Nevertheless, it appears that in Kelly, and the cases decided thereafter, the SJC has left open the possibility that a liquidated damages clause will be set aside if it grossly overestimated or underestimated a party's damages at the time of contract formation. See Kelly, 705 N.E.2d at 1116 (liquidated damages provision will not be enforced if it provides for an amount "grossly disproportionate to a reasonable damages made at the time of contract formation"); Howard v. Wee, 61 Mass.App.Ct. 912, 811 N.E.2d 1050, 1052 (2004) (noting that $1,000 in liquidated damages was not "unreasonably low," but not questioning that unreasonably low liquidated damages can be set aside under Kelly). We must therefore determine whether the liquidated damages provision at issue in this case was, as a matter of law, grossly disproportionate to a reasonable estimate of the damages Kunelius would incur in the event that the sale of her $1.16 million property was not successful.

The OTP, in part, addressed the remedy for failure to perform under its terms. As was the case in Howard v. Wee, 61 Mass. App. Ct. 912, 912-913 (2004), the OTP here included standard language limiting the seller's recourse to retaining the $1,000 deposit made along with the tender of the OTP: "If I do not fulfill my obligations under this Offer [including the obligation to sign the PS on or before February 26, 2008], the above mentioned deposit shall forthwith become your properly without recourse to either party. . . . A similar provision shall be included in the Purchase and Sale Agreement with respect to any deposits held under its terms." The OTP here "contains no parallel limitation of the buyer's recourse for a breach by the seller.