This four-part series has explored some of the ways in which parties to real estate transactions attempt to control what will happen if one party breaches its obligations.  The first three articles discussed ways parties can provide for or anticipate certain “bespoke” remedies:  liquidated damages, specific performance, and notice of pendency.  The most common remedy, however, is actual damages: a monetary award compensating the non-breaching party for the financial consequences of the breach.

Parties also often wish to contractually limit actual damages, especially if a transaction involves a long-term business relationship. This article will discuss two types of provisions designed to do exactly that: waivers of consequential damages, and waivers of the right to seek money damages altogether.

Waivers of Consequential Damages