THE LEGAL REGIME OF THE PENALTY CLAUSE AS A WAY OF OBTAINING PERFORMANCE IN KIND OF A CIVIL OBLIGATION

Abstract

Currently in the New Civil Code, which has incorporated provisions from the old Civil Code and the old Commercial Code, Article 1536 states that in the case of obligations other than those for the payment of a sum of money, late performance always entitles the debtor to damages equal to statutory interest, calculated from the date on which the debtor is in default on the money equivalent of the obligation, unless a penalty clause has been stipulated or the creditor can prove greater damage caused by the delay in performance. Therefore, according to common law, for late performance of the contract or for non-performance of contractual obligations, if penalties for late performance have been stipulated in the contract, it means that liability for that breach has been definitively settled and damages can no longer be claimed, since it is considered that the penalty clause stipulated in the contract has determined in advance the damages that the debtor will pay.