Miarkowanie kary umownej de lege ferenda

Abstrakt

In this study, the following de lege ferenda views were formulated in relations to the moderating of contractual penalties: a) the civil court should have the power to moderate the contractual penalty ex officio (with the option of moderating at the debtor?s request); b) the first premise for moderating excessive contractual penalties should be its ?excessiveness? or ?excessive amount? (instead of ?gross excessiveness?); c) the second condition should be ?partial? performance of the obligation (instead of ?significant part of performance?); d) the criterion for moderating should be the damage suffered by the creditor and other circumstances (not the creditor?s interest); e) the court should be authorized to increase the significantly underestimated contractual penalty; f) provision should be made to allow the use of the appropriate application of regulations of moderating for atypical contractual penalties. In addition, in the study the author discussed the following theses, but did not consider it necessary to prejudge these issues at the level of the act: a) excessive contractual penalties of an abusive nature are invalid ex lege; b) irrespective of the moderating, the contractual penalty may be reduced due to the creditor?s contribution to the damage; c) moderation is the usual instrument to protect the debtor; d) it is permissible to moderate the contractual penalty to ?zero?; e) the judgement moderating the contractual penalty is retroactive, therefore moderating is possible after set-off; f) in some cases, moderating is also permissible after the payment of a contractual penalty.