Short answer. Then the stipulation does not govern. Article 2228 provides that when the breach committed is not the one the parties contemplated in agreeing upon the liquidated damages, the law determines the measure of damages and not the stipulation. You fall back on ordinary proof of loss.
What the law says
When the breach of the contract committed by the defendant is not the one contemplated by the parties in agreeing upon the liquidated damages, the law shall determine the measure of damages, and not the stipulation.
Civil Code, Article 2228 — Partial or Irregular Performance. Read the full provision →
The clause is read against what the parties had in mind
A liquidated damages clause is a bargain about a particular failure. Article 2228 asks which breach the parties were pricing when they wrote it, and if what happened is not that breach, the law shall determine the measure of damages, and not the stipulation. A clause fixing a daily sum for late completion is aimed at delay; it is not obviously a price for abandoning the site, delivering the wrong thing, or breaching a confidentiality term. The question is one of construction, answered from the clause and the contract around it rather than from what either side now wishes it had said.
It cuts both ways
The article is neutral between the parties, which is easy to forget when it happens to help you. If the stipulated figure is larger than your provable loss, the party in breach will invoke it to escape the clause. If it is smaller, you will invoke it to climb out from under a cheap cap. Either way the same test applies, and it is decided by what the clause was for rather than by who benefits from the answer. So be honest about which side of that line your facts sit on before building a strategy on it.
What falling back on the law involves
Proving damages in the ordinary way, which is a good deal more work than pointing at a number. Article 2199 gives adequate compensation only for pecuniary loss duly proved. Article 2200 confirms that indemnification comprehends both the loss suffered and the profits you failed to obtain. And in contracts, Article 2201 confines an obligor in good faith to the natural and probable consequences that the parties foresaw or could reasonably have foreseen when the obligation was constituted. Assemble the evidence for those before you decide to abandon the clause.
Read your own clause closely
Which obligation does it sit next to, what event triggers it, is the sum expressed per day, per incident or as a lump, and does the contract provide other remedies for other failures? A clause drafted broadly enough to cover any breach is harder to escape than one tied to a single milestone. Where the drafting is genuinely ambiguous, that ambiguity is itself worth advice, because the answer decides whether your claim is a computation or an exercise in proof.
Related provisions
- Civil Code, Article 2227 — Reduction of Iniquitous Liquidated Damages
- Civil Code, Article 2199 — Actual Damages Must Be Proved