The open “model” for a penalty clause during the harmonization period of european contract law

Abstract

The penalty clause of the civilian tradition is an ancient and often-used legal device. Nevertheless, defining its essence in the various legal systems that have adopted it still poses a challenge. This difficulty is most evident in the tension between the unitary model for the civilian penalty clause and the one that admits multiple types of penalty clauses. The distinction between liquidated damages and punitive damages clauses is at the heart of the debate regarding the common law and civil law models. This paper presents a brief overview of the traditional “models” for the civilian penalty clause, as well as an account of the upcoming multiple-type model that is slowly taking its place. In addition, it examines the options put forth by the various projects for the 1 harmonization of European contract law.