法學期刊
  • 社群分享
論著名稱:
定型化契約懲罰性條款的可執行性與可執行的違約金條款(Enforceability of Different Penalty Clauses in Standard Service Contracts and Enforceable Liquidated Damage Clause)
文獻引用
編著譯者: 陳盈如
出版日期: 2012.03
刊登出處: 台灣/華岡法粹第 52 期/159-207 頁
頁  數: 49 點閱次數: 5753
下載點數: 196 點 銷售明細: 權利金查詢 變更售價
授 權 者: 中國文化大學法律學系 授權者指定不分配權利金給作者)
關 鍵 詞: 懲罰性條款懲罰性賠償金違約金條款定型化契約信用卡滯納費提款卡透支費提前解約費
中文摘要: 英美法體系中允許以賠償損害爲原則的契約違約金條款,然而以懲罰爲目的懲罰性條款在英美法原則下不可被執行。美國最高法院判決在 State Farm Mutual Automobile Insurance Co. v. Campbell 清楚的提出憲法上對於懲罰性賠償金的限制,法院在決定懲罰性賠償金時,應考慮:一、被告行爲的可責性。二、原告實際或可能的損害與懲罰性賠償間的不對等性。三、懲罰性賠償金的判決以及與本案相似的民事案件判決金額的比較。美國最高法院判決指出,懲罰性賠償金判決與被害人實際上損失,在比率上原則不得超過個位數。在英美法系原則下,契約中的懲罰性條款,例如信用卡滯纳金、提款卡透支費以及電信服務契約的提前解約費,爲契約一方未依契約條款履行時所需支付的懲罰性賠償金。在無法律明文規定相反的情形下,懲罰性條款爲不可被執行條款。高度不合比率的賠償金通常會引起憲法上關於合法可執行與否的爭議。本文首先會定義出當契約一方不履行契約條款時,何種金錢損害被害人可以獲得賠償。其後,本文會討論 State Farm 中憲法對懲罰性賠償金的限制是否適用到定型化契約中由服務提供者(如本文所討論的銀行及電信業者)所訂的懲罰性條款,並討論這些懲罰性條款的合憲性及可執行性。 最後,本文會討論如何擬定契約中可執行的違約金條款。
英文關鍵詞: Penalty ClausePunitive AwardLiquidated Damage ClauseStandard Service ContractCredit Card Late FeeDebit Card Overdraft FeeEarly Termination Fee
英文摘要: Under common law, liquidated damage clause in a contract is enforceable since it is used to compensate the victim in the event of breach. However, contract penalty clause is unenforceable since the purpose of penalty clause is to punish the breaching party. State Farm Mutual Automobile Insurance Co. v. Campbell articulated constitutional constraints upon the imposition of punitive damages. Court should consider “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages awarded; and (3) the difference between the punitive damages awarded and the civil penalties authorized or imposed in comparable cases” to determine the punitive damage award. The U.S. Supreme Court held that punitive damages should not exceed single-digit ratio between the amount of the actual losses of the plaintiff and the punitive damage award. The Court also instructed that quadruple multipliers are already the borderline of the constitutional inappropriateness. The article will define what monetary damages the victim party can recover from a breach of the contract, and then the article will discuss whether State Farm constraints apply to those penalty clauses in standard contracts which made by service providers (such as banks and cell phone service companies here), and examine their constitutionality and enforceability. Finally, the article will provide some tips about how to draft an enforceable liquidated damage clause in a contract.
Under the common law rule, these penalties in contracts, such as credit card late fee, debit card overdraft fee and cell phone service early termination fee, are punishments for breach of contract, they would typically be unenforceable but for positive legislative efforts to override this common law rule. The disproportionately high charges will be called into constitutional question of their legal enforcement.
The credit card late fee is alleged that it is a federal authorization to banks and the federal authorization preempts the common law rule of unenforceable penalty clause in contract. Under this situation, even if we accept the view of banks and consider the preemption exists. The disproportionately high charge of late payment still cannot meet the State Farm constraints.
The debit card overdraft fee is disguised under the clothes of services. Banks alleged that overdraft policy is an expensive service they provide to their account holders. However, from the view of the general public, it is a penalty to punish people who overdraft their account. Considering its unreasonable charge, it cannot pass the requirements in State Farm decision.
The early termination fee for the cell phone plan is announced by the service providers as a recovery of liquidated damages since service providers offer discounted cell phone upfront and should be compensated later on. However, the early termination fee exceeds the liquidated damages limitation to the extent that it has become a penalty to subscribers who terminate their contracts earlier before the expired date. In fact, the actual losses of the cell phone service providers can be easily calculable. There is no reason that the fixing amount of early termination fee should be made. The charge makes no difference on people who terminate in a month after signing the contact or two weeks before the expiration of the contract. Its disproportionate charge is disguised under the liquidated damage clothes. It is in fact a penalty clause and unenforceable under the common law if without federal preemption.
Nowadays, the courts are inclined to be open to the liquidated damage clause in a contract, because the liquidated damage clause can provide the parties a more explicit expectation of what they may have to face if they breach the contract. Also, the amount fixed in the contract can save the time and money for litigations, collecting evidence or calculate damages. However, the amount should still be a reasonable forecast of damages. As a result, we will provide some measurement method for parties to make a reasonable forecast of possible damages in the event of breach.
To conclude, all above three fees are penalty clauses ex facto, although they may be disguised under different excuses. The penalty clause itself is not enforceable under common law, but it may be enforceable with the governmental authorization. However, even with governmental authorization, the limits in State Farm should still be applied to avoid unreasonable recovery. The three fees discussed here are all disproportionate between actual losses and fixing punitive damage amount and with minor or even no reprehensibility. Therefore, those penalty clauses in different standard contracts here are not enforceable under the State Farm constraints. However, an enforceable liquidated damage clause can be a really useful tool for nowadays transaction to save time and cost if we can measure the amount with reasonable forecast.
目  次: I. Introduction
II. Remedies for Contract Breach
A. Monetary Damages
B. Limitations on Monetary Damages
1. Avoidable Losses
2. Unforeseeable Losses
3. Uncertain Losses
C. Liquidated Damages and Penalty Clause
1. The Distinction between Liquidated Damages and Penalty Clause:
2. Governmental authorization can override the common law ban on contractual penalty clause
3. Should the constraints of punitive damages apply to the contractual penalty clause?
a. The distinction between penalty clause and punitive damages
b. State Farm Constraints Apply to the Contract Penalty Clause
III. Three Types of Penalty Clause
A. Credit Card Late Fee
1. Introduction of Late fee
2. Unreasonable charge to late payers
3. The Late Fees Clause In A Contract by Banks Is A Penalty Clause
4. Statute overrides the common law?Constitutionality?
5. Applying State Farm Criteria: a.Reprehensibility
b. Disparity of compensatory and punitive damages
B. Debit Card Overdraft Fee
1. Introduction of Debit Card Overdraft Fee
2. Disproportionately High Charge of Overdraft Fee
a. Avoidable Losses
b. Uncertain Losses
3. The Debit Card Overdraft Fees Clause in A Contract Is A Penalty Clause
4. Governmental authorization may override the common law ban on contractual penalty clause, but should comply with the State Farm limits
a. Reprehensibility
b. Disparity of compensatory and punitive damages
5. Banks' argument of taking the overdraft policy as a service
C. Cell Phone Plan Early Termination Fee (ETF)
IV. Enforceable Liquidated Damage Clause
A. Liquidated Damage Clause in Modern World
B. Drafting an Enforceable Provision for Liquidated Damages
C. Calculate Reasonable Amount for Liquidated Damage Clause
V. Conclusion
相關法條:
相關判解:
相關函釋:
相關論著:
陳盈如,定型化契約懲罰性條款的可執行性與可執行的違約金條款,華岡法粹,第 52 期,159-207 頁,2012年03月。
返回功能列