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It is extremely common for contracts for the sale of land to include a clause to the effect that the purchaser must provide a deposit, and that the deposit will be forteit if the purchaser does not complete the transaction. Such a clause is, in effect, a PenaltyClause, and not a LiquidatedDamagesClause. This is because deposits are often very large -- 10% of the purchase price is not unusual -- and the losses suffered by the disappointed seller are frequently not that great.
Traditionally the courts have been relucant to enforce penalty clauses, but contracts for the sale of land are one of a small number of exceptions to this policy. The reasons given usually centre on the fact that land transactions are usually of very great importance to the parties concerned, and a high level of certainty is required. However, because the forfeiture is so punitive, a court is empowered by s.49(2) of the LawOfPropertyAct1925 to order a return of the deposit where it would be in the interests of justice to do so.
Because the forteiture of deposit is held to fulfil an important social function, the courts are reluctant to exercise this power. For example, in OmarVElWakil2002 it was held that the fact that the seller was unable to show that he had suffered any loss was not a good reason to order a return of deposit to the buyer. However, in TennaroVMajorarch2003 the buyer in default offered to enter into a new contract to purchase the property, and at a higher price than the market value. The seller refused, despite the favourable terms of the new contract. The court held that his refusal was an attempt to capitalise on the forfeiture clause, and he was ordered to return the deposit.
ContractLaw LandAndPropertyLaw
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