Consideraţii asupra clauzei penale abuzive
Considerations on the unfair penalty clause

Summary/Abstract: The possibility for the court to reduce the penalty under Article 1541 of the Civil Code does not remove the court's duty to examine the potential unfairness of a penalty clause contained in a contract between a trader and a consumer in the light of the special legislation enacted in the field of consumer protection. In order to assess the possible significant imbalance created by a penalty clause contained in a contract, it is necessary to compare the effects produced by that penalty clause on the consumer with the effects which would have been produced by the national default rule from which the penalty clause inserted in the contract derogates. In examining the trader's conduct contrary to good faith in his dealings with the consumer, it must be ascertained to what extent the trader, acting fairly and equitably towards the consumer, could reasonably expect the consumer to accept the term in question following an individual negotiation. The effect of a declaration that the penalty payment clause is unfair is not only to remove it from the contract but also to deprive the trader of the right to invoke in his favour the legal treatment provided for by the domestic default rule from which the parties have derogated by that clause. In the absence of legal criteria and taking into account the level of statutory interest, it is for the national courts to determine from what level of the penalty for late payment it can be said that the trader's conduct was abusive, contrary to the requirement of good faith, such as to determine the unfairness of the term thus established and imposed on the consumer by the proposed contract of adhesion.

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