What is the maximum limit of contract liquidated damages?

I Contract liquidated damages What is the maximum limit?

According to《 contract law 》The provisions of Article 114, Liquidated damages The excessive comparison standard is the actual loss of the observant party. As mentioned above, the actual loss includes direct loss and loss of performance interest. The Supreme People's Court Commercial Housing Sales Contract The provisions of Article 16 of the Interpretation of Several Issues Concerning the Application of Law to Disputed Cases shall be adjusted to 130% of the actual loss in principle to reflect the punitive nature of liquidated damages. The law does not clearly stipulate the maximum limit of liquidated damages guarantee law 》Interpretation of Several Issues Article 121 provides that "the parties agree Deposit If the amount exceeds 20 percent of the subject matter of the main contract, the people's court shall not support the excess. "

2、 Other legal provisions

The legislative changes of the Contract Law on liquidated damages mainly include the following four points.

The first point is Article 114 of the Contract Law. The parties agreed on the liquidated damages in advance. When one party breaches the contract, it should pay a certain amount of money to the other party. The issue of agreement is very complicated, but I will mainly talk about some changes in liquidated damages in the new Contract Law. What changes does the new Contract Law have in terms of liquidated damages compared with the original one? The first change is the contract statute Liquidated damages must be agreed, and legal liquidated damages are not recognized, because before the new contract law, we always had legal liquidated damages. Therefore, the judge can often declare the contractual damages of the parties invalid, and then impose legal liquidated damages. However, with the promulgation of the Contract Law, the original economic contract law and several related regulations have all become invalid, so the statutory liquidated damages do not exist. This restores the true nature of the liquidated damages, because the liquidated damages are originally a kind of clause agreed by both parties. The liquidated damages are originally a subordinate clause attached to the contract. The liquidated damages must be agreed, which is the original nature of the liquidated damages. One of the important considerations for abolishing the statutory liquidated damages in legislation is that the statutory liquidated damages are indeed linked to the planned economy, and they are obviously punitive. Any statutory liquidated damages are punitive. It can be seen from this that the legal provisions all stipulate the range dead, which actually means a penalty clause. The reason why such penalty clauses are established is that we used to regard the performance of contracts as a means of complete planning. As long as the parties do not perform the contract, this punitive clause will be adopted to urge the parties to perform the contract. Under the condition of market economy, the nature of liquidated damages should be compensatory. Therefore, the Contract Law deleted the statutory liquidated damages based on this consideration.

Second, because the Contract Law emphasizes that liquidated damages are an agreed clause, it is prior to damages. Strictly speaking, Article 114 of the Contract Law should be placed in front of Article 113. The reason is that there should be liquidated damages first, and then there should be damages. That is to say, in order to respect the freedom of contract of the parties according to the principle of freedom of contract, freedom of contract also includes the parties' free choice of contractual remedies and the amount of liquidated damages agreed by the parties. If the parties have implemented the agreed liquidated damages, the liquidated damages clause agreed by the parties shall be implemented first, and the division of responsibilities can be easily established. When the parties have not determined the liquidated damages clause, the legal liability for damages can be used in this way. At the same time, when the liquidated damages agreed by the parties are not enough to compensate the non defaulting party's losses, the damages can continue to be used. If these two situations do not exist, then there is no need to implement liquidated damages, and there is no need to consider the issue of damages. Therefore, liquidated damages are used prior to damages.

Third, it is emphasized that the liquidated damages are mainly compensatory. Civil law of continental law system divides liquidated damages into compensatory liquidated damages and punitive liquidated damages based on whether the liability for liquidated damages can coexist with the actual performance. The former does not recognize the coexistence of the two, while the latter recognizes that the two can be used together. Our country has different standards for distinguishing the two, but the new contract law should have no doubt that the liability for breach of contract damages is mainly compensatory. However, it is stipulated in the third paragraph of Article 114 of the Contract Law. "If the parties agree on liquidated damages for delay in performance, the defaulting party shall also perform after paying the liquidated damages debt 。” This means that when liquidated damages are agreed for delay in performance, liquidated damages and actual performance can coexist, and there is room for punitive liquidated damages, but this is an exception. Of course, according to the principle of freedom of contract, the parties can agree on punitive liquidated damages.

The fourth point should be emphasized that any liquidated damages are effective once agreed, and the judge and the arbitration tribunal have no right to declare the liquidated damages clause invalid, otherwise it would be an infringement of the free will of the parties and would be against the principle of freedom of contract. It is difficult to satisfy the judicial practice in the past, and it is common for judges and arbitrators to declare the penalty clause invalid arbitrarily, which should be prohibited.

State intervention in liquidated damages is necessary, but its intervention must meet certain conditions. According to the provisions of the second paragraph of Article 114 of the Contract Law, there are two conditions: one is that the agreed liquidated damages are too high or too low for the losses caused, and the other is that the parties must request, and the court or arbitration tribunal has no right to make adjustments. Here we need to pay attention to the statement of the Contract Law. When the agreed liquidated damages are lower than the loss, the adjustment conditions are relatively loose, that is, at this time, as long as the parties make a request, they can generally be adjusted. When the liquidated damages are higher than the loss, they will not be adjusted unless they are too high.

in order to Suretyship contract Both parties can effectively perform the obligations of the contract. When the other party gets the rights of the contract, it stipulates that if one party breaches the contract, it needs to pay a certain amount of liquidated damages to the other party, but the liquidated damages should not be too high. Otherwise, it is independent of the relevant personnel. Generally, the contract law stipulates a 30% limit.