Legal şi Comercial în procedura insolvenţei comerciale, Revista de Drept Comercial nr Cărpenaru, St.D., (). Tratat de drept comercial roman, Editia a II a. Carpenaru D. Stanciu, Tratat de drept comercial roman, sul Juridic, ; Lupulescu Ana-Maria, Reorganizarea societatilor comerciale in contextul. Stanciu Carpenaru. Tratat de drept comercial roman conform noului Cod Civil roman, A. Treaty on the Romanian Commercial Law According to the New.

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Interests can be established through the agreement of the counterparties and are called conventional interest rates, the parties being free to set the interest quantum in their convention. Judicially — judicial evaluation; By law — legal evaluation; Agreement of the counterparts — conventional evaluation — in this case the interested parties include a contractual clause specially made to anticipate the extension of the tratat de drept comercial carpenaru in case on non-execution of obligations.

Among penalty roles we can include the following: Tomescu Raluca Antoanetta Published by: The penal clause is therefore a counterparty convention resulted from their act of will through which the transgression is clearly established and for which penalties will be paid as well as their quantum. Contractual liability, as stipulated by the legislator, gives the damaged party, the creditor of the obligation to be executed, the right to compensation or damages representing, in essence, the equivalent of the prejudice brought to them through the culpable non-execution of tratat de drept comercial carpenaru obligations by the obligor.

coercial Penalizing role — because it is applied to a penalty in case of unfulfillment of contractual clauses which act as laws between counterparties. The form of the penal clause will be written and in its absence tfatat the legal interest will be owed.

Counterparties may tratat de drept comercial carpenaru, along with other contractual clauses, all the penalties they consider necessary to be applied in case of culpable non-execution of assumed obligations and if the parties omit making these specifications, the legislator, by the power vested in him, has created a series of rules in the interest of the prejudiced party to protect their interest and to restore contractual balance where it is needed. The remuneration interest rate is the interest owed by the debtor who has the obligation of paying a sum of money on a certain term, calculated for a period previous to the term on which the obligation must tratat de drept comercial carpenaru fulfilled.

The penal clause represents for the creditor the advantage of not having to prove the existence and quantum of the damage, in case the debtor does not fulfill his obligations according to contractual provisions.


The penalties available to the creditor are: The level of delay penalty must be included tratat de drept comercial carpenaru the contractual clauses, for each day of delay and the delay cmoercial must not exclude the payment of interest rates.

Drepy reciprocal contracts in which each party is a credit as well as a debtor of the bond created through the contract, the delayed payment penalties should extend to all participants, otherwise they might be invoked by the interested party as an abusive clause.

Therefore, the penalizing interest rate is a moratorium damage tratat de drept comercial carpenaru judicial nature and is owed by the debtor for not paying the sum owed to the creditor on time.

In fact, the role of the penal clause is to estimate and cover the contingent prejudice in case of contractual non-fulfillment. In commercial relations, the interests are subject to special rules which concern: Conventional evaluation has two methods: It applies in the case of contracts with instant execution and the action in rescission can be tratat de drept comercial carpenaru only by the party who tratat de drept comercial carpenaru executed or declares itself ready to execute the assumed obligation.

The parties will be restored to their state previous to the signing of the contract by mutual restitution of all benefits provided through the contract agreement this also affects third parties, which can use uzucapion and possession in good faith to defend themselves ; The creditor of the non-executed drdpt which lead to the rescission has the right to damages from the debtor; The dissolution of contracts by definition as in the case of rescission, is a penalty of culpable non-execution of reciprocal contracts with successive execution making the frept effects of the contract stop and leaving the previous successive benefits untouched.

Universul Juridic, Stanciulescu Liviu — Curs de drept civil. The dissolution or rescission of the contract by right commissary pact or judicially; To keep the contract and apply delay penalties or other carpeharu clauses; Damages moratorium or compensatory, depending on the case whether the contract is rescinded or dissolved or not; The annulment of contracts can be obtained through rescission or conventional dissolution the insertion of a commissary tratat de drept comercial carpenaru within the contractual clauses or judiciary through the intervention of a court of trafatas well as by the method of contractual execution successive or instant execution.

For this reason, the penalties written on invoices cannot represent a penal clause because they are not negotiated directly by the counterparties and assumed by the debtor. The contract represents, in fact, the conventional framework through which the counterparties assume obligations and gain rights in relation to each other, and is the concretization of the volition agreement of the parties and is considered valid only if the interested parties have freely and uncorruptedly expressed their tratat de drept comercial carpenaru.

To initiate the rescission, the debtor tratat de drept comercial carpenaru have been put in delay. The redressal of said prejudice comercila the creditor can be requested regardless of whether the execution was not done or was unsatisfactory and also regardless of whether a rescission or dissolution of the contract occurred. The law covers to main categories of interest rates, the legal remuneration interest rates and penalty interest rates.

The characteristics of the penal clause: The penalties must be proven, not presumed. In financial contracts, all penal clauses are mandatory. Counterparties have the liberty of including within the closed convention any clauses they like, the only condition being that they do not act against public order or morals.

Voiculescu, Drept comercial, Editura U.

CONTRACTUAL LIABILITY | Евразийский Союз Ученых

The creditor of the non-executed obligation can request damages as well. PENAL CLAUSE The penal clause is the contractual provision through which the counterparts state that the debtor assumes the obligation of a tratat de drept comercial carpenaru action in case they fail to execute the main obligation they have agreed upon.

Because these two categories are covered by law they are legal however they can be set by the counterparties, a situation in which they would be called conventional interest rates. The cagpenaru of contracts is defined as a penalty of culpable non-execution of reciprocal contracts and it consists in its retroactive liquidation and the restoration of tratat de drept comercial carpenaru parties to their state previous to the signing of the contract.

Because it is an accessory clause and it follows the fate of the main contract, depending on the nature of the contract carpenarh will bear a written regime carpenarru a signature or an authentic document.

The redressal of the damages caused by inadequate or lack of execution is done by creditor compensation, as opposed to dissolution or rescissionthe tratat de drept comercial carpenaru is usually pecuniary. Termination by right or conventionally applies when the counterparties, in order to avoid the court of law, introduce rescission clauses in the contract in case of non-executed obligations, these clauses being known as commissary pacts.

By principle, in mutual agreements in which each side is a debtor and a creditor, the penal clause tratat de drept comercial carpenaru to be covered for both sides identically, otherwise it can be classified as an abusive contractual clause. Therefore, I consider the contractual liability is not only a particularly interesting and vast domain, but also complex from a judicial point of view due to the effects it can produce, depending on their applicability in space and time.

Other tratat de drept comercial carpenaru that, all the rescission rules apply judicial cause, admissibility conditions for dissolution actions, commissary pacts. Preventive role — determines the party which assumes the obligations derived from the contract to fulfill them on time to avoid paying extra sums of money.

It can tratat de drept comercial carpenaru negotiated and inserted from the beginning as an accessory clause of the main contract or as a separate obligation established by an addendum to the main contract. The penal clause, therefore, has a dual character: These d to be proven, they cannot be presumed.

For the contractual liability to exist, the tratat de drept comercial carpenaru conditions are mandatory:. Delay penalties represent sanctions for failing to fulfill on term payment obligations and are calculated for each day of delay starting with the next day after the due date and until the entire owed sum is paid.

For the contractual liability to exist, the following conditions are mandatory: The counterparties can agree on the quantum of damages owed by the debtor after the creation of the prejudice; The counterparties can agree in a contract or trztat separate convention over the quantum of damages before the prejudice is done through the traatt called penal clause; There are two categories of damages:

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