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Liquidating damages clause

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Courts will often enforce liquidated damages clauses if the damages for breach of the contract will be difficult to estimate.

However, a court will not enforce a liquidated damages clause if the clause is unfair or awards an excessive amount of money.

"Financing agency" includes also a bank or other person who similarly intervenes between persons who are in the position of seller and buyer in respect to the goods under section 1302.81 of the Revised Code.

(7) "Between merchants" means in any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants.

(5) "Merchant" means a person who deals in goods of the kind or otherwise by the person's occupation holds the person out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by the person's employment of an agent or broker or other intermediary who by the agent's, broker's, or other intermediary's occupation holds the person out as having such knowledge or skill.

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As with any contract clause or agreement, liquidated damages clauses should be drafted and reviewed by a competent contracts lawyer who is familiar with the rules in the area.

Goods must be both existing and identified before any interest in them can pass.

Goods which are not both existing and identified are "Future" goods.

Basically, anytime damages are hard to anticipate and it is impossible to calculate how much a breached contract would cost, the parties would agree to set a fixed amount of damages in the contract so if one party does in fact breach the contract, the other party can collect that amount of damages previously agreed upon.

The court will generally enforce the liquidated damages clause if the amount is reasonable and the damages are actually hard to prove.