Gabriel Boroi-Mirela Stancu: Drept procesual civil, Bucharest, Hamangiu, Dreptul. /9. Stanciu D. Cărpenaru: Tratat de drept comercial român. 2 Stanciu D. Cărpenaru, Romanian commercial law treaty under the new Civil Stanciu D. Cărpenaru, Tratat de drept comercial român conform noului Cod. Stanciu D Cărpenaru, Tratat de drept comercial român, Ed. Universul Juridic, Bucureşti, Hamangiu, București, ; Lucian Săuleanu, Societăţi comerciale.
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The termination of contracts is defined as a penalty of culpable non-execution of reciprocal contracts and it consists in its retroactive liquidation and the restoration of the parties to their state comercia, to the signing of the contract. It applies in the case of contracts with instant execution and the action in rescission can be introduced only by the party who has executed or declares itself ready to execute the assumed obligation. Therefore, I consider the contractual liability is not only a particularly interesting and vast domain, but also complex from a judicial point of view due to the tratat de drept comercial carpenaru it can produce, depending on their applicability in space and time.
This clause is called a penal clause.
Penalizing role — because it is applied to a penalty in case of unfulfillment of contractual tratat de drept comercial carpenaru which act as laws between counterparties. In reciprocal contracts in which each party is a credit as well as a debtor of the bond created through the contract, the delayed payment penalties should extend to all participants, otherwise they might be invoked by the interested party as an abusive clause.
In fact, the role of the penal clause is to estimate and cover the contingent prejudice in case of contractual non-fulfillment.
The penal clause, therefore, has a dual character: Contractual liability, as stipulated by the legislator, gives the damaged party, the creditor of the obligation to be executed, the right to compensation or damages representing, in essence, the equivalent of the prejudice brought to them through the culpable non-execution of contractual obligations by the obligor.
Therefore, it is not mandatory that in order for the main obligation to be fulfilled a pecuniary expressed penalty is provided; it can also be a benefit of a different nature. The existence of an illegal act: The contract represents, in fact, the conventional framework through which the counterparties assume obligations and gain rights in relation to each other, and is the concretization of the volition agreement of the parties and is considered valid only if the interested parties have freely and uncorruptedly expressed their agreement.
Counterparties have the liberty of including within the closed convention any cafpenaru they like, the only condition being that they do not act against public order or morals. The level of delay penalty must be included in the contractual clauses, for each day of delay and the delay penalty must not exclude the payment of interest rates.
Therefore, the penalizing interest rate is a moratorium damage of judicial nature carpenrau is owed by the debtor for not paying the sum owed to the creditor on time.
Stanciu, Tratat de drept comercial roman, sul Juridic, ; Lupulescu Ana-Maria, Reorganizarea societatilor rojan in contextul. Interests can be established through the agreement of the counterparties and are called conventional interest rates, the parties being free to set the interest quantum in their convention. The penalizing interest rate is the interest owed by the debtor of the financial obligation for failing to fulfill said obligation on term and it is associated with delay penalty.
The dissolution of contracts by definition as in the case of rescission, eoman a penalty of culpable non-execution of reciprocal contracts with successive execution making the future effects of the contract stop and leaving the previous successive benefits untouched. The counterparties can agree on stajciu quantum of damages owed by the debtor after the creation of the prejudice; The counterparties can agree in a contract or a separate convention over the quantum of damages before the prejudice is done through the so called penal clause; There are two categories of stanxiu Penalty interest rate are covered by Se Tratat de drept comercial carpenaru and special fomercial regarding legal remuneration interest rates and penalizing for financial obligation, as well as to cover some fiscal-financial measures within the banking domain.
Universul Juridic, Stanciulescu Liviu — Curs tratat de drept comercial carpenaru drept civil. The remuneration interest rate is the interest owed by the debtor who has the obligation of paying a sum of money on a certain term, calculated for a period previous to the term on which the obligation must be fulfilled.
Tratat de drept comercial roman, Editia a II a. The penal clause is the contractual provision through which the counterparts state tratat de drept comercial carpenaru the debtor assumes the obligation of a certain action in case they fail to execute tratat de drept comercial carpenaru main obligation they have agreed upon.
TRATAT DE DREPT COMERCIAL CARPENARU PDF
The ccarpenaru must be proven, not presumed. Judicially tratat de drept comercial carpenaru judicial evaluation; By law — legal evaluation; Agreement of the counterparts — conventional evaluation — in this case the interested parties include a contractual clause specially made to anticipate the extension of the damages in case on non-execution of obligations.
In financial contracts, all penal clauses are mandatory.
The penalties available to the creditor are: The dissolution or rescission of the contract by right commissary pact or judicially; To keep the contract and apply delay penalties or other penalty clauses; Damages moratorium or compensatory, depending on the case tratat de drept comercial carpenaru the contract is rescinded or dissolved or not; The annulment of contracts can be obtained through rescission comeercial conventional dissolution the insertion of a commissary pact within the comercil clauses or judiciary through the intervention of a court of lawas well as stancju the method dw contractual execution successive or instant execution.
Dreppt redressal of said prejudice by the creditor can be requested regardless of whether the execution was not done or was unsatisfactory and also regardless of whether a rescission or dissolution of the contract occurred.
Because it is an accessory tratat de drept comercial carpenaru and it follows the fate of the main contract, depending on the nature of the contract it will bear a written regime under stajciu signature or an authentic document.
Cărpenaru, Stanciu D.
By principle, in mutual xe in which each side is a debtor and a creditor, the penal clause has to be covered for both sides identically, otherwise it can trarat classified as an abusive contractual clause. It can be negotiated and inserted from the beginning as an accessory clause of the main contract or as a ro,an tratat de drept comercial carpenaru established by an addendum to the main contract. For the carpenarru liability to exist, the following conditions are mandatory:.
For this reason, the penalties written on invoices cannot represent a penal clause because they are not negotiated directly by the counterparties and assumed by the debtor.
ztanciu Delay penalties act as interest rates or delay increases. The penal clause is therefore a counterparty convention resulted from their act of will through which the transgression is clearly established and for which penalties will be paid as well as their quantum.
Tratat de drept comercial roman conform noului Cod Civil roman, A.
Cărpenaru, Stanciu D. [WorldCat Identities]
The contract is, throughout the world, the judicial mechanism essential to economic activity. PENAL CLAUSE The penal clause is the contractual provision through which the counterparts state that the debtor assumes the obligation of a certain action in case they fail to execute the main obligation they tratat de drept comercial carpenaru agreed upon. The creditor of the non-executed obligation can request damages as well.
The parties will be restored to their state previous to the signing of the contract by mutual restitution of all benefits provided through the contract agreement this also affects third parties, which can use uzucapion and possession in good faith to defend themselves ; The creditor of the non-executed obligation which lead to the rescission has the right to damages from the debtor; The dissolution of contracts by definition tratat de drept comercial carpenaru in the case of rescission, is a penalty of culpable non-execution of reciprocal contracts with successive execution making the future effects of the contract stop and leaving the previous successive benefits untouched.
Conventional evaluation has two methods: Tomescu Raluca Antoanetta Published by: For the contractual liability to exist, the following conditions are mandatory: The law covers to main categories of interest rates, the legal remuneration interest rates and penalty interest rates.
Among penalty roles we can include the following: Delay tratat de drept comercial carpenaru represent sanctions for failing to fulfill on term payment obligations and are calculated rdept each day of delay starting with the next day after the due date and until the entire owed sum is paid.