barleycorn Posted January 10, 2013 Share Posted January 10, 2013 An NCP with barriers could certainly set some ridiculous charge if they wished. Really? How does a barrier make an unenforceable penalty clause become enforceable? jb Link to comment Share on other sites More sharing options...
truman Posted January 10, 2013 Share Posted January 10, 2013 Really? How does a barrier make an unenforceable penalty clause become enforceable? jb Could you explain how making it v. expensive to park for 3 hours (for example) is a penalty clause..genuine question.. Link to comment Share on other sites More sharing options...
barleycorn Posted January 10, 2013 Share Posted January 10, 2013 Could you explain how making it v. expensive to park for 3 hours (for example) is a penalty clause..genuine question.. The example stated was parking for free for 2 hours and then if you go over being charged £80 for the privilege. This is what makes it a penalty clause as its purpose is to coerce a party to comply with the 2 hour limit. For the breach to be enforceable the charge must be a genuine pre-estimate of damages, which in the case of a free car park is exactly £0. There is oodles and oodles of case law to support this. An overview here A clause which stipulates that a sum certain in money must be paid upon one or a series of defaults by one of the parties is known as a liquidated damages clause and will be enforceable as long as it is a “genuine pre-estimate” of damages and is not designed to terrorise3 the defaulting party into performance... Such a clause will be unenforceable to the extent that it is “extravagant or unconscionable” and out of all proportion to the loss;4 and when the purpose of the clause is to coerce a party to comply and not to redress a breach; and thus operates in terrorem, even though there might not be a “literal stipulation that the payment is in terrorem” jb ETA: A car park operator can of course charge whatever they like on an hour by our basis (or indeed minute by minute), say £20 per hour, which would be enforceable. Link to comment Share on other sites More sharing options...
truman Posted January 10, 2013 Share Posted January 10, 2013 The example stated was parking for free for 2 hours and then if you go over being charged £80 for the privilege. This is what makes it a penalty clause as its purpose is to coerce a party to comply with the 2 hour limit. For the breach to be enforceable the charge must be a genuine pre-estimate of damages, which in the case of a free car park is exactly £0. There is oodles and oodles of case law to support this. An overview here jb ETA: A car park operator can of course charge whatever they like on an hour by our basis (or indeed minute by minute), say £20 per hour, which would be enforceable. OK, add-on question... is it legal/whatever for the car park near the station to give you 30mins free parking and then to charge after that? I'm struggling to see the difference ... Link to comment Share on other sites More sharing options...
gym_rat Posted January 10, 2013 Share Posted January 10, 2013 Its Quite clear . Which part of the court ruling i posted dont you understand. ? I`m not asking about the court ruling - I have just bought a bomb site in town, are you seriously saying I cannot charge parking? ---------- Post added 10-01-2013 at 16:11 ---------- No you wouldn't as the charge is clearly penal in nature. jb no its not, I can charge what I like for parking on my land, same as I could charge what I like for a carpet if I sold carpets for a living. ---------- Post added 10-01-2013 at 16:14 ---------- The example stated was parking for free for 2 hours and then if you go over being charged £80 for the privilege. This is what makes it a penalty clause as its purpose is to coerce a party to comply with the 2 hour limit. For the breach to be enforceable the charge must be a genuine pre-estimate of damages, which in the case of a free car park is exactly £0. There is oodles and oodles of case law to support this. An overview here jb it`s not a penalty I choose to give you the first two hours free as its not worth my while to collect them, I then charge the next 20 hours at a fixed price of £80.00. ETA: A car park operator can of course charge whatever they like on an hour by our basis (or indeed minute by minute), say £20 per hour, which would be enforceable. see above Link to comment Share on other sites More sharing options...
barleycorn Posted January 10, 2013 Share Posted January 10, 2013 OK, add-on question... is it legal/whatever for the car park near the station to give you 30mins free parking and then to charge after that? I'm struggling to see the difference ... Are the sums specified in terrorem (ie to punish or deter parking over 30min)? Or are they offered in consideration of you staying longer and paying? jb Link to comment Share on other sites More sharing options...
truman Posted January 10, 2013 Share Posted January 10, 2013 Are the sums specified in terrorem (ie to punish or deter parking over 30min)? Or are they offered in consideration of you staying longer and paying? jb I've no idea..how can you tell the difference? Link to comment Share on other sites More sharing options...
gym_rat Posted January 10, 2013 Share Posted January 10, 2013 Are the sums specified in terrorem (ie to punish or deter parking over 30min)? Or are they offered in consideration of you staying longer and paying? jb so, when you said I was wrong - I wasn`t, you were? Link to comment Share on other sites More sharing options...
barleycorn Posted January 10, 2013 Share Posted January 10, 2013 I`m not asking about the court ruling - I have just bought a bomb site in town, are you seriously saying I cannot charge parking? ---------- Post added 10-01-2013 at 16:11 ---------- no its not, I can charge what I like for parking on my land, same as I could charge what I like for a carpet if I sold carpets for a living. ---------- Post added 10-01-2013 at 16:14 ---------- it`s not a penalty I choose to give you the first two hours free as its not worth my while to collect them, I then charge the next 20 hours at a fixed price of £80.00. see above Move the goal posts much? This is your original post no, he meant invoices - for the sake of this thread imagine there are clear signs 6ft high on entry and around the car park saying parking free for 2hrs - £80.00 if you stay longer than that. are you saying I as the actual landowner cannot enforce that charge? You see the difference? jb Link to comment Share on other sites More sharing options...
gym_rat Posted January 10, 2013 Share Posted January 10, 2013 Move the goal posts much? This is your original post You see the difference? jb no, the only difference is the one you can see. Link to comment Share on other sites More sharing options...
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