REDUCEREA CLAUZEI PENALE – REȚINUTĂ A FI „VĂDIT EXCESIVĂ” ÎN TEMEIUL ART. 1541 ALIN. (1) LIT. B) DIN NOUL COD CIVIL – CONSTITUIE O FACULTATE SAU O OBLIGAȚIE PENTRU INSTANȚA DE JUDECATĂ?

Under Article 1541 (1) b) of the new Romanian Civil Code, among the conditions in which the court may reduce the quantum of the penalty is also the condition that the penalty should be clearly excessive in relation to the damage that could be provided by the parties upon the conclusion of the contract. This text of the new Romanian Civil Code, which entered into force on 1 October 2011, has generated a controversy, in the sense that, once the „clearly excessive” character of the penalty has been retained, the court shall be required to proceed to the reduction thereof or, on the contrary, it has only a faculty (possibility) to proceed as such. In the opinion of the author of the study, the second interpretation is the judicial one.