N.C.P.I.—Civil 503.94

The (state number) issue reads:

"Did the plaintiff and the defendant enter into a valid agreement

stipulating the amount of damages defendant would owe the plaintiff in

the event the defendant breached the contract?"

(You will answer this question only if you have answered the (state

number) issue "Yes" in favor of the plaintiff.)

On this issue the burden of proof is on the plaintiff. 2 This means

the plaintiff must prove, by the greater weight of the evidence, two

things:3

First, that the damages which the plaintiff and the defendant might

reasonably anticipate from a breach of their (name contract) were, at the

time they entered into (name contract),4 difficult to ascertain because of

their indefiniteness or uncertainty.

And Second, that the amount of damages stipulated by the plaintiff

and the defendant was either a reasonable estimate of the damages

which probably would be caused by a breach or is reasonably

proportionate to the damages which have actually been caused by the

breach.

(In deciding whether the amount of damages stipulated by the

parties was a reasonable estimate of the damages which probably would

be caused by a breach, you may consider

[the nature of the contract]5

[the words used by the parties to express their agreement]6

[the intentions of the parties]7

[the difficulty of proving the damages which might otherwise result

from a breach of the contract]8

[the number of ways the contract could be breached and the varying

damages that might result from each type of breach]9

[the relative bargaining power of the parties]10

[the relative sophistication of the parties].11)

(The damages stipulation must be a sum certain or a mathematical

formula that will result in a sum certain.)12

(If the damages anticipated by the parties were reasonably

estimated, they are recoverable even though no actual damages are

suffered.)13)

Finally, as to this (state number) issue on which the plaintiff has

the burden of proof, if you find by the greater weight of the evidence that

the plaintiff and the defendant entered into a valid agreement stipulating

the amount of damages the defendant would owe the plaintiff in the

event the defendant breached the contract, then it would be your duty to

answer this issue "Yes" in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.