LIPSA CARACTERULUI CERT AL CREANȚEI CUPRINSE ÎNTR-O CLAUZĂ PENALĂ DINTR-UN ACT AUTENTIFICAT DE NOTARUL PUBLIC
The Lack of Certain Character of the Debt Included in a Criminal Clause in an Act Authorized by the Public Notary

Author(s): Vlad-Victor Ochea
Subject(s): Civil Law
Published by: Universul Juridic
Keywords: right of claim; certainty of a claim; document authenticated by a notary public; enforceable title; penalty clause and earnest clause;
Summary/Abstract: This study aims to demonstrate that the claim to an amount of money agreed upon via a penalty clause inserted in a document authenticated by a notary public lacks its certainty and that document is not enforceable. The analysis starts from the provisions of art. 638 par. (1) pt. 2, art. 639 par. (1), art. 632 par. (1) and art. 663 of the Romanian Civil Procedure Code and from those of art. 101 par. (1) of the Law on notary public and notary public activity no. 36/1995 and from the jurisprudence, which revealed this legal thesis. The certainty of the claim does not exist, because it was not previously settled via a ruling of the court of justice that the conditions of the contractual civil liability were fulfilled – the unjustified or wrongful non-performance of an obligation, notice of default and the damage. Only the fulfilment of these conditions gives way to the indemnification for damages, including by use of the penalty clause. The same applies to the earnest clause, when it serves as a penalty.

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