romanian english

Maria DUMITRU: „The main obligation” – reference for reducing the manifestly excessive penalty clause

Abstract: The provisions of art. 1541 (1) b) of the Romanian Civil Code gave the Court the possibility to reduce the penalty clause when it is manifestly excessive compared to the prejudice that could have been foreseen by the parties when signing the contract. The maximum limit of the Court’s interference was also set: the penalty – even reduced – must remain superior to the main obligation under the sanction of deeming as unwritten the clause that would allow the contrary. The surprising threshold chosen by the Romanian legislator generates a great deal of difficulties in practice. Therefore, we find it appropriate that a future form of art. 1541 of the Romanian Civil Code – the need for which we argued several times – would also refer to this matter. Deeming the contrary clause as unwritten, as indicated by art. 1541 (3) of the Romanian Civil Code – a new sanction in Romanian private law – is part of our research as well.

Key-words: penalty clause, reducing the manifestly excessive penalty clause


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