Clause was a Penalty – Not Estimate of Loss
By articles of agreement between the Plaintiff arid Defendant it was agreed on the part of the former that he should pay the latter so much per week to perform at his theatres, with her travelling expences of removing from one theatre to another except extra baggage ; and on the part of the defendant, that she should perform at the theatres such things as she should be required by the Plaintiff, and attend at the theatre beyond the usual hours on any emergency and at rehearsals or be subject to such fines as are established at the theatres, and be at the theatre half an hour before the performances begin, and abide by the regulations of the theatres and pay all fines ; and it was agreed by both parties ‘either of tbem neglecting to perform that agreemeut should pay to the other 200l. Assumpsit upon this agreement stating several breaches, and concluding to the Plaintiff’s damage of 200l. Held that the sum mentioned in the agreement was in the nature of a penalty, not of liquidated damages.
Lord Eldon confessed himself, not for the first time, ‘much embarrassed in ascertaining the principle on which [the rule was] founded’.
Lord Eldon
[1801] EngR 108, (1801) 2 Bos and Pul 346, (1801) 126 ER 1318
Commonlii
England and Wales
Cited by:
Cited – Parkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.
Contract, Equity
Leading Case
Updated: 02 November 2021; Ref: scu.345354