Countries that use a civil law approach view sentences very differently than common law countries like the United States. As a general rule, civil codes are based on the Napoleonic Code, which allows contracts to be enforced through the use of penalties. · In the United Arab Emirates, as in many other civil courts, in order for lump-sum damages to be applied, the amount indicated must be an actual estimate of the damage likely to be suffered in the event of the occurrence of the triggering event. (iii) Unenforceable lump sum damages if no actual damage or loss has been suffered – which is often unenforceable (unenforceable lump sum damages). Notwithstanding the above, the contractor (most likely the weaker party) may still have defences to protect themselves in the civil justice system. The provisions on lump sum damages under the laws of the United Arab Emirates are in principle valid and enforceable. Article 389 of the civil law of the United Arab Emirates, which corresponds to article 221 of Egyptian civil law, allows a party to claim indirect damages resulting from the breach of contract by the other party, provided, however, that the contract does not estimate in advance the damage for these losses. The relevant part of this legislation is this: most countries will use the same factors to distinguish between lump sum damages and penalties. Countries that apply rules similar to those of the United States include: The purpose of a lump-sum compensation provision is to calculate how much a party must lose if the contract is breached or the service is not provided. The courts will apply these provisions if they decide that it would be difficult to estimate the damage resulting from a breach of contract and that the damages described in the contract are reasonable, which means that the amount of the damage is not greater than the losses actually suffered. However, there are no laws in India that distinguish between penalties and lump sum damages, meaning that such damages can be recovered even if their intention is to punish the injured party. It is again apparent from the above-mentioned Egyptian judgment that the court did not distinguish between the penalty clause and the lump sum compensation. In another sense, the above judgment states that the award by the parties of the damages agreed in the contract (lump sum damages) is ultimately at the discretion of the court and the court`s assessment of the facts and circumstances.
Belgium: Penalty clauses are allowed, but the amount can be mitigated if it “manifestly exceeds the actual damage” and if part of the main contractual obligation has been fulfilled.16 Spain: Article 1154 of the Codigo Civil regulates the penalty clauses (Clausula Penal) which can be reduced by a judge if part of the main contractual obligation has been fulfilled. There is no provision on the mitigation of the penalty for excess, making Spain one of the few countries that has not amended its civil code to allow for a reduction in the amount of the penalty. The buyer did not pay the first instalment. The seller terminated and demanded 20% of the total price according to the contract. The buyer argued that the 20% constituted a penalty clause because the amount was not relative or reasonably foreseeable. In civil law countries, attitudes towards contractual penalties differ considerably from the common law approach. The Napoleonic Code, on which most civil codes are based, authorized sanctions to promote the performance of contractual obligations. (This is the exact justification rejected in the United States.) However, in recent years, there has been a widespread tendency in civil law countries to limit the scope of these sanctions and to allow courts to reduce the amount if they deem it excessive. North Carolina courts recognize a twofold test for determining whether lump sum damages are enforceable or constitute a penalty: (1) Damages resulting from breach of contract must be difficult to determine at the time the parties enter into the contract; and (2) the agreed amount of damage is either a reasonable estimate of the damage likely to be caused by a breach or proportionate to the damage actually caused by the breach. If the disputing party to the lump sum damages can either prove that the actual damage was not difficult to determine, or that the lump sum compensation was not a reasonable estimate of the actual damage and was not proportionate to the actual damage, the provision on lump sum damages will not be applied. Portugal: The Supreme Court upheld a penalty clause in a car leasing contract because the penalty was proportional to the risk of breach of contract and loss of value of the car.24 Lump sum compensation provisions are useful because they provide compensation for construction delays at the beginning of the project and eliminate the need to prove actual damage. The party benefiting from the lump-sum compensation clause only has to prove that the performing party delayed the completion of the project in order to be entitled to recover the amount of damages listed in the contract.
In the absence of a lump-sum damages provision, an owner or contractor must prove both that the contractor delayed the project and the actual damage caused by the delay in order to receive compensation for the delay. Proving actual damage is a difficult task that requires detailed evidence that links the damage with reasonable certainty to the period of unreasonable delay. Therefore, it can be very useful to be able to count on a lump sum compensation in case of late delivery. The sole purpose of lump sum damages is to provide a method of calculating damages that would otherwise be difficult to prove. If the lump sum damages are not proportional to the actual or anticipated loss, the courts may decide that this is a penalty. If the court finds that the damages are in fact a penalty, the provision is set aside and the aggrieved party can only claim the actual damage caused by the breach of contract. · The court is generally competent to reduce the amount of damage agreed in the contract if it is obvious that the damage actually suffered is less than the total amount of damage agreed in the contract. A lump sum indemnification clause is a genuine amount agreed in advance paid after a specific breach of contract. However, general clauses are not easy or even definitively enforceable.
We advise on gray areas. Most other common law countries such as England, Australia, Ireland and Canada have similar rules regarding lump sum damages and do not allow the use of lump sum damages as a penalty.1 An exception to the rule is India, where the Contracts Act makes no distinction between lump sum damages and penalties and allows contractual damages for non-performance, even if the intention is: 2 According to the Egyptian jurisprudence statement on this provision of civil law, if the debtor has not fulfilled his obligations, the compensation he pays should be of two types, (i) compensation for non-performance and (ii) compensation for delay in performing such a service. In the case law of the different European countries, it is difficult to find a uniform application of the lump sum clauses of damages/penalties. In most countries, courts never assess the intent behind the sentence. Whether it is enforceable depends solely on its exaggerated amount. However, some countries have adopted a more restrictive approach and are also examining the relationship between the penalty/lump sum damages and the actual loss suffered by the claimant. This approach is similar to the common law approach to lump sum damages. “I find Lexology News Feed articles very relevant and up-to-date on a variety of topics of interest to my areas of expertise. The authors are reliable and up-to-date on the topics on which they comment. Even though several law firms write about the same topic, I can often draw new perspectives and perspectives from different law firms. Titles are also useful because they describe the topic briefly and accurately and allow me to quickly and effectively decide what I want to read more closely or not. Do I need to include a lump sum indemnification clause in my contract? Lump sum compensation clauses have several contractual advantages.
First, they establish a certain predictability of costs, allowing parties to weigh the cost of the expected service against the cost of an infringement. In this way, the lump sum compensation serves as a limited source of insurance for both parties. Another contractual advantage of lump-sum indemnification clauses is that the parties each have the option of agreeing on a mutually acceptable amount, rather than leaving that decision to the courts and adding the cost of time and attorneys` fees. It is for the court, if the entrepreneur can prove that the rate of lump sum damages has been grossly exaggerated, to reduce the said damages to an amount corresponding to the damage suffered. However, the court is not required to reduce the amount to an amount corresponding to the damage actually suffered. The burden of proof that less or no damage occurred as a result of the delay lies with the party who intends to contest the amount of the damage agreed and imposed. Denmark: The Supreme Court has removed a penalty clause for a penalty disproportionate to the contract price. The penalty in question was four to six times the price of the contract. The tribunal also concluded that the plaintiff had not proved that he had actually suffered the corresponding damage.20 In summary, the lump-sum compensation clauses for the party aggrieved by the delay provide an effective remedy in circumstances where it is difficult to calculate the actual damage caused by the delay […].