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TOWARDS A RECONSTRUCTION OF THE RULE AGAINST PENALTIES USING THE ‘JUST COMPENSATION’ CRITERION
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Journal Article
TOWARDS A RECONSTRUCTION OF THE RULE AGAINST PENALTIES USING THE ‘JUST COMPENSATION’ CRITERION
2023
Overview
This article postulates a two-step hybrid approach in the control of remedial clauses—eg, liquidated damages, forfeiture clauses, deposits, accelerated performance clauses, etc. It restates the imperatives for rethinking the strict enforcement of such terms. The currently prevailing strict approach is premised on the view that conditions prevailing at the time of contracting should shape the enforcement of such provisions. In place of that approach, it is proposed that the award and control of pre-determined remedies be parallel to the default common law rules that govern the judicial exercise for determining damages/compensation. In essence, this article argues for the reinstatement of a ‘just compensation’ standard in the control of such terms; notably, one that takes account of hindsight knowledge or information.
Publisher
National University of Singapore,Singapore Journal of Legal Studies
Subject
