Liquidated Damages: A Dangerous Afterthought

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The parties to a construction contract should never agree to an amount of liquidated damages without first attempting to forecast and calculate actual, potential damages.

January 15, 2019
Trevor B. Potter - Construction Executive

Owners and contractors frequently treat liquidated damages provisions as an afterthought, but they deserve to be treated as a key deal term. If a contractor breaches a contract by failing to complete the work in a timely manner, the remedy is typically an agreed upon amount or rate of liquidated damages.

Liquidated damages provisions seldom get more than a cursory, “back of the napkin” analysis, or worse, parties will simply plug in a number. This practice is dangerous because liquidated damages typically represent the owner’s sole remedy for delay and, more importantly, they are subject to attack and possible invalidation if certain legal standards are not met. The parties to a construction contract should never agree to an amount of liquidated damages without first attempting to forecast and calculate actual, potential damages.

Reprinted courtesy of Trevor B. Potter, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.



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