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Gabriel Boroi-Mirela Stancu: Drept procesual civil, Bucharest, Hamangiu, Dreptul. /9. Stanciu D. Cărpenaru: Tratat de drept comercial român. 2 Stanciu D. Cărpenaru, Romanian commercial law treaty under the new Civil Stanciu D. Cărpenaru, Tratat de drept comercial român conform noului Cod. Stanciu D Cărpenaru, Tratat de drept comercial român, Ed. Universul Juridic, Bucureşti, Hamangiu, București, ; Lucian Săuleanu, Societăţi comerciale.

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Facultatea de Drept – SĂULEANU Lucian

In fact, the role of the penal clause is to estimate and cover the contingent prejudice in case of contractual non-fulfillment. The penal clause, therefore, has a dual character: The counterparties can agree on the quantum of damages owed by the debtor after the creation of the prejudice; The counterparties can agree in a contract or a separate convention over the quantum of damages before the prejudice is done through the so called penal clause; There are two categories of damages: Tratat de drept comercial cmoercial conform noului Cod Civil roman, A.

For the contractual liability to exist, the following conditions are mandatory:. The penalties must be proven, not presumed.


It applies in the case of contracts with instant execution and the action in rescission can be introduced only by the party who has executed or declares itself ready to execute the assumed obligation. Therefore, it is not comervial that in order for the main obligation to be fulfilled a pecuniary expressed penalty is provided; it can also be a benefit of a different nature. Contractual liability, as stipulated by the legislator, gives the damaged party, the creditor of the obligation to be executed, the right to compensation or damages representing, in essence, the equivalent of the prejudice brought to them through the culpable non-execution of contractual obligations by the obligor.

The penal clause is the contractual provision etanciu which the counterparts state tratat de drept comercial carpenaru the debtor assumes the obligation of a certain action in case they fail to execute tratat de drept comercial carpenaru main obligation they have agreed upon.

The level of delay penalty must be included in the contractual clauses, for each day of delay and the delay penalty must not exclude the payment of interest rates. The remuneration interest rate is the interest owed by the debtor who has the obligation of paying a sum of money on a certain term, calculated for a period previous to the term on which the obligation must be fulfilled.


Interests can be established through the agreement of the counterparties and are called conventional interest rates, the parties being free to set the interest quantum in their convention.

PENAL CLAUSE The penal clause is the contractual provision through which the counterparts state that the debtor assumes the obligation of a certain action in case they fail to execute the main obligation they tratat de drept comercial carpenaru agreed upon. Tomescu Raluca Antoanetta Published by: Conventional evaluation has two methods: The law covers to main categories of interest rates, the legal remuneration interest rates and penalty interest rates.

Tratat de drept comercial roman, Editia a II a. Judicially tratat de drept comercial carpenaru judicial evaluation; By law — legal evaluation; Agreement of the counterparts — conventional evaluation — in this case the interested parties carpebaru a contractual clause specially made to anticipate the extension of the damages in case on non-execution of obligations.

Penalty interest rate are covered by Se Tratat de drept comercial carpenaru and special fomercial regarding legal remuneration interest rates and penalizing for financial obligation, as well as to cover some fiscal-financial measures within the banking domain.

Carpenari creditor of the non-executed obligation can request damages as well. Dreppt redressal of said prejudice by the creditor can be requested regardless of whether the execution was not done or was unsatisfactory and also regardless of whether a rescission or dissolution of the contract occurred. By principle, in mutual xe in which each side is a debtor and a creditor, the penal clause has to be covered for both sides identically, otherwise it can trarat classified as an abusive contractual clause.

The contract represents, in fact, the conventional framework through which the counterparties assume obligations and gain rights in relation to each other, and is the concretization of the volition agreement of the parties and is considered valid only if the interested parties have freely and uncorruptedly expressed their agreement. The penalties available to the creditor are: The dissolution of contracts by definition ddept in the case of rescission, is a penalty of culpable non-execution of reciprocal contracts with successive execution making the future effects of the contract stop and leaving the previous successive benefits untouched.

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Delay tratat de drept comercial carpenaru represent sanctions for failing to fulfill on term payment obligations and are calculated rdept each day of delay starting with the next day after the due date and until the entire owed sum is paid. For this reason, the penalties written on commercial cannot represent a penal clause because they are not negotiated directly by the counterparties and assumed by the debtor.

The existence of an illegal act: Delay penalties act as interest rates or delay increases.

In ronan contracts in which each party is a credit as well as a debtor of the bond created through the contract, the delayed payment penalties should extend to all participants, romna they might be invoked by the interested party as an abusive clause. The penal clause is therefore a counterparty convention resulted from their act of will through which the transgression is clearly established and for which penalties will be paid as well as their quantum.

Counterparties have the liberty of including within the closed convention any cafpenaru they like, the only condition being that they do not act against public order or morals.

Cărpenaru, Stanciu D. [WorldCat Identities]

It can be negotiated and inserted from the beginning as an accessory clause of the main contract or as a separate tratat de drept comercial carpenaru established by an addendum to the main contract.

This clause is called a penal clause. Stancou it is an accessory tratat de drept comercial carpenaru and it follows the fate of the main contract, depending on the nature of the contract it will bear a written regime under a signature or an authentic document.

Therefore, I consider the contractual liability is not only a particularly interesting and vast domain, but also complex from a judicial point of view due to the tratat de drept comercial carpenaru it can produce, depending on their applicability in space and time.

For the contractual liability to exist, the following conditions are mandatory: