Sometimes the parties effort to make the contractual punishment an absolute tool – independent of the debtor's fault. However, as the ultimate Court recalled in its July 2024 ruling, in accordance with Article 483 of the civilian Code, a contractual punishment may be reserved solely for failure to execute or improperly execute the work for which the debtor is responsible.
The ultimate Court made it clear:
‘If a debtor cannot be attributed to a wine within the meaning of civilian law, he may not be liable for a circumstantial condition by contractual penalty.’
This means that any effort to circumvent this regulation by contractually extending the grounds for charging penalties, for example to cases of random events or parties independent of them, may be challenged and considered ineffective.
The amount of the contractual punishment – how not to exaggerate?
Another crucial aspect is the proportionality of the amount of the contractual penalty. Although the parties have considerable freedom to establish it, it is not unlimited. Both doctrine and jurisprudence let the anticipation moderate contractual penalty by the court – especially if it is considered to be Gratefully Exaggerated.
Special care should be taken in contracts concluded with consumers. The amount of the punishment must correspond to the actual damage, otherwise it may be considered not permitted clause, which in turn leads to its annulment and may consequence in a charge of violating the collective interests of consumers.
How can we effectively safe a contractual penalty?
To safe your interests effectively and legally, it is worth following respective key principles:
- Make your provisions precise – avoid generalities and identify circumstantial violations that consequence in punishment.
- Specify the maximum penalty – e.g. by charging it for each day of delay, but with the end limit.
- Do not reserve a punishment for events that are independent of the debtor – there must be wine within the meaning of civilian law.
- Include consumers – in B2C relations, the punishment must be proportionate to harm and compatible with consumer law.
Conclusion: The contract is not everything – it is about precision and legality
A well-designed contractual punishment clause may be a key component in safeguarding the interests of the party. However, to be effective, it must be based on legal provisions and current case law. deficiency of responsibility with the debtor, grossly excessive amount or indiscriminate provision may effectively prevent enforcement of claims. It is so worth utilizing a lawyer or a specialist who will guarantee compliance with the rules and the case law.
In case of doubt, it is worth consulting a lawyer to avoid unnecessary disputes.The information on the website is simply a description of the legal position at the date of publication and is not a legal advice on an individual case. The legal position of publication may change. The law firm is not liable for utilizing an alert to solve legal problems.
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