first before the breach the seller had received and processed a competing offer for seven point one million dollars which was a hundred thousand dollars more than the intel and seven million dollars offer you look at the you use reasonableness as a touchstone and then you consider the totality of circumstances those circumstances in the cases including i assume among other factors the intent of the corys the bargaining relative boring power of the parties whether or not the there was a reasonable reasonably foreseeable good faith estimate of the actual damages or proximate  you say that the wall of new jersey is at least sufficiently clear that there really wasn't anything here for the district court to have to predict that to the extent he thought he had to  heat this really was not necessary he needed only to apply the standard that we already have in the two jersey cases and i believe the statement is correct your honor there was nothing to predict because at the time of the breach which was in court before bankruptcy judge ferguson and jenny were twenty fourth two thousand and five simultaneous with the breach there was a competing bid clause they did but the case law is clear that even were the portuguese have it intended as to what would try to form an estimation as to what the damages would be and stipulate to the damages because of that if they're that the sum of two hundred fifty thousand dollars was a reasonable liquidated damages at the time of the foundation particularly when we were asked on how do you rebut the fact that it's reasonable particularly when your clients ask for  remotely the part of some analysis as to what damages would be where in the law is an analysis an economic analysis required anywhere where in the two major new jersey cases you rely upon is that is some kind of analysis by which i assume you were suggesting some sort of objective economic analysis be on the negotiation of the parties where they wonder if the case law is clear that that the damage clause in order to be held to be reasonable even if it's best for by one party has to comport with an estimation some analysis as to what damages would be this was in this three point five percent of the purchase p it was absolutely going to be reasonable because every factor that may have warranted a finding of reasonableness that contract formation was no longer there and specifically and most importantly and there's a good lot of case law that this  incorporated by the new jersey supreme court the appellate division and various other jurisdictions which focuses on an assessment of actual damages and even if that factor was not dispositive didn't of itself iran or the other factors articulate question there are one or so so we can't be talking about a test this is if there are no actual damages this is then one reason can't because automatically in this process if the issuance of being is that i was referred to as soup so we understand then over so i'm understanding your position you do agree that you must to show one reasonable miss demonstrate no actual time contract formation or time bridge that's correct and if they have said that it seems to me in this case measuring reasonable the city to one of these posts you a very very heavy burden to a brick come by showing it at the time of formation at two hundred fifty thousand dollars is not reasonable i agree and so how do you do that i do it because if you're on the time of the breach and at the time of the breach there were seven million escrowed competing offer and a bit more said i could do with what's it have to do with the parties deciding to at the time of formation we're not going to worry about fighting about damages in the future we're going to say that the damages if this breached two hundred fifty thousand dollars nothing because the courts are not how can you win them with that answer because the because the courts can't consider and must consider reasonable this at bo means the analysis of looking at actual damages and the modern view and the case law that says hindsight is better than foresight and requires an unknown determination that if it's million one week for all that has already been distributed to creditors there has been no formal the bankruptcy judges decision was based on punitive result oriented considerations when the bankruptcy judge spoke of mice my schedule decision however the present state of all throughout the united states is summarized in the following statement and i will read that statement strongly supports the proposition that is seller who has suffered no form cannot retain a deposit dealt with in a consumer contract as opposed to a commercial contract and that was a distinction drawn by both the better to judge and it is rude court judge here there was i think a distinction to be drawn his that between damages and harm here there was actual potential damages intensity or harm but there was also some leverage between my clients and the seller will likely and had no leverage at that point one was imploring the bankruptcy court to accept its money for seven million dollars this was not a buyer that ran away from the deal breached the contract and is now come before the court to say please give me my deposit this is a bar that implored the court to accept it seven million dollars and is now trying to prevent the creditors who bargain for the benefit of the bargain was the plan of reorganization  confirmed that the creditors voted on they got a million point one more or less some minor attorney's fees and incidentals that the benefit of their board and now they want another two hundred fifty thousand dollars i  i'm still curious about how you can maintain that there was some something that would amount to a windfall as of the date of the breach and especially if you conceded that the breach was on january fourteenth or for that matter any date up to up any date before january twenty fi when the deal had not been completed the money was not in hand it had not been consummated and based on it to tell you the circumstances and the facts of this particular first range from five point seven five million which was a million to five less than the contract price to six million six hundred seventy people were all less they were all they were all less so every deal up to that point that had been offered was less than the seven point zero and those deals came in with no competitive bidding no information as to what solicitation and a requirement at least in one of them that the general manager of the debtor required seventeen and a half percent of the participation in the buyer and another group or you of the debt required twenty percent which we have twenty boys they're not big on certainty about whether or not this new dr was going to close i believe there was