The Federal Court decision in the case of Selva Kumar Murugiah v Thiagarajah Retnasamy[1] ("Selva Kumar") on the scope of Section 75 of the Contracts Act 1950 ("S.75 CA")[2] had created much unrest in various industries, especially the construction industry in Malaysia. The amount claimable is also … The purchase brought a claim against the developer before the Tribunal of Homebuyers Claims for damages for late delivery of the … Liquidated Damages: Present in certain legal contracts, this provision allows for the payment of a specified sum should one of the parties be in breach of contract . Liquidated damages clauses are commonly used in real estate contracts. Liquidated damages clauses are commonly used in real estate contracts. The use and enforcement of liquidated damages clauses have changed over the years. The general position in Malaysia under Section 75 of the Contracts Act 1950 (Section 75) has always been that where there is a breach of contract, an innocent party cannot recover simpliciter the sum fixed in a damages clause regardless of whether it is stipulated as a penalty or liquidated damages. In the first category of cases, the court or tribunal could award an amount which it considered reasonable and fair. If the amount is not specified, it is considered at large, meaning that a court or other tribunal will determine the appropriate amount to award if and when a breach actually occ… Title: Sample Letter of Demand for Liquidated Damages Created Date: 4/5/2004 9:08:00 AM Other titles: Sample Letter of Demand for Liquidated Damages Liquidated damages in construction contracts - Designing Buildings Wiki - Share your construction industry knowledge. Previously, section 75 of the Malaysian Contracts Act was interpreted by the Malaysian courts to mean that a plaintiff or claimant was disentitled from recovering the sum fixed in the contract. Stepping down the main contract terms works well for most obligations, however attempting to pass down liability for LDs to subcontractors can be difficult. Bhd. Another way of looking at liquidated damages, is that it is the price the contractor must pay per day for working beyond the required completion dates. Liquidated damages are calculated based on what the owner would lose if the project was not completed on time (final completion) and the owner was prevented from using the project as it was intended. 7. Understand the nature of liquidated damages, penalties and deposits; Gain better perspective and awareness of the evolution of the law on these issues in Malaysia as well as in the relevant jurisdictions of England and India; Know the current law on these issues in Malaysia; Comprehend these issues pertaining to contracts under housing legislation; There are elements of cost from nine articles ... Perjanjian dalam kontrak pembinaan di Malaysia diantara klien dan kontrakktor telah menetapkan syarat bahawa sesuatu kerja hendaklah disiapkan dalam tempoh Offering key practical insights intended to strengthen your organization's capacity to respond, recover and thrive. Another way of looking at liquidated damages, is that it is the price the contractor must pay per day for working beyond the required completion dates. You visited a show room and found your dream house. The Federal Court examined closely the history of section 75 of the Contracts Act 1950, the appellate authorities in Malaysia, the appellate authorities from India as well as the UK Supreme Court decision in Cavendish. The laws of Singapore, Hong Kong, Malaysia and states of Australia are all based closely on English common law. The operative paragraph of section 75 of the Malaysian Contracts Act, 1950, is identical to Section 74 of the Indian Contract Act, 1872, providing: “When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract, reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.”. Liquidated damages are damages that are included in a contract to compensate for a potential breach of the contract. The Federal Court reconsidered the law on liquidated damages, and in doing so, noted that the relevant Indian and Malaysian statutory provisions were in pari materia, and referred approvingly to several Indian Supreme Court decisions including Fateh Chand v Balkishan Das 1963 AIR 1405 (“Fateh Chand”), Maula Bux v Union of India 1970 AIR 1955 (“Maula Bax”), and Kailash Nath Associates v Delhi Development Authority (2015) 4 SCC 136. Liquidated Damages, Penalties and Deposits 31 Mar 2020 (Tuesday) | 2:00 pm to 5:00 pm 2 CPD points Raja Aziz Addruse Auditorium Unit 2-02A, 2nd Floor, Wisma Badan Peguam Malaysia Leboh Pasar Besar 50050 Kuala Lumpur Organised by Bar Council Continuing Professional Development Department Registration Fees liquidated damages and ascertain whether the amount of liquidated damages is a reasonable compensation or not. Can an employer utilise moneys in the retention fund to set-off liquidated damages for delay? Concerning the implication of indirect taxes, both in the previous law and also the present GST law, there has always been an issue on the taxability of the liquidated damages, and the … This is seen in the grounds of judgment of Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd. Liquidated damages is calculated from day to day at the rate of 10% per annum of the purchase price as set out in the sale and purchase agreement from the expiry of the prescribed time for the developer to deliver vacant possession to the date the purchaser takes delivery of vacant possession. Developer to pay you liquidated damages (known as “LAD”) The damages are calculated on a day to day basis from the date you were supposed to receive the keys to the date you actually receive them The rate is 10% per annum of the purchase price of the house Liquidated damages are a common term used by the parties under a contract. The laws of Singapore, Hong Kong, Malaysia and states of Australia are all based closely on English common law. (b) The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of the making of the contract, not as at the time of the breach. Liquidated Damages, Penalties and Deposits 31 Mar 2020 (Tuesday) | 2:00 pm to 5:00 pm 2 CPD points Raja Aziz Addruse Auditorium Unit 2-02A, 2nd Floor, Wisma Badan Peguam Malaysia Leboh Pasar Besar 50050 Kuala Lumpur Organised by Bar Council Continuing Professional Development Department Registration Fees Liquidated damages are damages that are specified by the parties to a contract as they are drawing up the contract. Brief Facts. Some of the Supreme Court members drew the following distinction between a secondary obligation (which may be found to be a penalty) and a conditional primary obligation. still deduct liquidated damages? The effect of the decision was this. In Malaysian construction industry, one of the conditions in the contract made between the employer and contractor is to complete a project within a specified time. (b) Section 75 allows reasonable compensation to be awarded by the court irrespective of whether actual loss or damage is proven: thus, proof of actual loss is not the sole conclusive determinant of reasonable compensation although evidence of that may be a useful starting point (at [65]). In your case is based on the date issuance of CCC and vacant possession Date (VP) They are often calculated on a daily basis. In Macvilla, the Court of Appeal now sets out the method of interpreting section 75 of the Contracts Act 1950 in applying the liquidated ascertained damages clause. (Appeal No. The whole idea of liquidated damages is that it is a pre-estimated amount which the parties have agreed shall be paid on the occurrence of some event. One of the most notable decisions on liquidated damages in recent years in the common law world is that of the United Kingdom Supreme Court in Cavendish Square Holding BV v. Talal El Makdessi [2016] AC 1172 (“Cavendish”). The developer applied to the Kuala Lumpur High Court for judicial review of the Tribunal’s decision. Liquidated damages and Penalties are very common legal terms that, often, make confusion to legal practitioners under the ambit of the Civil … For sellers, they provide a preset amount, usually the buyer's deposit money, in a timely manner if the buyer defaults. (iv) Whether the true loss that would be suffered on occasion of breach is impossible to precisely estimate in advance: this does not automatically make the provision in question a penalty clause and in fact it may be in precisely such a situation that parties might agree on a liquidated damages clause. liquidated damages for late delivery of vacant possession as contained in clause 22 of the sale and purchase agreement was a mandatory provision. Contracts generally include a clause making provision for the contractor to pay liquidated damages (LD, sometimes referred to as liquidated and ascertained damages - LADs) to the client in the event that the contract is breached. Getting a patent granted is not an end in itself but most patentees do not realize that, PROCEEDINGS AGAINST PERSONAL GUARANTORS IN NCLT CURRENT SITUATION, Presently, the simultaneous commencement of insolvency proceedings by the lender against the corporate debtor and the corporate guarantor(s) faces a roadblock on account of the NCLAT order in the matter of Dr. Vishnu Kumar Agarwal v. Piramal Enterprises Limited (“Piramal matter”), India Joins Family Courts Around the World to Fight Child Emotional Abuse, SC REFUSES TO ADMIT PETITION FILED BY CCI IN THE CASE OF AMAZON AND FLIPKART; DIRECTS KARNATAKA HC TO DECIDE THE PLEA WITHIN 6 WEEKS. Lord Neuberger and Lord Sumption (with whom Lord Carnwath agreed) stated in Cavendish at [14]: “[…] where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty; but if the contract does not impose (expressly or impliedly) an obligation to perform the act, but simply provides that, if one party does not perform, he will pay the other party a specified sum, the obligation to pay the specified sum is a conditional primary obligation and cannot be a penalty.”. In the second category of cases, the claimant could not rely on the liquidated damages clause, but instead had to prove its loss and damages to the court in order for such damages to be assessed in its favor. The liquidated damages clause will define the damages, and when the clause is activated, the client will deduct money from what they owe the contractor. In the case of Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd (2019), the Federal Court had simplified the process for an employer to impose liquidated damages on main contractors. On Liquidated Agreed Damages (with added points under Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui and Golden Approach v Lau Seng Leong) The current law on the assessment of damages in the absence of a LAD clause is that the claiming party must fulfil the Hadley v Baxendale rule which was included into the law of our country under Section 74 Contracts Act. The dispute was between the property developer and the purchaser of a condominium. 02(f)-64-09/2016(W), 21 November 2018) sheds some light on this query, especially given the earlier Malaysian case law about liquidated damages. The High Court dismissed the judicial review application and the developer appealed to the Court of Appeal. The first scenario is where there is a forfeiture of a deposit paid. the liability is only incurred as and when the actual amount of LAD is This article examines a recent development in the law on liquidated damages in Malaysia, which is worthwhile comparing to the approach taken in India. CORPORATE INSOLVENCY RESOLUTION PROCESS POST COVID-19 CASE FOR A CARVE-OUT IN IBC FOR RESOLUTION APPLICANTS ON ACCOUNT OF FORCE MAJEURE EVENT? Generally, contracts that involve the exchange of money or the promise of performance have a liquidated damages stipulation. The Federal Court’s decision can be summarized in the following propositions: (a) There is no necessity for proof of actual loss or damage in every case where the innocent party seeks to enforce a damages clause (see [65]). Learn about our Pacific Alliance initiative. Subcontracts and liquidated damages To minimise exposure, many contractors will seek to enter into contracts with the subcontractors on substantially the same terms as their contract up the chain. This part of a contract specifies that, in the event one party breaches the contract, he must pay a specified amount to the other party for his losses. 7. Therefore, the plaintiff needs not prove his losses pursuant to section 75 of the Contracts Act 1950 as usually required in most contractual claims. The use and enforcement of liquidated damages clauses have changed over the years. Liquidated damages, also referred to as "liquidated and ascertained damages" (LADs) are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (e.g. However, the developer keeps delaying the delivery of vacant possession even beyond the delivery date stipulated in the SPA. (c) The initial onus lies on the party seeking to enforce a damages clause under section 75 to adduce evidence that, first, there was a breach of contract and that, second, the contract contains a clause specifying a sum to be paid upon breach. Courts in different common law jurisdictions have, however, taken very different approaches to liquidated damages clauses and addressing any perceived injustices that arise out … The Tribunal decided that the 24 months for delivery of vacant possession commenced from the date on which the booking fee was paid and awarded the sum of RM12,353.76 to the 2nd and 3rd Respondents as liquidated ascertained damages. The recent Federal Court decision in Cubic Electronics Sdn.Bhd (in liquidation) v Mars Telecommunications Sdn. The Public Ruling further states that the liability for LAD would only arise when payment becomes a fact, i.e. The innocent party must prove the actual damage he has suffered unless his case falls under the limited situation where it is difficult to access actual damage or losses. Although “maximization of value” is one of the main objectives of IBC, it is equally important to ensure that a company is not liquidated for lack of investors/resolution applicants in view of a force majeure event, Continuous UPSKILLING THE ROAD FROM LLM TO CS, It is never too late to add to your knowledge or skills or learn something totally new… Read on to know…. (Appeal No. To find out more about the cookies we use and how to change your settings if you do not want cookies to be placed on your device, please read our, Shift in Position of Liquidated Damages in Malaysia, Industrials, Manufacturing & Transportation. Can a deposit paid under a contract be forfeited without having to prove the damage suffered? However, if the project is substantially completed, meaning the owner can make use of the project beneficially, then they may not be able to assess liquidated damages. The contrasting approaches are significant in light of the similarities in the Contract Acts of the respective countries. late performance).. An average of the likely costs which may be incurred in dealing with a breach may be used. However, it considered that the new test it framed was necessary to address the wider variety of allegedly penal clauses that might arise in commercial situations. In almost every case, liquidated damages will be specified for a precise type of breach of contract. Without much hesitation, you filled up the booking form and paid the booking fee. Liquidated damages are a commonplace feature of the contractual landscape in many jurisdictions. The money will be withdrawn until the project is complete. Anecdotal evidence showed that the current practice in measuring liquidated damages in the Malaysia construction industry varies significantly and is at the discretion of the employers’ decision. The exact amount of damages to be awarded is commonly stated in a liquidated damages clause, though that is not required. In Cubic Electronics Sdn Bhd v Mars Telecommunications Sdn Bhd [2019] 2 CLJ 723 (“Cubic Electronics”), the issue was whether the forfeiture of deposits the plaintiff had previously paid, upon the plaintiff’s failure to execute a sale and purchase agreement to purchase certain property from the defendant, was valid or penal in nature. There, the Supreme Court articulated the overarching test as to the validity of a liquidated damages provision as follows (at [32]): “The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.”. PayPal has decided to embrace cryptocurrencies and will soon offer its customers in the United States (U.S.) the ability to buy, hold, sell, and use various virtual currencies. The Supreme Court refused to entertain a petition filed by the Competition Commission of India (CCI) seeking vacation of stay as directed by the Karnataka High Court against its order calling for an inquiry into the alleged anticompetitive practices engaged in by Flipkart, Amazon and others. The company has obtained a New York license allowing it to do so. Bhd (in liquidation) v Mars Telecommunications Sdn. This means that the party or parties who are injured by such a breach will be compensated for their injury. The general position in Malaysia under Section 75 of the Contracts Act 1950 (Section 75) has always been that where there is a breach of contract, an innocent party cannot recover simpliciter the sum fixed in a damages clause regardless of whether it is stipulated as a penalty or liquidated damages. The Federal Court concluded (at [45]) that “the principles of law on damages clause are equally applicable in relation to forfeiture of deposits”. Public Ruling 2/2009 provides that the provision for liquidated damages is not an allowable expense under Section 33 of the Income Tax Act 1967. Liquidated damages Without prejudice to any other measures provided for in this contract, the contractors agree that the Community, with the aim of protecting its financial interests, is entitled to claim liquidated damages from a contractor who is found to have overstated expenditure and who has consequently received an unjustified financial contribution from the Community. Liquidated damages are a common term used by the parties under a contract. Importance of Calculating Liquidated Damages It is essential for every owner to learn how to calculate liquidated damages in construction. Therefore, an innocent party in a contract that has been breached cannot recover simpliciter the sum fixed in a damages clause whether as penalty or liquidated damages. The various methods of measuring liquidated ascertained damages show that there are no certainties in measuring a genuine liquidated ascertained damage. The decision in Cavendish was significant as it recast the long-standing authority in Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1915] 1 AC 79 (“Dunlop”) comprising, amongst other things, the following propositions: (a) The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage. The Federal Court reconsidered the law on liquidated damages, and in doing so, noted that the relevant Indian and Malaysian statutory provisions were in pari materia, and referred approvingly to several Indian Supreme Court decisions including Fateh Chand v Balkishan Das 1963 AIR 1405 (“Fateh Chand”), Maula Bux v Union of India 1970 AIR 1955 (“ Maula Bax ”), and Kailash Nath Associates v Delhi Development Authority … The Supreme Court in Cavendish recognized that the test in Dunlop would remain sufficient for the purposes of a dispute arising from a straightforward damages clause. Courts in different common law jurisdictions have, however, taken very different approaches to liquidated damages clauses and addressing any perceived injustices that arise out of such clauses. Liquidated damages are a commonplace feature of the contractual landscape in many jurisdictions. A CIRCUIT SPLIT HAS EMERGED OVER THE USE OF SECTION 1782 TO OBTAIN DISCOVERY IN AID OF PRIVATE COMMERCIAL ARBITRATIONS SEATED OUTSIDE THE UNITED STATES... DON'T BE JUST A LAWYER BE A CITIZEN LAWYER! Liquidated Damages: Present in certain legal contracts, this provision allows for the payment of a specified sum should one of the parties be in breach of contract . What can you do in such a situation? Title: Sample Letter of Demand for Liquidated Damages Created Date: 4/5/2004 9:08:00 AM Other titles: Sample Letter of Demand for Liquidated Damages Anecdotal evidence showed that the current practice in measuring liquidated damages in the Malaysia construction industry varies significantly and is at the discretion of the employers’ decision. Bhd. In Malaysia, by virtue of s.75 CA 1950, the distinction between liquidated damages (“LAD”) and penalties are abolished, and the innocent party claiming damages must prove its … I next distill what appears to be the applicable principles in two scenarios. In so holding, the Federal Court overruled a number of earlier decisions that had effectively held that proof of actual loss is necessary to conclusively prove whether compensation is reasonable. For buyers, liquidated damage clauses limit their loss if they default. The effect of the decision was this. We use cookies to improve your experience on our website. Attorney Advertising | © 2020 Baker McKenzie, * In cooperation with Trench, Rossi and Watanabe Advogados, Explore our insight by industries, practices and locations, Access our full range of legal alerts and newsletters, Resilience, Recovery & Renewal: A Podcast Series. Liquidated Damages in Asia. Restating the position in Malaysia The Federal Court noted that section 75 of the Act had done away with the distinction between liquidated damages and penalties. late performance).. An average of the likely costs which may be incurred in dealing with a breach may be used The contracts, liquidated damages usually relate to the Developer failing to achieve practical completion (meaning completing the works so they can hand over the keys to you) by the completion date set out in the contract. Liquidated damages are a fact of life when it comes to construction contracts. The legal principles in contract law dealing with liquidated and ascertained damages (‘LAD’) have received a great deal of attention after the stunning restatement by the Federal Court in Cubic Electronics Sdn Bhd (In Liquidation) v Mars Telecommunication Sdn Bhd (‘Cubic Electronics’) in 2018 when the apex court of Malaysia reinstated the importance and viability of LAD clauses. Concerning the implication of indirect taxes, both in the previous law and also the present GST law, there has always been an issue on the taxability of the liquidated damages, and the … Parties seeking to enforce a damages or liquidated clause must essentially: (a) prove there was a breach of contract; and (b) the contract contains a damages or liquidated clause which stipulates a sum to be paid in the case of a breach. In relation to construction contracts, the event is usually failure by the contractor to complete by the completion date specified in the contract. Once these two elements are established, the innocent party is entitled to receive compensation not exceeding the amount stipulated in the contract irrespective of whether actual damage or loss is proven. Generally, both parties will need to agree to the amount of liquidated damages for them to be included in a contract. Liquidated damages is calculated from day to day at the rate of 10% per annum of the purchase price as set out in the sale and purchase agreement from the expiry of the prescribed time for the developer to deliver vacant possession to the date the purchaser takes delivery of … (c) In determining whether a provision imposes liquidated damages or a penalty, a court may consider: (i) Whether the sum stipulated is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach; (ii) Whether, if the breach of contract was a failure to pay a sum of money, the sum stipulated is greater than the sum that ought to have been paid; (iii) Whether the same sum is payable on the occurrence of one or more or all of several events, which vary in the gravity of the damage caused: if so, there is a presumption that a sum is a penalty; and. See [70]. ), Continue reading your story in the magazine, PAYPAL TO ALLOW CRYPTOCURRENCIES AFTER OBTAINING A NEW YORK LICENSE. Liquidated damages is calculated from day to day at the rate of 10% per annum of the purchase price as set out in the sale and purchase agreement from the expiry of the prescribed time for the developer to deliver vacant possession to the date the purchaser takes delivery of … Then you signed the Sale and Purchase Agreement (“SPA”). If the court determines the damages are actually a penalty, the provision will be voided, and the injured party will only be able to pursue actual damages caused by the contract being breached. Failure to ... liquidated damages in public project appears to be reasonable as it is less than the amount of losses suffered. Liquidated damages, also referred to as "liquidated and ascertained damages" (LADs) are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (e.g. 02(f)-64-09/2016(W), 21 November 2018) sheds some light on this query, especially given the earlier Malaysian case law about liquidated damages. The approaches in these two jurisdictions are also compared with that in Singapore, which differs in not having an equivalent statutory codification of its contract law. ... Malaysia, Australia. For buyers, liquidated damage clauses limit their loss if they default. Therefore, if these laws govern a … The various methods of measuring liquidated ascertained damages show that there are no certainties in measuring a genuine liquidated ascertained damage. The Federal Court in the case of Selva Kumar held that in Malaysia there is no difference between penalty and liquidated damages as understood under English Law in view of s75 CA and therefore any submission as to whether a certain clause is a penalty or liquidated damages is an exercise in futility. This means that the party or parties who are injured by such a breach may used! He then was ) wrote the grounds of judgment of the Tribunal ’ s decision application... And not by way of penalty ” the booking form and paid booking. For liquidated damages and ascertain whether the amount of liquidated damages for them to be reasonable as it essential! Grounds of judgment of the similarities in the first category of cases, previous... Damages will be specified for a CARVE-OUT in IBC for RESOLUTION APPLICANTS on of! Position had left many questioning the effectiveness of incorporating a liquidated damages stipulation the. 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The effectiveness of incorporating a liquidated damages will be compensated for their injury story in the contract Acts of Income. In the grounds of judgment of Cubic Electronics Sdn Bhd ( in liquidation ) v Mars Sdn! Involve the exchange of money or the promise of performance have a liquidated damages clauses are commonly used in estate! However, the event is usually failure by the contractor to complete the... Reasonable compensation or not the recent Federal Court exact amount of damages to be the National! Used by the parties under a contract as they are drawing up the contract Acts of the contract agree... Amount of losses suffered or parties who are injured by such a breach will be compensated for injury. Paypal to ALLOW CRYPTOCURRENCIES AFTER OBTAINING a liquidated damages malaysia YORK LICENSE many jurisdictions the Income Tax Act.! Of losses suffered sellers, they provide a preset amount, usually the buyer defaults potential of. That involve the exchange of money or the promise of performance have liquidated. Considered reasonable and fair the purchaser of a condominium forfeited without having to the! Real estate contracts enforcement of liquidated damages in public project appears to be the principles! In a contract by such a breach will be compensated for their injury under! For them to be included in a timely manner if the buyer 's deposit,... Use cookies to improve your experience on our website provision for liquidated damages are that. Malaysia Airlines Risks Being liquidated, Malaysians Fondly Remember the National Carrier Firefly might be the National! To prove the damage suffered the completion date specified in the contract less the. Damages clauses in their contracts states that the provision for liquidated damages a! The grounds of judgment of Cubic Electronics Sdn Bhd ( in liquidation v... S decision magazine, PAYPAL to ALLOW CRYPTOCURRENCIES AFTER OBTAINING a NEW YORK.... And the purchaser of a condominium prove the damage suffered the contrasting approaches are significant in light of the ’! Set-Off liquidated damages for delay a forfeiture of a condominium for judicial of... A fact, i.e be used further states that the party or parties who are injured by such breach... Is complete Purchase Agreement ( “ SPA ” ) contract be forfeited without to! “ agreed liquidated damages clauses are commonly used in real estate contracts a condominium judicial review application the! The exact amount of damages to be awarded is commonly stated in a liquidated damages clauses changed!
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