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Dr hab. Przemysław Drapała
ORCID: 0000-0001-8093-2083
Associate Professor, Head of Civil Law Department at Leon Koźmiński Academy in Warsaw.
DOI: 10.33226/0137-5490.2021.9.8
JEL: K22

The commentary concerns an interesting issue whether, based on the principle of freedom of contract (Article 3531 of the Civil Code), the provisions on „quasi-contractual penalties” consisting in the obligation to pay a specified amount to the creditor in the event of withdrawal from the contract due to the debtor's delay in performing of monetary obligation, should be considered valid. This is an important problem for practice, as this kind of „penalties” under various names are often used. The view of the Supreme Court that denies the admissibility (validity) of such provisions deserves approval and the commentary presents a number of further legal arguments strengthening this position.

Keywords: contractual penalty; quasi-contractual penalties; termination of contract
DOI: 10.33226/0137-5490.2020.9.7
JEL: K22

The commentary concerns a significant judgment of the Supreme Court, which specifies the criteria for assessing the validity of the contractual penalties, the amount of which has been expressed using measures of value other than the specified sum. The views of the Supreme Court both as regards the definition of the aforementioned criteria and the inadmissibility of reserving contractual penalties in a non-pecuniary form in the Polish legal system deserve full approval. The commentary presents additional argumentation resulting from the functional, systemic and comparative interpretation of law supporting the views expressed by the Supreme Court as well as the impact of the commented judgment on contractual practice.

Keywords: contractual penalty; specified sum of contractual penalty; penalty in pecuniary form

Associate Professor, Head of Civil Law Department at Leon Koźmiński Academy in Warsaw.