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If you are a parent with a child in daycare, like me, or private school, you know all too well the difficult choice of selecting the perfect provider. Many providers require you to pay a substantial deposit to secure your child’s place with only a short cancellation window. But, what happens if you cancel after the deadline passes? And, if the provider already is capacity-filled or can place another child in your child’s stead, should the law allow the provider to keep your deposit?

That question was presented to the Court of Appeals of Maryland in Barrie School v. Andrew Patch, et al., 401 Md. 497, 933 A.2d 382 (2007), found here. There, the Court held that when a contract contains an enforceable liquidated damage, the non-breaching party has no obligation to mitigate his damages. As we mentioned in our prior blog entry,, parties should consider negotiating a liquidated damages provision to avoid having to prove complicated damage questions. Liquidated damages are defined as a “specific sum stipulated to and agreed upon by the parties at the time they entered into a contract, to be paid to compensate for injuries in the event of a breach of that contract.” Id. at 507, 933 A.2d at 388.

Before addressing the duty to mitigate issue, the Court first examined the rules pertaining to liquidated damages. The Court embraced a three-part test to determine whether a contract clause constitutes a liquidated damages provision: “First, such a clause must provide in clear and unambiguous terms for a certain sum. Secondly, the liquidated damages must reasonably be compensation for the damages anticipated by the breach. Thirdly, liquidated damage clauses are by their nature mandatory binding agreements before the fact which may not be altered to correspond to actual damages determined after the fact.” Id. at 509, 933 A.2d at 389 (internal citation omitted).

In addition, a liquidated damages provision may not be “grossly excessive and out of all proportion to the damages that might reasonably have been expected to result from such breach of the contract.” Id. at 509, 933 A.2d at 389-90 (internal citations and quotations omitted). And, the Court adopoted the following analysis: “a liquidated damages provision will be held to vioate public policy, and hence will not be enforced, when it is intended to punish, or has the effect of punishing, a party for breaching the contract, or when there is a large disparity between the amount payable under the provision and the actual damages likely to be caused by a breach, so that it in effect seeks to coerce performance of the underlying agreement by penalizing nonperformance and making a breach prohibitively and unreasonably costly.” Id. at 510, 933 A.2d at 390 (internal citations and quotations omitted).

The Court then used a two-part test to determine whether a liquidated damages provision should be treated as an enforceable penalty: “First, the clause must provide a fair estimate of potential damages at the time the parties entered into the contract.” Id. at 510, 933 A.2d at 390. “Second, the damages must have been incapable of estimation, or very difficult to estimate, at the time of contracting.” Id. Using that test, the Court held that the school’s one-year tuition liquidated damage provision was “enforceable because [the damages] were neither grossly excessive nor out of proportion of those which might have been expected at the time of contracting.” Id. at 512, 933 A.2d at 391.

After determining that the provision was enforceable, the Court held that the non-breaching party has no duty to mitigate its actual damages “[b]ecause mitigation of damages is [only] part of a post-breach calculation of actual damages….” Id. at 514-15, 933 A.2d at 392-93. And, such an analysis would “blunt” the purpose of having a liquidated damages provision. Id.