W sprawie funkcji realizowanych przez karę umowną
Functions of stipulated penalty

Summary/Abstract: The paper consists of three parts. In the first part the author makes a brief characteristics of the penalty fixed by the contract which is regulated in Articles 483 and 484 of the Civil Code. The second part reveals the substance of contractual liability based on general principles (Article 471 of the Civil Code) and presents similarities and differences between the liability and stipulated penalty. The fundamental part of considerations is included in the third part of the paper which is dedicated to functions fulfilled by the penalty. When it comes to the responsibility of Article 471 of the Civil Code, compensative function is leading. The considerable importance has also a preventive (preventive-educational)function. The author opposes the distinction of repressive function as an independent direction of impact of contractual liability. Turning then to discuss the functions performed by stipulated penalty the author considers how the penalty fulfills compensational tasks when there is no damage or it is significantly lower than penalty fixed by the contract, as well as the situation when the penalty covers only some part of the damage suffered by a creditor. On this basis, it is concluded that whether the penalty has compensatory meaning or not it is a matter of fact, so that it is difficult to assign the rank of compensative function to the penalty whereas the characteristic features of function are to be repeatability and typicality. The considered institution has undoubtedly the function of stimulation and prevention, because of simplification and speeding of judicial proceedings – and also so called proceedings function.

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