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Contents
- Preliminary Material
- Main Text
- 1 The Historical Origins of the ‘Penalty’ Rule
- 2 The Modern ‘Penalty’ Rule
- Preliminary Material
- A Introduction
- B The Requirement of Breach: ‘Engaging’ the Penalty Rule
- C Applying the Test for a Penalty
- D The Application of the Penalty Rule to Obligations other than to Make Payments
- E The Relationship between the Penalty Rule and the Equitable Relief against Forfeiture
- F A Residual Role for the Dunlop Case
- 3 The Legal Effect of Classification as a ‘Penalty’ or a Valid Liquidated Damages Clause
- 4 The Rationale for the ‘Penalty’ Jurisdiction
- Preliminary Material
- A Introduction
- B The ‘Penalty’ Jurisdiction and Freedom of Contract
- C Transaction Cost Advantages or Savings
- D ‘Signalling’ Functions
- E Unconscionability and Oppressive Bargains
- F Economic Efficiency
- G Behavioural Decision Theory
- H Protection of the Parties’ Secrecy Interest
- I The Provision of ‘Just Compensation’
- J The Prevention of ‘Punishment’ and Usurping the Role of the Court
- K The Historical Rationale: ‘We Have Always Had It’
- L The Comparative Rationale: ‘Every System Has One’
- M Conclusion
- 5 Analogous Provisions and Avoidance Techniques
- Preliminary Material
- A Introduction
- B Analogous Provisions
- (1) Advance payments, forfeiture clauses, and deposits
- 5.02
- 5.03
- 5.04
- 5.05
- 5.06
- 5.07
- 5.08
- Advance payment with no express or implied provision for forfeiture
- Advance payments subject to express forfeiture and deposits
- Advance payments subject to express forfeiture, deposits, and the penalty rule after the Cavendish case
- Should the penalty jurisdiction and the regulation of deposits be assimilated?
- Three statutes
- The forfeiture of proprietary or possessory rights
- The forfeiture of proprietary or possessory rights and the penalty rule after the Cavendish case
- (2) Termination provisions
- (3) Acceleration clauses
- (4) ‘Invoicing back’ clauses
- (5) Payments conditional on events other than breach
- (6) Payments for the exercise of an option
- (7) Payments conditional on breach and non-breach events
- (1) Advance payments, forfeiture clauses, and deposits
- C Avoidance Techniques
- D Drafting Guides
- 6 Specific Contracts and Contractual Provisions
- Further Material