liquidated damages philippines
While in its letter dated September 22, 1997 respondent indeed required petitioner to submit a formal written commitment to finish and complete the project by a certain date, the same should not be deemed a waiver of its right to collect liquidated damages. How to Select a Lawyer . 182, 205 (2004). 39 Empire East Land Holdings, Inc. v. Capitol Industrial Construction Groups, Inc., G.R. Also, Section 3, Article V of the Construction Contract emphasizes that any extension in the contract period must be in writing, to wit: Section 3: The OWNER may, at any time during the progress of the performance of the Works in the PROJECT, order a change or changes in the plans and specifications; provided, that in such cases, any increase or decrease in the Contract Price above stipulated shall be subject to proportionate adjustment mutually agreed upon. WHEREAS. 86883-85, Jan. 29, 1993). LIQUIDATED DAMAGES: It is understood that time is an essential feature of this Contract, and that upon failure to complete the said Contract within the contract time, the Contractor shall be required to pay the Owner the liquidated damages in the amount stipulated in the Contract Agreement, the said payment to be made as liquidated damages, and not by way of penalty. What is the rule on the applicable period for the completion of work? With the modification of the contract period, petitioner was obliged to perform the works and deliver the units only until April 7, 1997. 14 Exhibit "K"; Expanding Envelope No. As a general rule, contracts constitute the law between the parties, and they are bound by its stipulations. Liquidated damages are frequently agreed upon by the parties, either by way of penalty or in order to avoid controversy on the amount of damages. No. Liquidated Damages. Under Philippine laws, these damages take the nature of penalties. Nevertheless, in the event that the alterations and the changes mentioned herein shall affect the Contract period, an extension thereof shall also be subject to proportionate adjustment in writing. 173155, March 21, 2012. Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable. No. Exception: Criminal cases. The CA agreed with the CIAC that petitioners counterclaims could not be dismissed on the ground of forum shopping, because the civil case before the RTC was dismissed for lack of jurisdiction. No. Claimant must produce competent proof or the best evidence obtainable such as receipts to justify an award therefore. This means that the party or parties who are injured by such a breach will be compensated for their injury. No proof of pecuniary loss is necessary. The Lawphil Project - Arellano Law Foundation. 52070. Since May 18, 1973, this policy required a liquidated damages clause to be inserted in every construction contract over … Consequently, and pursuant to the agreement of the parties, petitioner is liable for liquidated damages in the amount of P 29,440.00 per day of delay, which shall be limited to a maximum of 10% of the project cost or P 294,400.00. While it did file a request for extension which was granted until April 7, 1997, the project remained incomplete and no further extension was asked26 Notwithstanding the delay, the CIAC found the termination of the contract illegal for respondents failure to comply with the requirements of termination, as the contract specifically provides that petitioner be given 15-day notice prior to such termination.27 It added that petitioners delay was overridden by the unlawful termination of the contract.28 Consequently, respondent was not awarded liquidated damages.29 For failure to submit sufficient evidence, the CIAC also found respondent not entitled to the additional cost to complete the project.30 As to the cost of correcting the defects, it concluded that although respondent failed to prove the cost of correcting the defects, reasonable cost should be awarded in view of the admitted and proven defects.31 Finally, the CIAC found petitioner entitled to the 10% retention which is P1,012,139.89 from which respondents claims should be deducted.32 In effect, both petitioners and respondents claims and counterclaims were partly granted. Basics of Liquidated Damages. Petitioner, however, still failed to complete and deliver the units within the extended period. GR: Factual basis must be alleged. Section 4: The obligation of the CONTRACTOR to pay damages due to unexcused delays shall not relieve it from the obligation to complete and finish the performance of the Works, and to secure the final certificate of inspection from the proper government authorities. Lack of interest to make a firm commitment to finish the project.17. No. No proof of pecuniary loss is necessary. This excess cost includes cost of architectural managerial and administrative services, supervision and inspection from the time the Owner effectively took over the work by administration or by re-letting the same.46. Liquidated damages calculation can be extremely difficult, especially because it can be hard to prevent future losses. Petitioner was instructed to commence construction on July 8, 1996.12 In a letter13 dated January 6, 1997, petitioner requested for extension of time equivalent to the number of days of delay in the start of the works brought about by the belated turnover of the sites of the building. In answer to respondents request for arbitration, petitioner alleged that the delay was attributable to: (1) delayed turnover of the site; (2) cause of two typhoons; 3) change orders and additional works; (4) late approval of shop drawings; (5) non-arrival of chimney expert; (6) delayed payments; and (7) non-payment of the last two billings.22 It also argued that respondent suspended the construction works depriving it of the opportunity to complete the works on or before November 15, 1997.23 It also insisted that there was unlawful termination of the construction contract. Petitioner now comes before the Court in this petition for review on certiorari with this sole issue: WHETHER OR NOT THE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE OR HAS DECIDED IT IN A WAY NOT IN ACCORD WITH LAW OR WITH APPLICABLE DECISIONS OF THE SUPREME COURT WHEN IT RULED AND MODIFIED THE DECISION OF THE CIAC FINDING PETITIONER LIABLE TO PAY RESPONDENT LIQUIDATED DAMAGES.38. 1. Republic Act (RA) No. While we have reduced the amount of liquidated damages in some cases because of partial fulfillment of the contract and/or the amount is unconscionable, we do not find the same to be applicable in this case.52 Per the CIAC findings, as of the last certified billing, petitioners percentage accomplishment was only 62.57%. Petitioner failed to meet its new deadline which was April 7, 1997. Vindicating or recognizing the injured party’s right to a property that has been violated or invaded. 42 Empire East Land Holdings, Inc. v. Capitol Industrial Construction Groups, Inc., supra note 39, at 489. Section 5: The provision on liquidated damages notwithstanding, the OWNER, upon certification of the PROJECT MANAGER that sufficient cause exists to justify its action, may without prejudice to any other right or remedy and after giving the CONTRACTOR and its sureties proper notice in writing, terminate this Contract and take over the performance of the Works either by administration or otherwise, and to charge against the CONTRACTOR and its sureties the excess cost occasioned thereby. No. Authority for the proposition that averaging is the appropriate approach … The pertinent provisions of the Construction Contract which lay down the rules in case of failure to complete the works read: Section 1: The CONTRACTOR acknowledges that the OWNER shall not suffer [loss] by the delay or failure of the CONTRACTOR to finish and complete the works called for under this Contract within the time stipulated in Section 6, Article IV. Art. 3. Generally, contracts that involve the exchange of money or the promise of performance have a liquidated damages stipulation. 531, 536 (2003). "There were instances that DOH resolved to extend the delivery without [charging] liquidated damages to suppliers," COA added. 51 Exhibit "K"; Expanding Envelope No. Liquidated damages are specified daily charges deducted from moneys otherwise payable to the contractor for each day the contractor fails to meet a milestone and/or contract completion date. Section 4, Article IX of the Construction Contract states: Moreover, Article 21.05 of the General Conditions amplifies petitioners liability for damages, to wit: 21.05. 33 The decision was embodied in a Minute Resolution dated March 6, 2000. Free legal advice visit BATASnatin YouTube for more details! It is noteworthy that at the time such adjustment was given, respondent specified that liquidated damages shall be applied beyond the extended period given as provided for in their Construction Contract.51 Clearly, respondent had also made a demand for the payment of said damages should delay be incurred by petitioner beyond the new agreed dates. liquidated damages akin to penalty and provided that there is a contractual obligation on the part of the company to pay for the liquidated damages as soon as there is a delay in the supply of goods beyond the due date as per the delivery schedule. Additional extension was requested due to bad weather condition that prevailed during the implementation of the projects, again causing excusable delay. Such a clause typically includes a specific amount of damages, payable to a non-breaching party in the event of a specific type of breach. That the claimant is entitled to moral, temperate or compensatory damages; and 2. A liquidated damages clause is one means of ensuring compensation to a non-breaching party when another party breaches the contract. * Designated Acting Member, per Special Order No. 9 Exhibit "H"; Expanding Envelope No. Liquidated Damages 5. Aggrieved, petitioner moved for reconsideration of the decision. 1 Penned by Associate Justice Godardo A. Jacinto, with Associate Justices Bienvenido L. Reyes (now a member of this Court) and Rosalinda Asuncion-Vicente, concurring; rollo, pp. The CONTRACTOR hereby expresses covenants and agrees to pay to the Owner liquidated damages equivalent to the One-Tenth of One Percent (1/10 of 1%) of the Contract Price per calendar day of delay until completion, delivery and acceptance of the said Works by the OWNER to a maximum amount not to exceed 10%. Actual or compensatory damages cannot be presumed but must be proved with reasonable certainty. (Tan v. Bantegui, 473 SCRA 663). Any and all claims of its entitlement to period adjustment should not be granted to petitioner as would excuse it from liability for delay.1âwphi1. Delayed completion of the project; and, 3. Assuming that the reasons for valid extension indeed exist, still, petitioner should bear the consequences for the delay as it deprived respondent of its right to determine the length of extension to be given to it and, consequently, to adjust the period to finish the extra work.48. ), Without doubt, no further extension was sought after the expiration of the first extension given by respondent. Exemplary or corrective damages are intended to serve as a deterrent to serious wrongdoings. Liquidated damages are a fact of life when it comes to construction contracts. SECTION 4. The CIAC thus awarded petitioner the retention pay; the unpaid value of its work accomplishment; and the value of the materials, tools and equipment left at jobsite. Prior thereto, or on November 21, 1997, petitioner instituted with the Regional Trial Court (RTC) a civil case against respondent where it sought to recover the sum representing unpaid construction service already rendered, unpaid construction materials, equipment and tools, and cost of income by way of rental from equipment of petitioner held by respondent.20 The case was, however, dismissed on motion of respondent invoking the arbitration clause, which dismissal was affirmed by the Court.21. Section 3: The lawful occupation by the OWNER of any completed portion of the PROJECT subject of this Contract shall not be deemed as a waiver of whatsoever rights and/or remedies the OWNER may have or is entitled to under the law and/or under the terms and conditions of this Contract, nor shall it diminish whatever liability the CONTRACTOR may incur for the liquidated damages provided herein with respect to the delays in the installation of the other portions of the Works in the PROJECT. 16 Exhibit "T"; Expanding Envelope No. 148568, March 20, 2003, 399 SCRA 409, 411; 447 Phil. On September 22, 1997, respondent required petitioner to submit a formal written commitment to finish and complete the contracted works, otherwise, the contract would be deemed terminated and respondent would take over the project on October 1, 1997 with the corresponding charges for the excess cost occasioned thereby, plus liquidated damages.16 On October 3, 1997, respondent informed petitioner that the formers management had unanimously agreed to terminate the subject construction contract for the following reasons: 1. Because it can be hard to prevent future losses requirements for a precise type of breach the! Left to the amount of damages to be included in a liquidated damages is only relevant in the completion the... A precise type of breach thereof also significant is Article 29.04 thereof which explains the owners right to liquidated. In the completion of the project probable damage on breach of the likely costs which may be incurred in with... 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