O KONCEPCJI KARY UMOWNEJ DE LEGE FERENDA
ON CONTRACTUAL PENALTY CONCEPT DE LEGE FERENDA

Summary/Abstract: The article deals with selected issues of the regulation of liquidated damages and penalty clauses as proposed in the „Zielona Księga” (The Green Book) – an agenda presenting a vision of the future Polish civil code. The author of the article examines the questions that will have to be dealt with the future codification work. In the author’s view, the three major problems are: the general notion of liquidated damages, in particular referring to the functions of this institution , the courts’ power to reduce the amount stipulated as liquidated damages in commercial (professional) contracts, and the admissibility of penalty clauses referring to pecuniary obligations (in scope of the provision of Art. 483 § 1 of the Civil Code). The author generally approves the proposals concerning the notion and functions of liquidated damages. Although „Zielona Księga” strongly refers to the provisions of the Dutch Civil Code, as well as to the modern international model regulations (Unidroit Principles of International Commercial Contracts and Principles of European Contract Law), the experts’ legislative proposals respect the tradition of the Polish regulations (Art. 82–85 of the Obligations Code of 1933 and Art. 483–484 Civil Code). As far as the courts’ power to reduce a contractual penalty is concerned, the author agrees with the postulate to maintain the courts’ competence also in professional cases. It corresponds to the modern European regulations. The most controversial is the question of pecuniary obligations. „Zielona Księga” suggests that the admission of penalty clauses referring to pecuniary obligations would enable the parties to circumvent the maximum interest rate. The author does not agree with this restriction – in his opinion it should be possible for the parties to stipulate a contractual penalty referring to a pecuniary obligation. Since Art. 481 § 3 of the Civil Code has allowed the creditor to demand compensation for every loss resulting from the non-performance of a pecuniary obligation, there should not be any objections to fix the compensation by agreeing on liquidated damages. The courts’ power to reduce an excessive contractual penalty (Art. 484 § 2 of the Civil Code) seems here to be a sufficient remedy against inadequate sums stipulated for the case of non-payment.

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