There is nothing wrong with a loan agreement or a contract that indicates an amount payable for a particular event, for example. B an offence. These clauses are commonly referred to as “liquidated damage.” It is clear that the various fees included in the loan contracts cannot quite be applicable, as they constitute a legal sanction. The courts will look at all the circumstances to determine what the purpose of the clause is. If the tax is proportionate and for the purpose of recovering a loss, then it will probably be enforceable. However, if the purpose of the clause is simply to punish a party for an offence and there is no way to quantify the calculated amount, it is likely to be a penalty. Almost all loan contracts (and most other contracts with periodic payments) have a provision for late interest. A late interest provision requires a borrower who does not make a payment in accordance with the plan to pay the lender an additional amount as interest on the outstanding amount. Before Cavendish Square, lenders would generally be up (between 1% and 3%) plunder. based on the fact that a modest increase such as this would be immune as an unenforceable penalty against a challenge. The importance of this judgment is that in many sectors, such as industry, public procurement, construction and maintenance of the business, clauses for determining the amount of damages payable in the event of infringement are very frequent, and they are often what makes the market financially profitable. The damage that has been liquidated in advance should therefore be carefully considered, as it is ultimately the Tribunal`s responsibility, as stipulated in the clause. While the courts take a more commercial approach, the parties should nevertheless take due account of the application of the sanctions rule, since careful drafting can be an effective tool to exclude the application of the sanctions rule to an obligation.
It has long been recognized that the sanctions rule should only be applied in the event of a breach of contract. This has been confirmed in Cavendish Square. However, the application of the sanctions rule may depend on the fact that the corresponding obligation is defined in the contract as a primary conditional obligation or an ancillary obligation. The Court of Appeal ultimately held that the lender was not entitled to withdraw the offer of financing and claim damages, but in any event, it verified whether the loan approval fee was a penalty. With respect to the reason why the fixed costs remained stable as a result of the change in the amount of the facility, the Court found that the amount had not been changed on the basis of a claims calculation, but because of the additional administrative work that the lender had to do as a result of the changes to the proposed loan. The applicant, Mr. Holyoake, had acquired commercial property in London with the intention of converting it for residential purposes. The property was acquired through three personal loans, one of which was a $12 million unsecured private loan by one of the defendants, CPC Group Ltd (“CPC”).