Dilema executării silite a arvunei şi a clauzei penale
The dilemma of forced execution of the arvuna and the penal clause

Summary/Abstract: The enforcement of claims deriving from non-judicial enforceable titles has not received a uniform ruling in the judicial practice. Given the variety of the parties’ contractual terms, it is common that contextual judicial decisions are to be pronounced by the enforcement courts regarding applications for forced execution approval or regarding challenges to enforcement. Nonetheless, through our approach, we have extracted several rules implicitly or explicitly considered by the enforcement courts. We have thus noted that, in procedural terms, the certainty of the claim has a different meaning from that in substantive law because it is not enough for the claim’s existence to be certain, but it is also necessary for its certainty to result from the enforceable title itself [art. 663 para. (2) Civil Procedure Code]. On a substantive level, one should notice that this statutory rule is fulfilled when the creditor claims the performance of the obligation in kind, and not when the creditor claims for damages or when the creditor seeks to unilaterally or conventionally terminate the contract with the restitution of the price. This conclusion is not categorical as, like any rule, there are notable exceptions, which we have identified in this brief commentary. As we shall see, although the enforcement courts’ refusal to engage in a discussion on the merits of the claims may be seen as a deterrent to the contractual and economic freedom of the parties, the solution is dictated by the procedural discipline which the Romanian legislator undeniably sought by enacting art. 663 para. (2) Civil Procedure Code.

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