期刊名称：Social Transformations in Contemporary Society
印刷版ISSN：2345-0126
出版年度：2013
期号：1
页码：153
出版社：Mykolas Romeris University
摘要：In this article the regulation in regard of penalty clauses within two different legal traditions, i.e. common law tradition and continental law tradition, is analyzed. In general a penalty clause implies a fixed sum, which has to be paid by a party for the failure to perform its contractual duties timely and duly. In common law world penalty clauses are rendered unenforceable, whereas civil law countries, including the Republic of Lithuania, consider such clauses enforceable to the extent that the stipulated amount is not excessive. Moreover, in the article attempts to reach a uniform regulation throughout various legal instruments are revealed. Purpose: to analyze the regulation of penalty clauses within different legal systems. Methodology: a systematic method was used in order to ascertain the content and true meaning of the legislation concerning penalty clauses, whereas comparative method allowed comparing such legislation among different jurisdictions. On the basis of analytical method conclusions were withdrawn.Findings: common law courts on the basis of just compensation principle may declare a clause, which stands for a penalty, unenforceable, whereas civil law courts may only reduce grossly excessive amount. However, under major soft law instruments, such as the UNIDROIT Principles1, PECL2 and DCRF3, the divergence from common law rules of non-enforcement of penalty clauses is evident. Although there is a lack of binding transnational rules that control the enforceability of penalty clauses across the countries, it seems that today the most feasible solution consists of the approval of national rules, which would shield the enforcement of penalties in international commercial contracts in common law jurisdictions.Research limitations: in the light of the civil law system terms of liquidated damages and penalty clause are used interchangeably, since both are enforceable. However, a distinction between the two can be made on the basis that a liquidated damages clause is used to estimate damages in case of breach, provided that there has been an actual harm to the plaintiff, whereas a penalty clauses is used to establish a penalty to be paid in case of breach with the intent to encourage performance. The latter also does not require proof of any real damage. Practical implications: the article initiates a discussion on the importance of ensuring the legal certainty in contractual relations, particularly in the field of enforceability of penalty clauses, not only on the national but also on the international level. Originality/Value: in the law of contracts the clash of common law and civil law in respect of the treatment of penalty clauses has drawn a lot of attention of scientists and researchers; however, the question of this article, i.e. how to eliminate the clash between two different legal systems and to achieve binding uniform regulation that would control the enforceability of penalty clauses, remains of high importance.
关键词：common law system; civil law system; penalty clause; liquidated damages
