Penalty Clauses as Remedies: Exploring Comparative Approaches to Enforceability

Touro Law Review Touro Law Review

Volume 29 Number 3 Article 11

2013

Penalty Clauses as Remedies: Exploring Comparative Approaches Penalty Clauses as Remedies: Exploring Comparative Approaches

to Enforceability to Enforceability

Jack Graves

Touro Law Center

, jgraves@tourolaw.edu

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681

PENALTY CLAUSES AS REMEDIES:

EXPLORING COMPARATIVE APPROACHES TO

ENFORCEABILITY

Jack Graves

Commercial agreements often provide for “fixed sums” pay-

able upon a specified breach. The common law distinguishes be-

tween provisions for “liquidated damages” and “penalty” clauses,

enforcing the former, while invalidating the latter as punitive. In

contrast, such agreements are generally enforced in civil law juris-

dictions, without any distinction between liquidated damages and

penalties—though they may be reduced if excessive, even as penal-

ties. In contrast, this same split between the civil and common law

jurisdictions can be found in the treatment of specific relief, with the

former presumptively granting such “ordinary” relief, subject to a

narrowly cabined set of exceptions, and the latter granting such relief

only under certain limited “extraordinary” circumstances.

In a recent article, I suggested that the validity of “fixed

sums,” as “penalties,” was an issue not governed by the United Na-

tions Convention on Contracts for the International Sale of Goods

(the “CISG”) and, instead, left to otherwise applicable domestic law.

In doing so, I pointed to the relationship under the civil law between

the ordinary right to specific performance and the general enforcea-

bility of penalties, in arguing that the treatment of one under the

CISG suggested a general principle informing the proper treatment

of the other under that same body of law. Interestingly, however, Is-

raeli law takes a unique combined approach to these two remedies:

specific performances and fixed sums (or “agreed compensation” as

termed under Israeli law).

Israeli law seemingly follows a civil law

Professor of Law, Touro College Jacob D. Fuchsberg Law Center, NY, USA.

Editor’s Note: The following article has been adapted with additional commentary and

concepts from Jack Graves, Penalty Clauses and the CISG, 30 J.L. & COM. 153, 153 (2012).

Yehuda Adar & Gabriela Shalev, The Law of Remedies in a Mixed Jurisdiction: The Is-

raeli Experience, 23 TUL. EUR. & CIV. L.F. 111, 134 (2008).

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approach to specific performance, while following the common law

approach to agreed compensation in the form of fixed sums.

This

paper examines the “mixed” nature of the Israeli approach to reme-

dies and then asks if this examination might shed any further light on

the logic (or lack thereof) of the common law distinction between liq-

uidated damages and penalties.

I. INTRODUCTION

Contracts often provide for payment of “fixed sums” upon a

specified breach.

Such terms may serve a broad variety of purpos-

es.

However, most such purposes will focus on one of three basic

objectives: (1) good faith estimation of damages likely to be caused

by the specified breach; (2) coercion of performance by requiring, in

the event of non-performance, the payment of a fixed sum that ex-

ceeds any reasonable estimate of actual damages; or (3) limitation of

damages by fixing a sum less than any reasonable estimate of actual

damages.

This article will focus on the distinction between the first

two objectives—the estimation of actual damages, as contrasted with

coercion of performance through the threat of a penalty for non-

performance. In the discussion that follows, and consistent with

common practice,

I will use the term “liquidated damages” clause to

refer to a “fixed sum” intended as a good faith estimate of actual

damages, while I will use the term “penalty clause” to refer to a puni-

tive “fixed sum” intended to deter breach beyond the effect provided

by the standard monetary “expectation” remedy for breach.

Liquidated damages clauses in commercial agreements are

generally enforceable in all legal systems.

In contrast, penalty

clauses are generally enforceable in civil law systems,

but have his-

Id.

See, e.g., JOHN EDWARD MURRAY, JR., MURRAY ON CONTRACTS § 125(A) (2001).

See, e.g., E. ALLAN FARNSWORTH, CONTRACTS § 12.18 (4th ed. 2004).

MURRAY JR., supra note 3.

See, e.g., MURRAY, JR., supra note 3, § 125(A)(1); FARNSWORTH, supra note 4 (discuss-

ing liquidated damages in terms of penalties and remedies).

INGEBORG SCHWENZER AND PASCAL HACHEM, SCHLECHTRIEM & SCHWENZER:

COMMENTARY ON THE UN CONVENTION ON THE INTERNATIONAL SALE OF GOODS (CISG) para.

44, at 93 (Ingeborg Schwenzer ed., 3d ed. 2010); Pascal Hachem, Fixed Sums in CISG Con-

tracts, 13 VINDOBONA J. INT’L COM. L. & ARB. 217, 220 (2009) [hereinafter Hachem, Fixed

Sums].

Hachem, Fixed Sums, supra note 7, at 220 (explaining that while a penalty clause may

be reduced, as “excessive” under most civil law regimes, such a reduction is very different

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2013] PENALTY CLAUSES AS REMEDIES 683

torically been deemed invalid under the common law based on their

coercive nature and punitive effect when enforced.

This same split

between the civil and common law jurisdictions can be found in the

treatment of specific relief, with the former presumptively granting

such relief, subject to a narrowly cabined set of exceptions, and the

latter granting such relief only under certain “extraordinary” circum-

stances.

These two distinct doctrinal splits arguably focus on the

same basic philosophical difference between the common and civil

law approaches to the enforcement of a promise—the common law

generally seeks to give effect to the economic value of the promise

while the civil law generally seeks to give effect to the promise itself.

Interestingly, however, Israeli law takes a unique combined approach

to these two remedies: specific performances and fixed sums (or

“agreed compensation” as termed under Israeli law)—seemingly fol-

lowing a civil law approach to the former and a common law ap-

proach to the latter.

This article begins with a very brief comparison of the manner

in which common and civil law systems treat penalty clauses and the

remedy of specific performance.

It then examines the apparently

“mixed” nature of the Israeli approach in addressing these two reme-

dies and asks if this difference in approach might shed any further

light on the logic (or lack thereof) of the common law distinction be-

tween liquidated damages and penalties.

II. COMPARATIVE LEGAL TREATMENT OF PENALTY CLAUSES

AND THE REMEDY OF SPECIFIC PERFORMANCE

The treatment of penalty clauses is fundamentally different, as

between civil and common law legal systems. A penalty clause is

generally enforceable under the civil law, while it is not enforceable

under the common law.

Moreover, the same theoretical underpin-

from the common law approach to invalidating penalty clauses, which abhors any penalty).

FARNSWORTH, supra note 4 (explaining the common law as limiting fixed sums to those

that are “compensatory” in nature—in contrast, by implication, to those that are “punitive” in

nature).

Franco Ferrari, What Sources of Law for Contracts for the International Sale of Goods?

Why One Has to Look Beyond the CISG, 25 INT’L REV. L. & ECON. 314, 337 (2005).

Adar & Shalev, supra note 1.

See discussion infra Part II.

See discussion infra Part III.

See discussion infra Part II-A.

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nings of these different approaches to penalty clauses can also be

found in the two legal systems’ different approaches to the remedy of

specific performance.

A. Penalty Clauses

The civil law generally enforces fixed sums, whether intended

to approximate damages or to deter breach.

Thus, a fixed sum in-

tended as a “penalty” will typically be enforced. While a court may

adjust the amount of a “penalty” it considers excessive, the fact that

the “penalty” tends to deter breach does not, itself, preclude enforce-

ment.

The prominent issue is the amount of the penalty and wheth-

er that amount is deemed excessive.

Like civil law, the common law also grants contracting parties

substantial autonomy in defining their respective rights and obliga-

tions.

However, their autonomy in defining remedies for breach is

subject to certain limits, including limits on “fixed sums” payable in

the event of breach.

A sum fixing an amount or method of deter-

mining “liquidated damages” is enforceable, while a sum fixing a

“penalty” intended to deter breach is void.

In view of the fact that most civil law regimes provide some

limits on the amount of a penalty clause, one might be tempted to

suggest a similarity between the civil and common law approach in

that each in some fashion restricts the parties’ autonomy with respect

to a contractually agreed upon fixed sum. However, the two systems

take fundamentally different approaches to justifying such re-

strictions, thus exposing the difference in their basic underlying prin-

See discussion infra Part II-B.

Pascal Hachem, Agreed Sums in CISG Contracts, 3 BELGRADE L. REV. 140, 141 (2011)

[hereinafter Hachem, Agreed Sums].

See id. at 141-42, 145-46 (discussing the history of civil law’s broad acceptance of

fixed sums).

Id. at 142.

See, e.g., U.C.C. § 2-301 (McKinney 1962) (defining the general obligation of buyers

and sellers as simply to comport with the terms of the contract). This article does not purport

to provide a complete survey of common law legal regimes or any nuanced differences

among them in the treatment of “fixed sums.” Instead, United States common law, as well

as its reflection in UCC Article 2, is used here as exemplary of the common law approach to

the issue.

See, e.g., UCC §2-718(2)(3) (2011) (providing statutory limits on the parties’ contrac-

tual rights to limit or exclude certain remedies).

FARNSWORTH, supra note 4.

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ciples.

Unlike the civil law, the common law abhors any penalty—

irrespective of the amount.

The parties to a contract may stipulate in advance to a speci-

fied amount or methodology for determining damages in the event of

a specified breach. As long as the amount represents a reasonable ef-

fort to ascertain in advance or “liquidate” damages that might other-

wise be uncertain or difficult to prove, the provision will be enforce-

able as “liquidated damages.”

Such clauses offer substantial utility

in providing a remedy in the event of breach while retaining the basic

common law focus on “compensatory” rather than “punitive” damag-

es for breach of contract.

In contrast, a “penalty” clause requires

payment of fixed amount that is inconsistent with this same basic ap-

proach.

A “penalty” clause goes beyond compensating the aggrieved

party for its promissory loss and has the further effect of deterring

breach and compelling performance.

This is known as the “in

terrorem” effect of a penalty clause and is, in fact, the intent of such a

clause.

This deterrent effect is inconsistent with the fundamental

remedial approach of the common law focus on redressing breach

through damages—but not compelling performance.

Moreover, it

would be unjust to “punish” a party based on what is essentially a

“strict liability” standard for breach of contract.

Common law dam-

ages are intended to be, in effect, neutral as between performance and

payment of damages for non-performance.

This common law hos-

Id.

FARNSWORTH, supra note 4.

Id.

RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 149 (8th ed. 2011).

XCO Int’l, Inc. v. Pacific Scientific Co., 369 F.3d 998, 1001-02 (7th Cir. 2004); Charles

J. Goetz & Robert E. Scott, Liquidated Damages, Penalties and the Just Compensation

Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach, 77

COLUM. L. REV. 554, 560-61 (1977).

See Goetz & Scott, supra note 29, at 558 (explaining the indifference between perfor-

mance and payment of damages is often referred to as the “indifference principle”); see also

Hachem, Agreed Sums, supra note 16, at 221. Hachem suggests that the value of a party’s

right to specific performance must be accounted for in applying this principle, thereby justi-

fying the use of a penalty intended to deter breach. However, this mixes the civil law right

to such performance with a common law principle based on the damages as the normal rem-

edy. The civil law right to performance and the right to enforce a penalty clause go hand-in-

glove—just as the common law preference for damages and the invalidity of a penalty

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tility towards penalty clauses originated in courts of equity, which by

the end of the seventeenth century were no longer willing to enforce

the historical “penal bond,”

sending the parties instead to courts of

law for a determination of actual monetary damages.

Today, the

common law renders a penalty clause generally unenforceable, and,

in the case of United States law governing the sale of goods, deems

such a penalty “void.”

Notably, the parties to a contract may accomplish some of the

same objectives as those they might seek to accomplish through a

penalty clause by framing the fixed sum due as a contractual perfor-

mance obligation instead of a remedy for breach. For example, a bo-

nus that gives significant incentives for performance would likely be

fully enforceable, whereas a penalty for non-performance would not.

A fixed sum may also fairly be characterized as one of two “alterna-

tive performances,” in which case the promised contractual obliga-

tion to pay the amount due is likely to be enforced.

One might be tempted to point to these examples in suggest-

ing that the common law treatment of fixed sums is more about form

than substance. However, there is a critical difference between the

above contractual promise to pay money as a performance obligation

and a “penalty” clause triggered by a breach. The former involves

the parties’ rights and obligations, while the latter involves a remedy

for breach sought from a court or arbitral tribunal after the parties’

agreement has run aground on the rocks of an intractable dispute.

When parties negotiate a contract, they typically focus far more on

their performance “rights and obligations” than on “remedies” in the

event of breach. Parties expect to perform—not to breach—so their

exercise of autonomy with respect to the former arguably deserves

greater deference than the latter.

The common law approach to penalties has unquestionably

clause.

See generally WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE (Barbara A. Mowat

& Paul Werstine eds., Wash. Square Press 1992) (illustrating possibly the most famous “pe-

nal bond” was that of Antonio’s promise of a “pound of flesh” to Shylock in the event of de-

fault on his promise to repay 300 Ducats); see also 1 STEWART MACAULEY, ET AL.,

CONTRACTS: LAW IN ACTION, THE INTRODUCTORY COURSE 107 (3d ed. 2010) (discussing the

“pound of flesh” and The Merchant of Venice in connection with penalty clauses).

MURRAY, JR., supra note 3, § 125(A)(1); FARNSWORTH, supra note 4.

U.C.C. § 2-718(1) (2011).

See JOSEPH M. PERILLO, CALAMARI AND PERILLO ON CONTRACTS § 14.34 (6th ed. 2009).

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2013] PENALTY CLAUSES AS REMEDIES 687

been subject to substantial criticism by both courts

and commenta-

tors.

However, its continued application by the courts—in spite of

such criticism—also proves its continuing vitality as domestic United

States law.

The most common modern justification for the rule is

based on the theory of “efficient breach.” In effect, society as a

whole may be better served by a breach. If so, as long as the ag-

grieved party receives monetary damages compensating for its expec-

tation loss, breach will be more efficient than performance.

Critics argue that the “efficient breach” theory is flawed, both

as a matter of business reality and economic theory. Contrary to the

traditional theory of “efficient breach,” a penalty clause deterring

breach may actually be more efficient, because this will simply lead

the parties to negotiate and share the economic fruits of the contem-

plated breach.

However, this ignores the very real challenges in-

herent in negotiating in the context of what is essentially a bilateral

monopoly,

as well as the potential economic interests of third par-

ties in an efficient breach.

Critics of the common law approach also often argue in favor

of the “utility” of penalty clauses by pointing to various forms of

damages that are difficult to calculate or prove.

However, these ar-

guments fail to recognize that a true “liquidated damages” provision

addresses the same issue and is fully enforceable, as such. One of the

primary purposes of a “liquidated damages” clause is to provide for

damages that are difficult to calculate or prove. In contrast, a true

“penalty” clause is intended to deter a breach, rather than remedy

such a breach.

The above analysis is exemplary only and is not intended to

be exhaustive or to suggest that the common law approach is neces-

XCO Int’l, Inc., 369 F.3d at 1001-02; Lake River Corp. v. Carborundum Co., 769 F.2d

1284, 1288-89 (7th Cir. 1985).

See Goetz & Scott, supra note 29; Kenneth W. Clarkson, et al., Liquidated Damages v.

Penalties: Sense or Nonsense, 1978 WIS. L. REV. 351 (1978).

See, e.g., XCO Int’l, Inc., 369 F.3d at 1002-03; Lake River Corp., 769 F.2d at 1289

(noting the departures from this standard approach in certain areas, such as insurance law);

Hachem, Agreed Sums, supra note 16, at 147 (explaining that these departures are sui gene-

ris and typically involve what is, essentially, a tort, such as bad faith breach of an insurance

contract).

XCO Int’l, Inc., 369 F.3d at 1001; see POSNER, supra note 28 (for a more thorough

analysis of the theory of an “efficient breach”).

See Goetz & Scott, supra note 29, at 567-68.

POSNER, supra note 28, at 78.

Id. at 160.

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sarily superior to that of the civil law. In fact, there is much to com-

mend each. The two key points, for purposes of this article, are that:

(1) the common law will not enforce a “penalty” clause, as such, and

that the reasons underlying this approach are reasonably defensible

and not wholly irrational; and (2) the civil law will, in contrast, en-

force a “penalty clause.”

B. The Remedy of Specific Performance

The difference between the civil and common law treatment

of penalty clauses is mirrored in the treatment of performance-based

remedies in the two legal systems. The civil law treats specific per-

formance as the ordinary remedy for breach, while the common law

treats specific performance as an extraordinary remedy.

The ordi-

nary civil law remedy focuses on the actual promises of the parties.

Subject only to a narrow set of exceptions, a party to a contract gov-

erned by civil law will have an ordinary right to specific enforcement

of its contracting partner’s actual promises.

In contrast, a party to a

contract governed by the common law will ordinarily be entitled only

to a “substitutional” remedy of money damages, absent a showing of

extraordinary circumstances justifying specific relief.

The common law approach to specific performance is based

on the same basic doctrinal underpinnings as its approach to penalty

clauses—the ordinary common law of remedies is neutral, as between

performance and payment of damages in compensation for non-

performance.

As in the case of penalty clauses, the common law’s

treatment of performance-based remedies reflects a general “econom-

ic” approach to remedies.

In contrast, the civil law focuses on the

“promissory” nature of a contract—whether enforcing a promise to

pay a fixed sum in the event of a defined breach (even if it amounts

to a “penalty”) or any other contractual promise.

If a party refuses to perform a contractual promise, a civil law

See Ferrari, supra note 10, at 336-37.

MURRAY, JR., supra note 3, § 127(A).

Id.

See XCO Int’l, Inc., 369 F.3d at 1001 (explaining that the doctrine of efficient breach

drives not only the common law approach to penalties, but also the common law treatment of

damages, as the normal remedy, and specific relief, as extraordinary).

See MURRAY, JR., supra note 3, § 127 (noting the civil law’s inclination to compel the

contract promise be fulfilled).

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2013] PENALTY CLAUSES AS REMEDIES 689

court will typically compel such performance.

Thus, it seems en-

tirely consistent to allow one of the parties to “compel” the other’s

performance through the use of a “penalty” clause. In contrast, a

common law court will not typically compel a party’s actual perfor-

mance, so it would seem inconsistent to give either of the parties such

a right.

Admittedly, a common law court may, under proper cir-

cumstances, order specific performance, as an extraordinary reme-

dy.

However, a discretionary and extraordinary award of specific

performance by a court of equity is far different from the grant of

power to one of the parties to compel performance through a penalty

clause.

In summary, we can see that the treatment of “penalty” claus-

es and the remedy of specific performance each rely on a single set of

core principles, and the differences between their “linked” or related

treatment in civil and common law systems arise from differing core

contract principles in each of these systems. Each of these relation-

ships was expressly recognized in Secretariat Commentary to the

CISG.

Thus, we would typically expect any given legal system to

(1) enforce “penalty” clauses and treat “performance” as the ordinary

remedy for breach; or (2) refuse to enforce “penalty” clauses and

treat “performance” as an extraordinary remedy—but not to mix the

two.

This leads us to an examination of Israeli contract law, which

does exactly the latter.

III. ISRAELI LAW AS A “MIXED” APPROACH TO REMEDIES

Israel’s legal system reflects a “mix” of common and civil law

principles.

However, one might reasonably expect Israeli law to

Id.

See id. (stating that “money damages is the normal common law remedy”).

Id.

See GLOBAL SALES LAW, http://www.globalsaleslaw.org/index.cfm?pageID=644#Article%2046

(last visited Feb. 10, 2013) (recognizing the Secretariat Commentary to the CISG in art. 46,

paras. 9-10).

See Ferrari, supra note 10, at 337 (recognizing that the decision whether or not to en-

force “penalty” clauses, especially in solving disputes governed by the CISG, specifically

Article 28, would depend on the law in the court’s jurisdiction because, according to the

CISG, if “one party is entitled to require performance of any obligation by the other party, a

court is not bound to enter a judgement [sic] for specific performance unless the court would

do so under its own law in respect of similar contracts of sale not governed by this Conven-

tion”) (internal quotation marks omitted) (quoting CISG, art. 28).

Adar & Shalev, supra note 1; Gabriela Shalev, Law of Contract, in ISRAELI BUSINESS

LAW: AN ESSENTIAL GUIDE 25, 25-26 (Alon Kaplan ed., 1996) [hereinafter Shalev, Law of

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follow either a common or civil law approach to both penalty clauses

and the remedy of specific performance, in view of the similar prin-

ciples that drive both. In this article, I note that Israeli law in fact

takes differing approaches to these two issues,

and then suggest that

these two differing approaches may be reasonably reconciled and that

this reconciliation may shed additional light on the common law’s

traditional disdain for penalties.

Having suggested a consistent ra-

tionale for this “mixed” approach to the two remedies at issue, I then

illustrate the point by reference to Shakespeare’s The Merchant of

Venice.

A. Israeli Law

When one party breaches a contract obligation, the aggrieved

party will ordinarily be entitled to require actual performance of the

contract.

This right to performance is limited only by four specific

statutory exceptions in cases of: (1) impossibility of performance; (2)

personal work or service; (3) a requirement of excessive supervision

of performance; or (4) circumstances in which a requirement of per-

formance would be unjust. The ordinary remedial presumption is,

therefore, one in which a court will require actual performance at the

request of an aggrieved contracting party. This approach to the basic

remedy of performance is fully consistent with civil law doctrine.

Unlike the common law, the civil law does not typically draw

a distinction between contract rights and remedies for breach of con-

tract.

Instead, a civil law “remedy” is simply another contract right

or entitlement.

Under this view, the court merely enforces the par-

ties’ basic entitlements, instead of seeking to remedy a breach or

“right a wrong” of some sort.

Importantly, however, the court re-

Contract].

See discussion infra Part III–1; see Adar & Shalev, supra note 1, at 111 (noting the

same mixed approach to the two remedies).

See discussion infra Part III-B.

See discussion infra Part III-C.

Contracts (Remedies for Breach of Contract) Law, 5731—1970 Dated 27th March

1971, in 1 LOUIS GARB, BUSINESS LAWS OF ISRAEL1.5-1, 1.5-1-1.5-3(Louis Garb, et al., eds.,

2d ed. 2002) [hereinafter GARB]; see also Adar & Shalev, supra note 1, at 140; Shalev, Law

of Contract, supra note 53, at 35.

Adar & Shalev, supra note 1, at 134; Shalev, Law of Contract, supra note 53, at 35.

Adar & Shalev, supra note 1, at 113.

Id. at 114.

Id. at 122.

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2013] PENALTY CLAUSES AS REMEDIES 691

tains a limited review function based on the four enunciated statutory

exceptions.

In view of its granting to the parties of an “ordinary” right to a

remedy of “performance,” one might reasonably expect Israeli law

similarly to enforce the parties’ attempt to ensure performance

through the use of a penalty clause. However, Israeli law takes a dif-

ferent path, following the general common law approach in eschew-

ing “penalties.”

When an aggrieved party seeks monetary damages, Israeli law

applies a “compensatory” approach much like that of the common

law.

The aggrieved party is entitled to “compensation for the dam-

age caused to him by the breach and its consequences and which the

person in breach foresaw or should have foreseen, at the time the

contract was made, as a probable consequence of the breach.”

Such

“compensation” may be agreed upon in advance (“agreed compensa-

tion”), in which case the aggrieved party shall be entitled to such

amount, without proof of actual damages. A court may, however,

“reduce the compensation if it finds that it was fixed without any rea-

sonable relation to the damage which could be foreseen, at the time

the contract was made, as a probable consequence of the breach.”

Thus, a court will not enforce “agreed compensation” if it is

not reasonably related to the actual amount of damages, as such dam-

ages would be calculated under the statute.

In other words, a court

will enforce an amount reasonably intended to “liquidate” damages in

advance, but will not enforce an amount that is intended as a “penal-

ty.”

This approach to “agreed compensation,” generally, and penal-

ties, specifically, is fully consistent with common law doctrine.

So, is this “mixed” civil and common law approach to these

two issues inconsistent, or can such a “mix” be reasonably recon-

ciled? The most obvious distinction between “performance,” as a

See discussion infra Part III-B.

Adar & Shalev, supra note 1, at 133-34.

Id.

GARB, supra note 57, para. 10, at 1.5-3.

Id. para. 15(a), at 1.5-4. Again, it is important to distinguish between a rule providing

for a reduction in a fixed sum that is excessive, as damages (the Israeli approach), and a rule

providing for a reduction in a fixed sum that is excessive, even as a penalty (the civil law

approach).

See PERILLO, supra note 34, §14.31.

Id. §14.31(c); GARB, supra note 57.

Adar & Shalev, supra note 1, at 133-34.

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remedy, and the use of a penalty to require that same performance is

the unique and important role of the court in the former. However,

there is arguably another crucial difference in the manner in which

the parties view expected performance obligations, as distinguished

from remedies for unanticipated breaches.

B. A Distinction with a Difference

Modern contract law grants sophisticated parties almost un-

limited autonomy in crafting their basic rights and obligations under a

contract.

However, the law is far more restrictive when it comes to

remedies, and there is a sound and obvious basis for the distinction.

The parties’ voluntary performance of their respective contractual ob-

ligations does not typically require the overt coercion of the state. In

contrast, remedies do ultimately rely on the enforcement power of the

state, and this power is often limited. The Israeli law governing spe-

cific performance is a perfect illustration of such limits.

While an aggrieved party is “ordinarily” entitled to “perfor-

mance,” the court may limit that right under the Israeli statute when

the circumstances suggest that requiring performance is fundamental-

ly unreasonable or unjust.

However, a party faced with a contract

provision mandating the payment of a “penalty” for non-performance

must perform or pay the penalty—assuming it is to be enforced.

The party’s dilemma of “performance or penalty” will not necessarily

be mitigated in the same way a court will exercise its judgment in de-

ciding whether or not to award a remedy of performance. Thus, the

Israeli statute regarding “agreed sums” can reasonably be explained

as limiting the parties to agreement on truly compensatory amounts

and reserving to the state the power to “compel” performance.

However, there is another, somewhat more subtle, distinction

that may also serve to justify the common law approach to penal-

ties—even in a system in which performance is the “ordinary” reme-

dy for breach. While most parties give significant consideration to

their contractual promises before undertaking those promises, far less

consideration is typically given to remedies to be invoked only in the

event of breach. At the time of contract, few parties—even sophisti-

See Michael Van Alstine, Consensus, Dissensus, and Contractual Obligation Through

the Prism of Uniform International Sales Law, 37 VA. J. INT’L L. 1, 36-41 (1996).

See infra Part III-A.

Adar & Shalev, supra note 1, at 133.

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2013] PENALTY CLAUSES AS REMEDIES 693

cated parties—ever believe they will breach.

C. The Merchant of Venice Revisited

An excellent illustration of the above-described phenomenon

can be found in Act 1, Scene III, of Shakespeare’s The Merchant of

Venice.

The scene opens with Shylock, a sophisticated lender, ne-

gotiating a loan with Antonio, a sophisticated merchant.

When

Shylock proposes a “pound of flesh,” as a bond in the event of Anto-

nio’s default (a classic “penalty” clause), Bassanio (the ultimate ben-

eficiary of the loan) immediately protests “you shall not seal such a

bond for me . . . .”

However, Antonio is undeterred by the onerous

penalty, explaining:

Why, fear not, man, I will not forfeit it!

Within these two months—that’s a month before

This bond expires—I do expect return

Of thrice three times the value of this bond.

It is simply beyond Antonio’s contemplation that he will de-

fault, so the punitive bond is ignored.

When Antonio seals the

bond, he does so in the firm and unwavering certainty that it will

never come due. Of course, the unthinkable transpires—all of Anto-

nio’s ships are lost, and he fails to repay the loan when due.

Did

Antonio actually consent to give Shylock a pound of flesh, or did An-

tonio simply assume that provision out of the contemplated bargain?

I would suggest that the latter is far more reflective of Antonio’s con-

scious intent.I am not suggesting that contract law should abandon

generally accepted rules of interpretation focusing on objective mani-

festations of intent when parties, in good faith, disagree over the con-

tent of their agreement. However, I would suggest that, in the vast

majority of contracts, neither party expects to breach its obligations.

Thus, when thinking about enforcing the parties’ actual bargain-in-

fact, it is quite objectively reasonable to distinguish between affirma-

tive promises of performance and advance agreements regarding

remedies for breach.

SHAKESPEARE, supra note 38, at act I, sc. III.

Id. at 31.

Id. at 37.

Id.

Id. at 39.

SHAKESPEARE, supra note 38, at 99-103.

Graves: Penalty Clauses as Remedies

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694 TOURO LAW REVIEW [Vol. 29

IV. CONCLUSION

All legal systems will enforce contractual rights and obliga-

tions to which parties effectively consent, even if the parties fail to

read the documents in which they are found. All legal systems will

also enforce a genuine estimate of damages in the event of breach—

even if the contracting parties did not expect such a breach—because

a genuine estimate of expectation damages serves as a functional

equivalent of the promised performance. However, a penalty is argu-

ably far beyond the parties’ actual expectations at the time of con-

tracting. As such, a reasonable case can be made that this distinction

justifies the common law difference in treatment between “liquidated

damages” clauses and “penalty” clauses, as remedies.

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