EIRP Proceedings (Jun 2009)
Considerations concerning the criminal clause, expression of contractual principle and law abuse
Abstract
The criminal clause is an accessory convention through which the parts evaluate in advance the prejudiceinterestswhich come from the inexecution lato sensu of the contractual obligations. This convention named criminalclause is the expression of the contractual liberty principle and presents a singular practical utility but also someinconveniences. Thus the criminal clause allows avoiding the difficulties of judicial evaluation of prejudices-interests.In this way, the creditor is not obliged to evidence the existence and the size of the prejudice, in order to obtain thepayment of the amount of money or carrying out other patrimonial value established in the criminal clause beingsufficient the proof of non inexecution lato sensu of the contractual obligation. The criminal clause has also a strongcomminatory purpose, exercising a pressure on the debtor to make all possible to execute precisely the contractualobligation. Due to these reasons it is seen in doctrine by some of the authors as one of the main guarantees in our law.Also in the doctrine however, it is shown that the debtor can be constrained in some situations to accept establishing avery high amount in the criminal clause, sometimes with inequitable consequences, with damaging effect for thedebtor.
