§ 29.8 Opponent

• Library: Damages (OSBar) (2016 Ed.)

§ 29.8 OPPONENT

The opponent of a liquidated-damages clause has several hurdles to overcome. First, the opponent must establish that the clause at issue constitutes a liquidated-damages provision. DiTommaso Realty, Inc. v. Moak Motorcycles, Inc., 309 Or 190, 195, 785 P2d 343 (1990). To do so the opponent should present evidence showing that, in the event of a breach, the contract gives the nonbreaching party the right to recover an agreed sum of money. This question is one of contract construction and will be answered by the court. See ORS 42.230.

The opponent's next step is to prove that the liquidated-damages provision is unenforceable as a...