Tort Liability. Damages And Penality Clause

Tort liability has always been a constant manifestation of social life in the community, having as its main effect the birth of a new legal obligational relationship established between the author of the deed which caused the prejudice and the injured person. Apodictically, legal liability will result in an attempt to repair the damage created mainly in kind, and when it is no longer possible to repair the damage, it will be in the form of damages established legally or judicially, or in the form of a penality claim in the case of conventional damage. From this perspective, we considered it appropriate to emphasize the effects on the penality clause of the hypothesis of intervention on the contract with another sanction of law, applicable in the case of culpable non-fulfilment of the contractual obligations, namely cessation or termination. The current Civil Code determines that, upon termination of the contract, the parties will be released from any obligation. Therefore, by termination of the contract, as a result of the declaration of termination, respectively of the cessation, the obligations stipulated in the penality clause are abolished, because the source itself was abolished, as we can no longer speak of a contractual obligational liability. Of course, in this hypothesis, the creditor will have at hand to claim non-contractual damages, where the person who considers himself prejudiced has to prove the damage and its source.