3. Aspecte (încă) disputate în practica penalităţilor cominatorii. Examen al dezlegărilor instanţei supreme
3. (Still) Disputed Aspects in the Practice of Comminatory Penalties. Examination of the Decisions of the Supreme Court

Summary/Abstract: The performance in kind of civil obligations, enshrined as a principle in substantive law, also has particular relevance in civil procedure. The importance that the principle of the performance in kind has from the perspective of substantive law is also reflected at the procedural level, through forced execution, aiming, as a priority, at the exact fulfilment of the performance that forms the object of the obligation. The desideratum of the performance in kind of obligations requires the existence of efficient legal mechanisms, intended not only to ensure the fulfilment of the obligation exactly as it was assumed, but also to prevent a possible refusal of the debtor to perform or to defeat any persistence in non performance. In all forms of forced execution, a special legal physiognomy is presented by the indirect means of execution, whose emergence and evolution were determined by the specific performance of certain categories of obligations. Comminatory damages, civil fines per day of delay and, more recently, the penalties regulated by the Code of Civil Procedure, are integrated into the category of indirect means of execution, with a dissuasive and coercive role, the only ones likely to defeat the debtor’s resistance to performance and to ensure the creditor’s satisfaction with an exact performance, in kind. Subsumed to the idea of accumulating sums of money over a certain period of time, the theory and practice devoted to this type of indirect constraint generated major divergences and revealed some deficiencies at a regulatory level, making it necessary for the supreme court to intervene through mechanisms meant to unify case law. This study presents the evolution of legislative, jurisprudential and doctrinal solutions regarding the indirect mechanism of coercion aiming to ensure the performance of obligations to do or not to do of a personal nature, with special regard to the supreme court’s decisions given through the instruments of unification of judicial practice. Although it has a particular and apparently minor application in the complex mechanism of forced execution, the system of penalties per day of delay and its predecessors fines and comminatory damages have been the subject of numerous decisions in the interest of the law or of preliminary rulings on questions of law, an aspect likely to reveal the imperfection of the regulation and the need to complete a consistent doctrinal concept.

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