Cummings Properties, LLC v. National Communications Corp., 449 Mass. 490 (2007)

Citation: Cummings Properties, LLC v. National Communications Corp., 449 Mass. 490 (2007)
Parent Document: Cummings Properties, LLC v. National Communications Corp., 449 Mass. 490 (2007)
Jurisdiction: Massachusetts (state)
Effective Date: 2007-07-17
Original Source: https://www.courtlistener.com/opinion/6579581/cummings-properties-llc-v-natio... ↗

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Accordingly, we modify our holding in Commissioner of Ins. to the extent that in the case of a commercial agreement be*496tween 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. United Air Lines, Inc. v. Austin Travel Corp., 867 F.2d 737, 741 (2d Cir. 1989). See XCO Int’l, Inc., supra at 1005 (proper judicial remedy where provision written to apply to any breach is to reform clause to limit it to those breaches “for which it constituted a reasonable specification of damages”); 11 A. Corbin, Contracts § 58.14, at 488 (rev. ed. 2005) (liquidated damages clause that undercompensates for some breaches and overcompensates for others not necessarily struck down when devised by sophisticated parties); Farnsworth, supra at § 12.18, at 311 n.31 (collecting cases). 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 damages and severability clauses of the lease.

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