defining expectancy damages as the amount necessary to compensate for what the non- breaching party “would [have] receive[d] if the contract were performed”—noting that expectancy damages limitation preserves efficient breach theory of contracts
How later courts described this case
- defining expectancy damages as the amount necessary to compensate for what the non- breaching party “would [have] receive[d] if the contract were performed”—noting that expectancy damages limitation preserves efficient breach theory of contracts
- noting that the two-pronged approach can be "cireular and subjective"
Written by the judges who cited it.
The opinion
DISTRICT COURT JUDGE LOREN TUCKER,
specially concurring.
¶74 I concur in the result reached by the Court but not in all of the reasoning.
¶75 By statute, liquidated damages are authorized in situations in which actual damages are difficult to determine. The liquidated damages provision is designed to bring certainty to uncertain circumstances. The parties to the contract are in the best position to make that determination. Neither a contracting party nor the Court should be allowed to recreate uncertainty after the fact by second guessing the agreed terms.
¶76 Whether the agreement is a contract of adhesion is an issue separate from whether the parties have agreed to liquidated damages. This issue need not be analyzed in every liquidated damages case. It should be considered only when raised by the pleadings.
¶77 For these reasons, I concur with the result reached by the majority.