Larry A. DiMatteo
85 Geo. Wash. L. Rev. 1846
This Article reviews the landmark decision of the United Kingdom Supreme Court involving two cases collectively known as Cavendish-ParkingEye. The decision represents an assault on the common law’s penalty rule, which invalidates liquidated damages clauses that are determined to be penalties. The Court upheld two clauses that would have been deemed unenforceable penalties under traditional criteria and instead adopted a broader ‘commercial justification’ standard. However important the Court’s decision is as it relates to substantive law, more importantly, this Article focuses on using the decision as a case study of common law reasoning. It points out the particularity of common law reasoning’s obsession with the principle of precedent. In the end, the Court is led astray in providing clear guidance to future courts by its tortured attempt to pay homage to longstanding caselaw. This restraint prevented the Court from doing what all indications show it wanted to do—abolish the penalty rule.
