(Ne)executorialitatea clauzei penale compensatorii
(Un)enforceability of the Compensatory Penalty Clause

Summary/Abstract: The pressure exerted by a creditor invoking a penalty clause included in a contract recognized by law as enforceable is a familiar scenario for both bailiffs and judges in enforcement courts. Bailiffs may encounter it even more frequently, especially when they manage to persuade creditors – based on judicial practice known to enforcement bodies – that the chances of obtaining approval for forced execution are rather slim. Even more unpleasant is the risk that, should such a victory be achieved, it may prove more costly, as it does not exclude a subsequent ruling admitting the debtor’s challenge to the enforcement, particularly if the debtor is skilled at raising doubts about the certainty of the claim. The enforcement court’s inability to administer evidence regarding the debtor’s fault in relation to the compensatory penalty clause stipulated for a non monetary principal obligation seems to be the most common argument found in decisions rejecting requests for approval of forced execution. However, the reluctance of enforcement courts to recognize the enforceability of penalty clauses is not universally applicable. When, instead of a penalty clause, we speak of penalties (penalităţi), cracks begin to appear in the „dam” formed during the approval phase of forced execution – much to the delight of creditors who seek them directly through enforcement. So, what about the enforceability of a mortgage contract concluded to secure an obligation that does not involve a sum of money? As we will show in the final part of our analysis, such a question cannot be separated from the debate surrounding the enforceability of compensatory penalty clauses accessory to non-monetary principal obligations.

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