Tort Liability. Damages And Penality Clause

• Author: Raluca Antoanetta Tomescu
• Pages: 254-259

TORT LIABILITY. DAMAGES AND PENALITY CLAUSE

Assistant professor Raluca Antoanetta TOMESCU1

Abstract

Tort liability has always been a constant manifestation of social life in the community, having as its main effect

the birth of a new legal obligation al relationship established between the author of the deed which caused the prejudice

and the injured person. Apodictically, legal liability will result in an attempt to repair the damage created mainly in

kind, and when it is no longer possible to repair the damage, it will be in the form of damages established legally or

judicially, or in the form of a penality claim in the case of conventional damage. F rom this perspective, we considered it

appropriate to emphasize the effects on the penality clause o f the hypothesis of intervention on the contract with

another sanction of law, applicable in the ca se of culpable non-fulfilment of the contractual obligations, namely

cessation or termination. The current Civil Code determines that, upon termination of t he contract, the parties will be

released from any obligation. Therefore, by termination of the con tract, as a result of the declaration of termination,

respectively of the cessation, the obligations stipu lated in the penality clause are abolished, becau se the source itself

was abolished, as we ca n no longer speak of a contractual obligational liability. Of course, in this hypothesis, the

creditor will have at hand to claim non-con tractual damages, where the person who considers himself prejudiced has to

prove the damage and its source.

Keywords: damages, penalty clause, compensatory damage, moratory dama ge.

JEL Classification: K12, K13

1. Introduction

The special relationship established between society and the individual has apodictically

imposed social responsibility as a constant fundamental condition of cohabitation in the community.

This sui generis relationship has permanently involved both condescension, but also the sanctioning

of the individual, reporting his attitude to the expectations of the community, but especially to the

social norms imposed by it2.

As a matter of principle, no one will be tolerated that by his/her behaviour to breach or

ignore the rights and interests of another person. Regardless of whoever breaches this elementary

rule, he/she will be obliged to answer for his/her actions, so liability and sanction will always be

two aspects of the same social phenomenon, giving rise to a cause-to-effect relationship3.

When a breach of a rule of law is found, a new form of social liability, that is to say, legal

liability, which will work alongside moral or religious liability as an integral part of it, is set up.

Legal liability will therefore be one of the most important and frequent concrete

manifestations of the social responsibility of the person. While preserving its position gained in the

oldest times and which it has not ceased to have at present, legal liability can be said to express the

very essence of the notion of law in its most concrete form and which in fact will reflect the whole

stage of the evolution of social life, in its dynamics.

In terms of the substantive and form conditions, characteristic of each branch of law, a

specific form will correspond to legal liability and related sanction. Thus, along with criminal or

administrative liability, civil legal liability is a fundamental, very extensive and complex institution

of civil law, which has in principle the idea of responsibility and accountability of the person.

Civil liability will permanently result in a sanction imposed on the guilty person, as stated in

the axiom, according to which any person is obliged to repair the damage caused to another person

by his/her contractual or extra-contractual action.

1 Raluca Antoanetta Tomescu – „Andrei Saguna” University of Constanța; PhD. student at „Nicolae Titulescu” University of

Bucharest, Romania, ratomescu@gmail.com.

2 „Social norms are the institutionalized form by which human behaviour is appreciated, their breach always implying social

responsibility" L.R. Boilă, Răspunderea civilă delictuală obiectivă (Objective tort liability), C.H. Beck Publishing House, Bucharest,

2008, p.21.

3 "Every cause has its effect, and every effect h as its cause and nothing escapes from this", Armeanu Ion, The Law of Cause and

Effect, www.oportunitati-afaceri.ro (25.09.2018).