Cummings Properties, LLC vs. National Communications Corporation

SJC decision in Cummings Properties, LLC vs. National Communications Corporation


The Massachusetts Supreme Judicial Court allowed a commercial landlord to enforce a liquidated damages clause against a tenant for non-payment of rent in this decision

The tenant had argued that the liquidated damages clause was unenforceable under Commissioner of Insurance v. Massachusetts Acc Co., 310 Mass. 769 (1942). That case barred enforcement of a liquidated damages provision that, by the terms of the lease, could apply to both trivial as well as material breaches.

A contract provision that clearly and reasonably establishing liquidated damages should be enforced so long as it is not so disproportionate to anticipated damages as to constitute a penalty. If, at the time the contract was made, actual damages were difficult to ascertain and the sum agreed on by the parties as liquidated damages represents a reasonable forecast of damages expected to occur in the event of a breach, it will usually be enforced. TAL Fin. Corp. v. CSC Consulting, Inc., 446 Mass. 422 (2006).

A rent acceleration clause, in which a defaulting lessee is required to pay the lessor the entire amount of the remaining rent due under the lease, may constitute an enforceable liquidated damages provision so long as it is not a penalty.

The SJC modified "their holding in Commissioner of Ins. to the extent that in the case of a commercial agreement between sophisticated parties containing a liquidated damages provision applicable to breaches of multiple covenants, it may be presumed that the parties intended the provision to apply only to those material breaches for which it may properly be enforced. This modification is consistent with the goal of resolving disputes "efficiently by making it unnecessary to wait until actual damages from a breach are proved" and helps to eliminate uncertainty and costly litigation. Kelly v. Marx, 428 Mass. 877, 881 (1999). It is also consistent with the intention of the parties in the present case as expressed in the language they agreed to in the liquidated

LOADING PDF: If there are any problems, click here to download the file.

Reference Info:Decision | State, 1st Circuit, Massachusetts | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Doug Cornelius | Attorney Advertising

Written by:


Doug Cornelius on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.