Mandle v. Owens

Dissenting Opinion on Denial of Transfer

Hunter, J.

I dissent to the denial of transfer in this case. It is my belief that the Court of Appeals erred in its determination that the “earnest money” provision in the sales contract between the Mandles and Owenses was a penalty clause rather than an agreement upon liquidated damages.

*253The term “earnest money” comes to us from the civil law and is defined: “ [a] sum of money which one of the contracting parties delivered to the other at the time of the contract, and presumed to be a forfeit, in the absence of evidence that the parties intended to bind…