class notes - oct 25 - misrepresentation

class notes - oct 25 - misrepresentation - Class notes...

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Blackcomb page 170 Schneider Liquidated damages clause Blackcomb $ 2 , 290 , 000 *deposit 150 000 in Blackcomb’s lawyer’s trust account If Schneider defaults on obligation, the Blackcomb can claim as liquidated damages Parties agree this amount is a genuine pre-estimate Deposit is retained instead of going to court Obtained even if B suffers no losses LAW Courts will enforce a liquidated damage clause IF they are a genuine pre-estimate of the loss on breach. Factors looked at 1 Contract – a deal is a deal 2 Sophistication of parties 3 The fact that plaintiff makes a profit (or losses) is irrelevant 4 Industry standard 5 Is the deposit an attempt to scare a party into performance 6 Courts will not enforce the clause if it considers it to be an unconscionable penalty a. Oppressive b. Exorbitant c. Extravagantly disproportionate d. To the true losses capable of pre-estimate e. Q – what is the amount based on? Blackcomb sold for $2 450 000.
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This note was uploaded on 12/10/2011 for the course COMM 393 taught by Professor Elaine during the Spring '10 term at UBC.

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class notes - oct 25 - misrepresentation - Class notes...

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