Principle of availability in the matter of the reducibility of the penalty clause

Abstract

Being receptive to doctrinaire advocacies prior to October 1^st 2011 and taking into consideration the social and economical realities of the last decades, the Romanian legislator, in art. 1541 of the civil Code gives the court the power to reduce the evidently excessive penalty clause in relation to the prejudice that could have been foreseen by the parties at the date on which the contract was signed. Amid the silence of the legislator and taking into account the disposition right of the parties over the object of the civil trial, we propose to find whether the court can diminish the obviously excessive penalty clause only when invested with such request or whether this prerogative can be exercised ex officio.

Keywords: reducing excessive penalty clause, principle of availability