The Calcutta Weekly Notes Law Notes and Notes of Cases of the Calcutta High Court and of the Judicial Committee of the Privy Council and the English Courts Monday June 11 1906

The solution of such question often depends on the intention of the parties as gathered from the language as also the whole tenor of the contract and the surrounding circumstances. [...] If after such considerations the Court comes to the conclusion that the object of a certain stipulation in a contract is merely to secure the performance of a contract then the stipulation is not enforced ; it is declared to be a penalty and the party who has stipulated for it has only to pay reasonable copensation to the other party for his noperformance of the essential part of the contra [...] The use of the word damage " is not of any help in the construction of the oontraot for It has been held repeatedly in English Courts of Law that " the question whether a sum mentioned as payable in the event of non-performance of a cotract is a penalty or liquidated damages is a quetion.of intention upon the whole tenor of the contract having regard to the surrounding circustances and [...] D. p. 266 "It is of the utmost importance as regards cotracts between adults—persons not under disability and at arm's lenght—that the Courts of law should maintain the performance of the contract according to the Intention of the parties that they should not overrule any clearly expressed intention on the ground that Judges know the business of the peopla beater than the people know it them [...] But this seems to be the only excursion of the learned compiler into the regions of poetry We t rust however that the humour of the thing will become apparent to the author by the time a second edition is ready for the press.