EIRP Proceedings, Vol 4 (2009)

Abstract

The criminal clause is an accessory convention through which the parts evaluate in advance the prejudiceinterests which come from the inexecution lato sensu of the contractual obligations. This convention named criminal clause is the expression of the contractual liberty principle and presents a singular practical utility but also some inconveniences. Thus the criminal clause allows avoiding the difficulties of judicial evaluation of prejudices-interests. In this way, the creditor is not obliged to evidence the existence and the size of the prejudice, in order to obtain the payment of the amount of money or carrying out other patrimonial value established in the criminal clause being sufficient the proof of non inexecution lato sensu of the contractual obligation. The criminal clause has also a strong comminatory purpose, exercising a pressure on the debtor to make all possible to execute precisely the contractual obligation. Due to these reasons it is seen in doctrine by some of the authors as one of the main guarantees in our law. Also in the doctrine however, it is shown that the debtor can be constrained in some situations to accept establishing a very high amount in the criminal clause, sometimes with inequitable consequences, with damaging effect for the
debtor.