Aplicarea principiului echilibrului contractual în materia reducerii clauzei penale excesive

drd. EUGEN SÂRBU*

* e-mail: eugen@sarbupartners.ro

Avocat partener - "Sârbu Partners"

ABSTRACT

The reduction of an excessive penalty clause has given rise to, and continues to give rise to, an inconsistent practice in Romanian courts.

Firstly, there is a tendency to treat the possibility of reducing the penalty clause rather as an obligation, whereas the fulfilment of the conditions for reducing a penalty clause does not mean that it is mandatory to reduce it, but merely gives rise to a possibility that must be exercised in accordance with the principle of contractual balance, with reference to the entire architecture of rights and obligations contained in the contract, as well as the preventive function of the penalty clause.

Secondly, the creation of a uniform practice requires the identification and systematisation of a clear set of objective criteria to be applied by the courts when faced with a...