Judicial Oversight of Remedy Stipulation

• Author: Jamie Cassels
• Profession: Professor of Law University of Victoria
• Pages: 406-420

CHAPTER

14

JUDICIAL

OVERSIGHT

OF

REMEDY

STIPULATION

A.

INTRODUCTION

1)

Remedy

Stipulation

and

Liquidated

Damages

It

is not

uncommon,

in

both tort

and

contract cases,

to

find

that

the

parties have sought

in

advance

to

specify

an

amount

of

damages

for

breach

of

duty. Exclusion clauses

and

limitation clauses contained

in

written

agreements

and in

posted notices

frequently

seek

to

limit

both

liability

and the

amount

of

damages that

may be

claimed

for

tort

or

breach

of

contract. These clauses

are

inserted

for the

benefit

of the

breaching party. Conversely, contracts sometimes contain "liquidated

damages" provisions which

specify

a

fixed

amount

of

damages

for

breach

and are

generally included

for the

benefit

of the

plaintiff.

Other

clauses,

such

as

"acceleration clauses"

and

clauses providing

for

forfei-

tures

of

deposits, also serve

to

stipulate

the

remedy.

The

essential ques-

tion

in any

case

is

whether

or not the

courts will

enforce

the

stipulated

remedy

at the

suit

of the

plaintiff

upon breach. Exclusion clauses

are

controlled

by

substantive

law of

contract regarding notice

of

terms

and

unconscionability.

As

such, they will

not be

dealt with here. Instead,

this

chapter

is

concerned with stipulated damages provisions, generally

called

"liquidated

damages."

406