Under common law, when is a liquidated damages clause typically unenforceable?

• A. Will always be enforced regardless of purpose.
• B. Is only enforceable if written.
• C. Will not be enforced if its purpose is to punish the wrongdoer rather than compensate the injured party.
• D. Cannot be used in breach scenarios.

Answer: (C)

Liquidated damages work best when they act as a fair pre-estimate of actual losses, not as a punishment. Under common law, a clause is typically unenforceable if its purpose is to punish the breaching party rather than to compensate the injured party. When the amount serves as a penalty—designed to deter breach by imposing a harsh, non-ractual sum—the court won’t enforce it. The idea is that damages should be tied to the harm caused, or at least a reasonable forecast of such harm made at the time the contract is formed. If the clause is a genuine attempt to pre-estimate losses and isn’t punitive, courts are more likely to enforce it.

That’s why other statements don’t fit: a liquidated damages clause isn’t automatically enforceable regardless of purpose; it doesn’t have to be written to be enforceable in every case (only the contract itself must meet applicable formalities); and such clauses are a common remedy for breach, not something that cannot be used in breach scenarios.