ASPECTE TEORETICE ȘI JURISPRUDENȚIALE REFERITOARE LA REDUCTIBILITATEA CLAUZEI PENALE ÎN CODUL CIVIL

The institution of the penal clause, regulated in Articles 1538–1543 of the new Civil Code, still encounters different interpretations, even contradictory sometimes, in the judicial practice and in the solutions of the courts. In particular, the interest of the practitioners and of the specialized doctrine is based on the possibility conferred to the court of law to reduce the penal clause in the two cases provided by the legislator, namely when the main obligation has been executed by the debtor to the benefit of the creditor and when the penalty is clearly excessive in relation to the prejudice which might have been foreseen by the parties on the conclusion of the contract. This study aims to analyse thoroughly the two hypostases in which the judge is allowed to defeat the principle of binding force of the contract and to intervene in the decrease of the quantum of penalties, an analysis materialized both from a theoretical point of view and especially from a practical point of view, offering relevant solutions from the recent judicial practice.