Johannes Ungerer (University of Oxford - Institute of European and Comparative Law; University of Notre Dame - Notre Dame Law School) has posted Legislatively Liquidated Damages (Legiliquids) (Forthcoming in the Law Quarterly Review, 2025) on SSRN. Here is the abstract:
Legislatively liquidated damages (legiliquids), which are predetermined amounts of damages prescribed by the lawmaker, are a regulatory instrument in private law with unique characteristics and effects. Legiliquids have not been explored in English legal scholarship to date. Based on the analysis of the illustrative provisions on late payment and air passenger compensation, this article presents a conceptual definition of legiliquids and delineates them from US statutory damages. It is argued that the lawmaker prescribes legiliquids for particular breaches of contract which are both frequent and similar in kind as well as micro- and macro-economically critical, but uncontrollable by private contractual and market mechanisms. The article reveals the core characteristics of legiliquids and the doctrinal divergences from both orthodox damages law as well as contractually liquidated damages. It is further shown that legislatively liquidated damages increase procedural efficiency and have a behavioural steering effect.
