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One reason for this is that the enforcement of the term would, in effect, require an equitable order of specific performance.However, courts sitting in equity will seek to achieve a fair result and will not enforce a term that will lead to the unjust enrichment of the enforcing party.For example, a builder who does not meet his or her schedule may have to pay a penalty. Sometimes the liquidated damages are the amount of a deposit or a down payment, or are based on a formula (such as 10% of the contract amount). The damages will be considered as liquidated in the following cases: 1. Liquidated damages, on the other hand, are an amount estimated to equal the extent of injury that may occur if the contract is breached. The non-defaulting party may obtain a judgment for the amount of liquidated damages, often based on a stipulation (clear statement) contained in the contract, unless the party who has breached the contract can make a strong showing that the amount of liquidated damages was so "unconscionable" (far too high under the circumstances) that it appears there was fraud, misunderstanding or basic unfairness. By this term is understood the fixed amount which a party to an agreement promises to pay to the other, in case he shall not fulfill some primary or principal engagement into which he has entered by the same agreement it differs from a penalty. When the damages are uncertain, and not capable of being ascertained by any satisfactory or known rule; whether the uncertainty lies in the nature of the subject itself, or in the particular circumstances of the case. (a) This subpart prescribes policies and procedures for using liquidated damages clauses in solicitations and contracts for supplies, services, research and development, and construction.(b) This subpart does not apply to liquidated damages– (1) For subcontracting plans (see 19.705-7); (2) Related to the Contract Work Hours and Safety Standards statute (see subpart 22.3); or (3) Related to paid sick leave for Federal contractors (see subpart 22.21) (a) The contracting officer must consider the potential impact on pricing, competition, and contract administration before using a liquidated damages clause.Liquidated damages are used to compensate the Government for probable damages.

This, therefore, would be an appropriate circumstance for Richard to insist upon a liquidated damages clause in case Neal fails to perform.The purpose of this stipulation is to establish a predetermined sum that must be paid if a party fails to perform as promised. Damages can be liquidated in a contract only if (1) the injury is either "uncertain" or "difficult to quantify"; (2) the amount is reasonable and considers the actual or anticipated harm caused by the contract breach, the difficulty of proving the loss, and the difficulty of finding another, adequate remedy; and (3) the damages are structured to function as damages, not as a penalty. A penalty is a sum that is disproportionate to the actual harm. (c) The contracting officer must take all reasonable steps to mitigate liquidated damages.If the contract contains a liquidated damages clause and the contracting officer is considering terminating the contract for default, the contracting officer should seek expeditiously to obtain performance by the contractor or terminate the contract and repurchase (see subpart 49.4).There are many reasons why liquidated damages may not be enforced, but they generally involve just a few legal concepts: (1) Whether any damages actually were suffered; (2) Whether the prescribed liquidated damages meet minimum requirements for reasonableness; (3) Whether the contract language requires the all-or-nothing or apportionment-of-delay analysis; (4) Whether liquidated damages are barred by acts or omissions of the owner which prevented timely performance, amount to a waiver, or estop the owner from enforcing the liquidated damages provision.