9. Clauza penală şi dovada existenţei prejudiciului. Prezumţiile legale absolute şi relative
9. The penal clause and proof of damage. Absolute and rebuttable legal presumptions

Summary/Abstract: The penal clause provided for by art. 1.538 of the Civil Code serves to pre assess the damages sustained by the creditor in the event the debtor fails to perform their contractual obligations. In such instances, pursuant to legal provisions, the creditor may seek the enforcement of the penal clause without being required to prove any actual loss. This exemption from the burden of proof functions as a legal presumption that derogates from the general rules of civil liability. Under art. 1.537 of the Civil Code, evidence of non performance does not, as a rule, relieve the creditor of the duty to prove the damage, unless otherwise provided by law or by the agreement of the parties. Although the status of art. 1.538 para. (4) of the Civil Code as a legal presumption is indisputable, its classification remains subject to debate – specifically, whether it constitutes an absolute (juris et de jure) or a rebuttable (juris tantum) legal presumption.

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