This, the only book in print to focus on liquidated damages and
penalty clauses, analyses the common law jurisdiction to control
stipulated damages clauses, and the distinction between enforceable
liquidated damages clauses and unenforceable penalty clauses. The
first part examines the historical origin of the control of these
clauses, the second describes the current control of such clauses
and their legal effect, the third critically examines the various
rationales that have been proposed to justify their regulation and
the final part describes analogous provisions and how to avoid
drafting contractual clauses that are rendered unenforceable by the
penalty rule. The book examines approaches in several common law
jurisdictions in addition to England and Wales, including the
United States, Australia, New Zealand, and Canada, and brings
together principles developed in distinct commercial law contexts
(such as shipping contracts) to enable comparison between
particular contractual settings. Cited in the Court of Appeal, New
Zealand, in 127 Hobson Street Ltd v Honey Bees Preschool Ltd [2019]
NZCA 122 [18 April 2019]
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My review
Fri, 14 Sep 2018 | Review
by: Phillip T.
A SHORT AND SUCCINCT STATEMENT
OF GREAT ASSISTANCE TO THE PRACTITIONER
An appreciation by Elizabeth Robson Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers and Reviews Editor, “The Barrister”
Roger Halson’s slim volume from Oxford University Press is probably the only current book in print which centres on liquidated damages and penalty clauses from the point of view of the practitioner. It analyses “the common law jurisdiction to control stipulated damages clauses, and the distinction between enforceable liquidated damages clauses and unenforceable penalty clauses”.
As Lord Dyson writes, “it is a significant and much-needed treatise on an important area of our law.” The decision in the Cavendish case “runs right through the book” says Dyson, with much case law being needed “to work out the full effect and implications” of that decision. For all lawyers who seek a good, working understanding of the ruling in Cavendish, this book is for you.
Dyson concludes rightly that this “invaluable book will be indispensable for all judges and practitioners who undertake that exercise.” Halson looks, firstly, at the historical origin of the control of these clauses which gives us all some perspective on where we are today and we feel the author does clear up some misunderstanding which both undergraduates and practitioners may hold.
The author goes on to describe the current control of penalty clauses and their legal effect. The third part, to use the author’s words, “critically examines the various rationales that have been proposed to justify their regulation”.
Halson finishes with a review of analogous provisions and how to avoid drafting contractual clauses that are rendered unenforceable by the penalty rule. All in all, a most refreshing statement for multiple audiences.
Halson’s aim is to give us a work of great value not just to the practitioner, but also the academic, because the approaches are investigated in several common law jurisdictions in addition to England and Wales.
They include the United States of America, Australia, New Zealand, and Canada. What is particularly useful is that the author introduces principles developed in their distinct commercial law contexts, as an example shipping contracts, to compare particular contractual settings. This OUP title is a most welcome short, yet succinct, statement on the law relating to liquidated damages and penalty clauses and is of great value and assistance to the modern practitioner.
The publication date is 8th March 2018 and takes account of materials available to December 2017.
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