They should not be expressly a sanction or deterrent in the event of an infringement, as this would render the clause inapplicable. Mark, where you say, “It would be advisable to record the reasons for the number data in a file note,” I would go further by explaining the reasons in a footnote to the treaty itself. This is exactly what I have done in many contracts, although I do not remember doing it for lump sum damages. The “other party” may not bother to delete the footnotes of the final draft before signing – I have seen this several times – in which case the declaration will be part of the treaty. Very interesting. Thank you very much. The `normal` regime laid down by Dutch law therefore appears to be that contractual penalties replace the damage, but the parties may contractually abrogate it. .

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