damages re. security stovegreenspun.com : LUSENET : Lessig's Contracts : One Thread
i think that, while defendat american ry. express was on notice of the importance of the delivery to plaintiff, they were not on notice that the injury would have been so great and the damages would have been fully borne by them. which amounts to say that notice of importance does not seem to constitute a direct link to the intention of the parties at the time when they entered into the contract. relevantly, i believe that defendant would not have accepted the contract if it had contained a clause to the effect that every piece was of such vital importance that misdelivery of any of them made defendant liable for all the expenses incurred in conjunction with the exposition.
in light of this and similar cases, why is there not a bigger incentive to liquidate damages in the contract, despite the cost of such a procedure? this method would take care of much litigation and would amek the parties better informed of whether they are willing to enter into the contract. (i.e., as kronman's article suggested, parties who do not at all expect to breach would have no problem liquidating damages in this way, and those who do would offer a lower contract price or decide not to enter into the contract or something. but everyone would be clearer)
-- Anonymous, October 27, 1998