The situation is all too common: The contract provides liquidated damages (LDs) for delay, the contractor was late, and now the owner is withholding those LDs from the final payment. The contractor wants to know if the owner can actually withhold the LDs. Likely, the contractor will blame one or more of its suppliers or subcontractors. The owner will also be blamed. At the same time, the owner is calling its lawyer and making sure it can actually do what the contract seems to make pretty clear. These are the situations construction lawyers deal with all too often.
This presentation by expert speaker Zach Jones explains the law of liquidated damages with updated case law and a deeper explanation of the underlying legal principles at play when courts are asked to either enforce or avoid liquidated damage clauses.
Liquidated Damage clauses have a long and storied history dating back to the very beginning of courts of law (and the court of the ecclesiastical chancellor?) as we know them. Since that interesting and relevant beginning, courts have struggled to reconcile the historical disfavor with which liquidated damages clauses were viewed and the desire to allow people to freely enter into contracts. Often, reading modern court opinions addressing liquidated damages leaves as many questions as it answers.
Questions, such as what's the difference between first and second restatement approach? Why some courts only talk on unconscionability? Why is it important for courts to decide that the liquidated damage clauses aren't penalties? Why can't courts simply enforce terms of agreement? etc. are asked. Fortunately, there are answers. This session explores both the past and present cases to explain the whys, wheres and hows that underpin modern American Jurisprudence addressing liquidated damages.
Who Should Attend
Zach Jones is a construction attorney in Louisville, Kentucky, with the firm of Stites & Harbison who represents contractors across the country and around the world. Prior to becoming an attorney, Zach was a project engineer and estimator for W.L. Hailey & Company (now Layne, ENR Top 400 #53). Havin... More info