Outside the oil and gas context, contractual terms of „taking or paying“ are often dismissed by the courts as unenforceable penalties. The courts consider them to be „liquidated compensation clauses,“ which must be based on an appropriate reconciliation of the actual harm suffered by one party as a result of the other party`s infringement. „Take or pay“ generally does not meet this standard. a sewage treatment plant that discharges wastewater from a passing authority and converts it into clean water and a residue that can be used as fertilizer. This means that, despite a clear and enforceable means of contractual retaliation, the take-away seller may find that he still does not have reliable cash flow from the buyer, and his ability to cover current operating costs and pay off debts depends on his ability to quickly and successfully resell quantities not praised by the buyer. If the contract also contains a typical exclusion clause in which a party cannot claim damages for loss of profits or business opportunities, the seller may, even without a valid remedy, for violation of the buyer. Fortunately, in the case of repurchase and payment contracts, the seller may also make use of his appropriate guarantee rights in the event of a breach or delay in payment of the purchaser under U.S. law, to which Article 2 of the Single Code of Trade (UCC) applies. In this case, the seller may be allowed to suspend the continuation of the contract until he has received assurances from the buyer.

It is interesting to note that neither the English nor the American courts have defended the position that the existence of a right of make-up is a precondition for the implementation of a take-or pay clause. In some U.S. cases, the courts have ruled that if a right to makeup exists, but the buyer is not able to take such amounts of makeup in the future the buyer is not excused from his obligation to fulfill the contract in its entirety. Moreover, most experienced energy lawyers and commentators agree that the existence of a reasonable right of make-up makes it much more difficult for a buyer to later argue a defence that the clause is an unenforceable sanction.