Law of Liquidated Damages in Contracts: Under Contract Act 1872 and Case Law

Law of Liquidated Damages in Contracts: Under Contract Act 1872 and Case Law

The history of contracts and promises dates back to the ancient Greek and Roman era when people used to create rights and obligations by virtue of mutual agreements whether written or oral. With the passage of time grew the intricacies in laws and contracts which led to the substantial evolution in jurisprudence of contract law and the addition of countless new authorities and opinions into the pool of legal research over questions of law in transactional matters.

Every contract carries a tendency of breach and every breach carries with it a potential for dispute. In modern transactions, these breaches and disputes are quite complex and technical which end up having various different views and authorities over the same points of law. One such example is the law pertaining to liquidated damages under the provisions of the Contract Act 1872.

To simply put, liquidated damages are pre-estimated or ascertained damages that are foreseen/envisaged by the parties and are stipulated within the agreement/ contract. As defined in the famous case of Dunlop Pneumatic Tyre Co. Ltd. vs. New Garage (1915), liquidated damages are the “genuine covenanted pre-estimate of damages” which need not be proven and need not even have occurred. Thus, it can be inferred that for liquidated damages to be enforceable, no actual loss or suffering needs to be put on record or proved.

It is important to note that for claiming damages, the concepts of ‘time being of the essence’ and ‘not of the essence’ are also important. The relevant provision of the Contract Act for the determination of time being essential or not is Section 55.

For a thorough understanding of this concept, section 55 is reproduced below:

55. Effect of failure to perform at a fixed time, in contract in which time is essential—When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract. —


 

If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. —


If, in case of a contract voidable on account of the promisor’s failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so.”

A cursory reading of section 55 suggests that the conduct of the parties is of prime importance to see whether or not time was of the essence in the contract.

For instance, a party to a contract is to receive certain goods/materials within a stipulated time. The other party fails to deliver such goods/materials within the specified time and the first party accepts the late delivery of such goods/materials. Here, the conduct of the first party shows that time is not of the essence in this contract. Had the said party accepted delivery only within the specified time, or had either repudiated the contract (under subclause 1 of Section 55) and sought damages, or had accepted late delivery subject to issuance of a notice to the other party (as warranted under subclause 3 of Section 55), time would have been of essence. Thus, where party ‘A’ agrees to deliver certain goods/materials to party ‘B’ and both parties agree in the contract that ‘delivery’ shall commence within 90 days and stipulate $200 per week in case of late delivery, then this provision specifically grants to party B the right to recover the stipulated amount of $200 per week as damages in case of delay in delivery.

The leading judicial pronouncement which laid down factors to determine whether time is of the essence for a contract is Sandoz Limited Versus Federation of Pakistan cited as 1995 SCMR 1431 (Sandoz Case).  The facts in Sandoz were that in terms of the supply contract awarded to Sandoz Limited by the Federal Directorate of Agriculture Supplies, Ministry of Food and Agriculture, Sandoz had to supply the material within a fixed date and in case of a delay in supply Sandoz would be liable to pay damages.

Having considered leading authorities on the issue, from American, British and Pakistani jurisdictions, their lordships, while interpreting Section 55 of the Contract Act 1872 in Sandoz Case, arrived at the finding that the expression “time should be of essence for the contract”  appearing at the bottom of the first part of the Section, had been left undefined by the legislature “for whether time is or is not of the essence must inevitably depend upon the parties’ intention to be gathered from the terms of the contract as a whole, and the antecedent circumstances leading to the contract”.  Justice (R) Fazal Karim, while agreeing with Ajmal Mian J. (as he then was), held at para 39, page 1475 of the Sandoz Case that:

The test to determine whether time is or is not to be regarded as of the essence, therefore, is whether failure to perform the promise timeously will deprive the promise of the whole or substantially the whole benefit which it was intended that he should obtain for the contract”. It was further held at para 39-A that “Section 55 of the Contract Act makes the contract voidable at the option of the promisee if the specified time was intended to be of the essence and the contract is not performed within the specified time, but if the time was not intended to be of the essence, it entitles the promisee to compensation from the promisor for any loss occasioned to him.”

The general rules of construction of contracts as stipulated in Chitty On Contracts are that the object of all construction of the terms of a written agreement is to discover the intention of the parties therein (para 12-039), and that in order to resolve any ambiguity while construing a document, the court may look at its commercial purpose and factual background (para 12-040). Furthermore, the rule of adoption of the ordinary meaning of words (para 12-044) envisages that the terms of a contract are to be understood in their plain, ordinary and popular sense.

Furthermore, in order for a party to demand the precise or correct amount, it has been required as a condition precedent to ‘quantify’ the amount of liquidated damages and thereafter serve a written notice to the other party and claim payment. It is only if a party fails to comply with the written demand notice that the other party becomes authorized to recover the demanded amount forthwith through calling upon the performance/warranty bond guarantee.

Another leading authority enunciating the same principle is Oil and Natural Gas Corporation Ltd. vs SAW Pipes Ltd (the SAW Pipes Case AIR 2003 SC 2629). In this case, the supplier delayed delivery of casting pipes which caused a delay in the deployment of rigs and on that basis, the actual production of gas from a specified platform had to be changed. Since one of the witnesses testified that the delay was one of the factors for the redeployment plan, therefore the arbitration tribunal held that the petitioning corporation was not entitled to retain compensation. After a survey of leading authorities and provisions on that point, the Indian Supreme Court held in para 68 that:

“In our view, in such a contract, it would be difficult to prove exact loss or damage which the parties suffer because of the breach thereof. In such a situation, if the parties have pre-estimated such loss after clear understanding, it would be totally unjustified to arrive at the conclusion that party who has committed breach of the contract is not liable to pay compensation. It would be against the specific provisions of Ss. 73 and 74 of the Indian Contract Act.”

Another factor on the basis of which the court found the judgment in favour of the petitioner was that:

“There is nothing on the record that compensation contemplated by the parties was in any way unreasonable.” It was further held that “It was also mentioned that the liquidated damages are not by way of penalty. Finally while setting aside the tribunals decision, the Court held that “There was no reason for the tribunal not to rely on upon the clear and unambiguous terms of agreement stipulating pre-estimate damages because of delay in supply of goods.”

The reasonableness or genuineness of the pre-estimated loss also raises some very difficult and technical questions, both in commercial as well as in non-commercial contracts.

There was an argument raised by shipbuilders in Clydebank Engineering Co. vs Yzquierdo Y Castaneda (1905) where the contract was for building four warships and the penalty for late delivery was fixed at the rate of £500 per week. Clydebank contended that there could not be a genuine pre-estimation of loss as the warship did not earn money. However, Lord Halsbury refuted the argument and termed the stipulated rate of penalty as ‘liquidated damages’ establishing that a difficulty in ascertainment is no barrier to an estimate being made. This ruling has been followed by courts on various occasions and the courts have laid the dicta that “the very difficulty in ascertaining the damages for late completion is a good reason why such damages should be liquidated”.

In the above referred Dunlop Pneumatic Tyre case, Lord Dunedin agreed with Lord Halsbury, stating the following:

“It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimated damage was true bargain between the parties.”  

Apart from the Sandoz Case, which clarifies the position with regard to the essence of time and the applicability of Section 55 of the Contract Act to the specified situations, the SAW Pipes Case aluminates the matter regarding eligibility of a party to liquidated damages in a sale of goods contract where the contract has envisaged grant of compensation due to breach of contract even when the proof of actual loss due to a delay in the delivery of goods has not been proven.

However, the perspective of Pakistani judges and lawyers is quite different as to the interpretation of the abovementioned provisions of the Contract Act. In many instances, liquidated damages are demanded to be proven and are not granted otherwise in case of a delayed delivery of goods. The legal provisions about liquidated damages are clear at this point, however, the encashment of performance bonds/guarantees becomes debatable despite the law and relevant jurisprudence being unambiguous about them once the conditions to have them enchased have been met.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

 

See also: http://courtingthelaw.com/2019/03/22/commentary/liquidated-damages-performance-guarantees-a-complex-relationship/

Waiza Rafique

The writer is a practicing Lawyer and can be reached at waiza.azamrai@gmail.com



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One Comment;

  1. Muhammad Akram Sawleh said:

    A very well written piece. The writer is very right about the current approach of the Pakistani courts that is prim facie against the law developed on the subject. She argued her case very well for the liquidated damages which are more relevant in cases of
    recovery of loans. It is known concept that banks/financial institution act as intermediaries between depositors and borrowers. When a borrower doesn’t return loan he/she is actually retaining the money that could be lent to some other borrower for some other productive purpose and the bank/financial institution suffers the opportunity cost that is claimed as liquidated damages but is being denied consistently by the courts in Pakistan.

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