Judicial assessment vs. conventional assessment of damages

The High Court of Cassation and Justice ruled that the provisions held in Art. 1082 of the Civil Code (Art. 1530 of the New Civil Code) establishes the right of the creditor to gain damages in case of non-performance of an obligation in nature. In such a case, the non-performance has to be attributable to the debtor. This guilt leads to the equivalent replacement of the object of the obligation which was initially undertaken under the contract. In our case, however, by means of the penalty clause included in the contract, the parties have constituted an anticipated calculation of the default interest in the event of a possible late performance of the obligation from the initial convention. In such a situation, the creditor does not have to prove the non-performance of the obligations nor the caused prejudice or the delay in the performance of the obligations. This results from the stipulation of the penalty clause upon which the parties have agreed to hold that any breach of the obligations would entail a prejudice whose extent is to be settled down in advance. Under these circumstances, the critics of the defendant related to the external cause of liability relief and the guilt of the plaintiff in the performance of her own obligations can be subjected to analysis only under the judicial assessment of damages, and not under the conventional assessment as is the one in the dispute.

(Decision no. 2061 of the 5th of June 2014 given at appeal by the 2nd Civil Division of the High Court of Cassation and Justice, covering claims)

:: The Source: JURIDICE.ro

Andreea Lucaci

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