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| 奥黛丽·K·夸克（Audrey K. Kwak） |
A contractor’s risk of being assessed liquidated damages for delayed performance looms large on any public or private contract. Conventional wisdom has always held, however, that a contractor need not fear liquidated damages if terminated by the owner for convenience, rather than for cause. That’s because a termination for convenience, by definition, means that termination was not due to performance, timely or otherwise, by the contractor.
但是最近的康涅狄格州案件是Old Colony Construction LLC诉Southington镇（2015年），质疑这一长期以来的常识概念。取而代之的是，承包商和所有者都应该意识到这一决定，其中法院不关注终止性质，而是考虑当事方合同的明确语言，尽管这样做是授予所有者的相当大的意外之财。
在此案中，法院考虑了承包商的论点，即项目所有者，苏辛顿镇无权赔偿损坏，因为该镇已终止承包商，以方便泵站更换。
The contract itself provided that time was of the essence and provided for liquidated damages in the amount of $400 for each day that substantial completion exceeded the contract’s substantial completion date. After significant delays on the project—attributable both to the contractor and the town—the town terminated the contract on the basis of convenience more than two and a half years after the contract’s substantial completion date had passed.
终止后，承包商和该镇都提出了对方的索赔。初审法院得出的结论是，承包商有权获得超过164,000美元的未付工作。但是，法院还裁定，该镇有权在789天的延误中获得315,000美元的清算赔偿。违约损害赔偿抵消了承包商的损害赔偿，并对所有者进行了超过15万美元的净判决。
承包商提出上诉,称因为termination for convenience avoids liability for the contractor’s expectation damages and the risks associated with proving termination for cause, the owner should forfeit the traditional “default-based remedies” of termination for cause.
“上诉法院根据合同的明确语言不同意。”
上诉法院不同意,based on the express language of the contract. The court noted that the contract’s termination-for-convenience clause specifically allowed for termination “without cause and without prejudice to any other right or remedy,” and this broad reservation of rights and remedies was to be given full effect without evidence of a more limited intent.
Furthermore, even if such a limitation did exist following termination for convenience, the town’s claim for liquidated damages would not be impaired because its right to such damages arose as soon as the substantial completion date passed and the damages continued to accrue until termination of the contract.
The Connecticut Supreme Court agreed with both lower courts, holding that the town’s pursuit of liquidated damages did not deprive the contractor of rights it would have had if it had been terminated for cause. The court also observed that the contractor was not exposed to the costs of project completion, for which it would have been liable if terminated for cause. The supreme court thus agreed with the trial court that the town’s decision to terminate the contract for convenience did not preclude it from recovering liquidated damages.
旧的殖民地案再次说明了为什么谈判明确的合同条款至关重要。在违约时，最敏感的与违约，治愈权，终止和当事方的权利有关。当然，这些物品是正确的关键。
