Blank v. Borden

I dissent. The majority never reach the question whether the "commission-on-withdrawal" clause in the instant case was an invalid penalty clause or an enforceable liquidated damages clause. (See Civ. Code, §§ 1670, 1671.) Instead, the majority neatly sidestep this issue by labelling the brokerage contract as one contemplating an "alternative performance" by the owner in the event he exercises his "true option" to withdraw the property from sale. To the contrary, the issue in this case cannot be avoided by the facile use of labels — otherwise any illegal penalty could be disguised as a "true…