Mutabilitatea clauzei penale în materia vânzării cu plata preţului în rate: de la Ana la Caiafa
The Mutability of the Penalty Clause in the Matter of Sale in Installments: Going Around in Circles

Summary/Abstract: The topic of the penalty clause in the age of blockchain technology that integrates smart contracts may seem anachronic. However… The provisions of the current Romanian Civil Code have given the court the prerogative to amend the penalty clause and also to exercise this prerogative on the clause by which the parties agreed that the amounts received by the creditor until the termination of the contract should not be subject, in whole or in part, to restitution. The present article analyzes the intervention of the court on the latter clause in the matter of the sale in installments regardless of whether the sale is without property reservation or with property keeping until full payment of the price. The issue generated by the application of the provisions regarding the reduction of the penalty clause in the matter of the sale in installments will be grouped on three levels of discussion. The first of the interrogations concerns the field of application of the two provisions that confer the court the prerogative to intervene upon the clause in question (art. 1.757 para. 2, respectively art. 1.538 para. 5 of the Civil code). Subsequently, we will try to find out which of the two cases that allow the amount withheld by the seller to be reduced (art. 1.541 para. 1 of the Civil Code) can be applied to the analyzed clause and what will be their order of application. The third part of the study concerns the particular aspects of the conditions that are required to be met in order for the court to diminish the manifestly excessive amount not subjected to restitution in the situation of the termination of the sale in installments. The contradictory practice of the High Court of Cassation and Justice and of the other courts and the lack of studies on this subject have urged us to try to shed more light, as we hope, on these issues. Whether we succeed or not, it remains to be seen!

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