75. Compensation for breach of contract where penalty stipulated for

When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.

Explanation — A stipulation for increased interest from the date of default may be a stipulation by way of penalty.

Exception — When any person enters into any bail-bond, recognisance or other instrument of the same nature, or, under the provisions of any law or under the orders of the Government of Brunei Darussalam, gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.

Explanation — A person who enters into a contract with Government does not necessarily thereby undertake any public duty or promise to do an act in which the public are interested.

Contracts

Illustrations

A contracts with B to pay B $1,000 if he fails to pay B $500 on a given day.

A contracts with B that, if A practises as a surgeon within Calcutta, he will pay

A gives a recognisance binding him in a penalty of $500 to appear in court on a certain day. He forfeits his recognisance. He is liable to pay the whole penalty.

A gives B a bond for the repayment of $1,000 with interest at 12 per cent at the end of 6 months, with a stipulation that, in case of default, interest shall be payable at the rate of 75 per cent from the date of default. This is a stipulation by way of penalty and B is only entitled to recover from A such compensation as the court considers reasonable.

A, who owes money to B, a moneylender, undertakes to repay him by delivering to him 10 gantangs of grain on a certain date and stipulates that, in the event of his not delivering the stipulated amount by the stipulated date, he shall be liable to deliver 20 gantangs. This is a stipulation by way of penalty and B is only entitled to reasonable compensation in case of breach.

A undertakes to repay B, a loan of $1,000 by five equal monthly instalments with a stipulation that, in default of payment of any instalment, the whole shall become due. This stipulation is not by way of penalty and the contract may be enforced according to its terms.

A borrows $100 from B and gives him a bond for $200 payable by five yearly instalments of $40, with a stipulation that, in default of payment of any instalment, the whole shall become due. This is a stipulation by way of penalty.