60 Remedies for non-performance

The Article on stipulated pay-ments for non-performance129. could be said to be more favourable to market efficiency than rules which regard penalty clauses as completely unenforceable.130. Questions might be asked about the second paragraph of the Article which allows a stipulated payment to be reduced to a reasonable amount when it is grossly excessive in relation to the loss resulting from the non-performance,131. but here there are considerations of justice to weigh in the balance. The allowance of damages for pure economic loss seems to be preferable from the point of view of efficiency to the denial of such recovery, as happens under some systems.132. It is difficult to see any justification for distinguishing between pure economic loss and loss caused by damage to property or injury to the person. The question of whether the other rules on damages are optimal from the point of view of general efficiency seems to be a matter of debate.133.