Liquidated Damages

"ORS 72A controls commercial transactions, and liquidation of damages is covered under 72A.5040. This clause holds that:

(1) Damages payable by either party for default, or any other act or omission, including indemnity for loss or diminution of anticipated tax benefits or loss or damage to the lessor’s residual interest, may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default or other act or omission. A provision in the lease agreement which states that damages in the event of the lessee’s default and the lessor’s sale of the goods include, in addition to costs payable to third parties, any past due amounts plus the sum of the present value of future rentals, the lessor’s costs of enforcing the lease, the lessor’s reasonably predictable residual at expiration, reasonable compensation for any loss of tax benefits, or an equivalent amount, and any other damages suffered or to be suffered by the lessor because of the lessee’s default, less the net proceeds of sale, is reasonable.

(2) If the lease agreement provides for liquidation of damages, and such provision does not comply with subsection (1) of this section, or such provision is an exclusive or limited remedy that circumstances cause to fail of its essential purpose, remedy may be had as provided in this chapter.

(3) If the lessor justifiably withholds or stops delivery of goods because of the lessee’s default or insolvency under ORS 72A.5250 or 72A.5260, the lessee is entitled to restitution of any amount by which the sum of the lessee’s payments exceeds:

(a) The amount to which the lessor is entitled by virtue of terms liquidating the lessor’s damages in accordance with subsection (1) of this section; or

(b) In the absence of those terms, 20 percent of the then present value of the total rent the lessee was obligated to pay for the balance of the lease term, or, in the case of a consumer lease, the lesser of such amount or $500.

(4) A lessee’s right to restitution under subsection (3) of this section is subject to offset to the extent the lessor establishes:

(a) A right to recover damages under the provisions of this chapter other than subsection (1) of this section; and

(b) The amount or value of any benefits received by the lessee directly or indirectly by reason of the lease contract."