New aspects about the penalty clause in current legislation

• Author: Ana-Maria Macarescu
• Pages: 193-201

NEW ASPECTS ABOUT THE PENALTY CLAUSE IN CURRENT LEGISLATION

PhD student Ana-Maria MCRESCU

1

Abstract

The penalty cla use is that ancillary agreement in which the parties predetermines the equivalent loss

suffered by the creditor a s a result of the failure, dela y or improper per formance of the obligation by the debtor.

Over time, the legal natur e of penalty clause has been a controversial subject. The provisions of the new Civil Code

establishes a mixed theory of the legal nature of the penalty clause aiming at fulfilling its main function, namely the

private penalty function and the repair function, plus the comminatory and warra nty.

Key words: agreement, obligation, penalty clause, damage

JEL Classification: K12

The obligation relationship, regardless of its source

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, entitles the creditor to the debtor

claims to give, to do or not do something. In principle, this benefit positive or negative

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, is

voluntarily

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executed by the debtor. Otherwise, the creditor may resort to coercive power of the

state to ensure they meet.

As an effect of any obligation is the right of the creditor to claim the debtor and obtain

from the debtor the exact fulfillment that is required – the creditor is entitled to accurate and

timely fulfillment of the obligation

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. Also as a result of the requirement appears the creditor's

right to claim damages or to use any other means provided by law for the implementation of its

right, in case of partial or total non-performance or inadequate performance if the debtor.

Where performance of the contract is as it was assumed, the parties are in the presence of

direct execution of civil obligations, and if the performance can’t be made in kind, we talk about

indirect execution or equivalent.

Direct enforcement or execution of the nature of the obligation is to meet exactly

(exactly) the benefit to which the debtor was required in the legal obligation.

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The general rule is

that the debtor must perform as it was assumed, willingly. The direct and voluntary execution of

civil obligations by the debtor is called payment. According to Article 1469 of The Civil Code,

the payment is remission of a sum of money or, as appropriate, carrying out any other benefits

which are subject to the obligation itself. Therefore, payment leads to the extinction of the legal

relationship between the parties by making intentional outcome.

In practice there are situations in which the debtor does not perform its obligations

voluntarily, so no payment is made. Such cases are the exception to the rule against enforcement

of obligations voluntarily. Thus, the creditor, in order to exploit its subjective civil law heritage

may request enforcement, meaning recourse to means which the law makes available to compel

the enforcement debtor does not pay.

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In case of failure, late or inadequate performance of the obligation by the debtor, the

creditor may require enforcement, rescission or termination, reducing their correlative obligations

1

Ana-Maria Mcrescu, Police Academy „Alexandru Ioan Cuza”, Bucharest, ana.macarescu@yahoo.com.

2

According to art. 1165 Civil Code springs obligations are: contract, unilaterally act, business management, unjust enrichment,

undue payment, unlawful act and any other act or fact which link the birth of a law obligations.

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Positive obligations involves an action - to give, to do, while negative ones imply an abstention - not to do.

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See art. 1469, paragraph 1 of the Civil Code.

5

See art. 1516 Civil Code.

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I Dogaru, P. Draghici, Fundamentals of civil l aw, Vol.III, General theory of obligations, CH Beck Publishing House,

Bucharest, 2009, p 412.

7

See art.1516 of the Civil Code.