines clauses in standard form contracts dealing with the quantification of money awards; they commonly depart from the common law and statutory basis for assessing damages. In addition, though they fall outside breach of contract, the chapter also looks to certain settlement clauses, operative in the event of an insolvency or of a circle appearing in the sales string.

scholarly journals Penalty Clauses In England And France: A Comparative Study

2004 ◽  
Vol 53 (1) ◽  
pp. 79-106 ◽  
Author(s):  
Lucinda Miller
Keyword(s):  
Comparative Study ◽  
Comparative Research ◽  
Penalty Clauses

The study of penalty clauses1 is a rewarding area of comparative research. The most cursory of examinations reveals the diametrically opposed theoretical positions of contemporary legal orthodoxy in France and England. Asearch for the rationale behind this theoretical divergence gives insight not only into the broader conceptual and substantive differences between the two jurisdictions, but, importantly, their many similarities as well.

scholarly journals Penalty Clauses and the CISG

2012 ◽  
Vol 30 (2) ◽  
Author(s):  
Jack Graves
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Traditional View ◽  
Advisory Council ◽  
Liquidated Damages ◽  
The Common ◽  
Penalty Clauses ◽  
International Sale Of Goods ◽  
Commercial Agreements

Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause should be determined by reference to the general principles of the CISG and that such a clause should generally be enforced. The validity of fixed sums, as penalties, is currently under consideration by the CISG Advisory Council, so further exploration of the issue would seem particularly timely. This article examines the basis for the traditional view, along with two distinct challenges to that view—ultimately concluding that these challenges fail to support their respective solutions to the issue and suggesting the continuing vitality of the traditional view.

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