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Message: [QUOTE="Alsacs, post: 438658, member: 652"] [SIZE=4][FONT=times new roman] I am barred in NC. Here is how an impartial NC Judge will analysis it[/FONT][/SIZE] [SIZE=4][FONT=times new roman]1. Is it a "liquidated damages" clause or a "penalty"?[/FONT][/SIZE] [SIZE=4][FONT=times new roman]In determining whether a clause is reasonable, relevant factors include:[/FONT][/SIZE] [SIZE=4][FONT=times new roman] (1) whether the parties intended to provide for damages or a penalty;[/FONT][/SIZE] [SIZE=4][FONT=times new roman] (2) whether the injury was caused by the breach or is incapable of accurate estimate at the time of contract; and[/FONT][/SIZE] [SIZE=4][FONT=times new roman] (3) whether the stipulated damages were a reasonable forecast of the harm caused by the breach.[/FONT][/SIZE] [SIZE=4][FONT=times new roman]The first factor, the subjective intent of the parties, has little bearing on whether the clause is objectively reasonable. The second factor, or the "difficulty of ascertainment test," provides that the greater the difficulty of estimating or proving damages, the more likely the stipulated damages will be reasonable. The third factor measures the reasonableness of the parties' forecast by looking at the clause from the time of contracting and the time of breach.[/FONT][/SIZE] [SIZE=4][FONT=times new roman][COLOR=black]Rule of[/COLOR][COLOR=black] NC[/COLOR][COLOR=black] Law[/COLOR][COLOR=black] - [/COLOR]A stipulation for damages upon a future breach of contract can comprise a valid liquidated damages clause if the set amount is determined to be reasonable and the damages are difficult to ascertain.[/FONT][/SIZE] [SIZE=4][FONT=times new roman] Thus the issue becomes does the ACC gain more money by ACC breaching the K? and if so is a liquidated damages clause enforceable if it gives the ACC more money than it would have earned by Maryland performing the contract. Lookng at [/FONT][/SIZE][FONT=Arial][SIZE=4][FONT=times new roman] U.C.C. § 2-718, reasonableness is the only test of the validity of a liquidated damages clause. There are three criteria to measure reasonableness: (i) anticipated or actual harm caused by breach; (ii) difficulty of proving loss; and (iii) difficulty of obtaining an adequate remedy[/FONT][/SIZE].[/FONT] Thus, truthfully I don't like the ACC chances if this goes to Court because the ACC replaced Maryland TOO DAMN FAST. [/QUOTE]

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