An Analysis Of The Validity Of Agreement Of Abandonment Of Liquidated Damages Adjusting Claims

Liquidated damages is one of the common ways to bear the liability for breach of contract,and the parties often dispute about the amount of liquidated damages.Article 114 of the contract law gives the parties the right of claim for adjustment of liquidated damages.In judicial practice,there is a phenomenon that the parties agree to give up the right to apply to the court or arbitration institution for adjustment of "too high or too low liquidated damages".Whether this agreement is valid or not cannot be seen from article 114 of the contract law,and there is no consensus among theorists and judicial practice.Some scholars think that this agreement is invalid,for the following reasons: first,the nature of liquidated damages is compensatory.Secondly,the right of claim for liquidated damages adjustment is " right of suit",and the parties cannot exclude the application by self-agreement.Finally,the agreement violated the " fairness principle" of the contract law.We believe that the waiver of liquidated damages adjustment claim agreement is valid.This article raises controversial issues through two cases of Yichang intermediate people’s court and qingxiu district court of Nanning city,and then responds to some scholars’ reasons that the waiver of liquidated damages adjustment claim agreement is invalid.Finally,it demonstrates whether the waiver of liquidated damages adjustment claim agreement is in line with the contract law’s stipulation on the establishment and entry into force of the contract,the nature of the liquidated damages and whether the agreement is in line with the basic principles of the contract law.The imperfection of the provisions on liquidated damages in the contract law is the fundamental reason for the above differences,that is,whether the court or arbitration institution should interfere with the " autonomy of will" behavior agreed by the parties on waiving the right of claim for liquidated damages adjustment,the nature of liquidated damages and the nature of the right of claim for liquidateddamages adjustment.the contract law is not clearly stipulated.Therefore,we need to improve the contract law to solve the above problems.In this way,it is not only beneficial for the parties to choose the most advantageous way to conclude a contract,but also conducive to the accuracy of the applicable law of the court or arbitration institution,thus maintaining the unity and authority of justice.