Effectiveness of the penalty payment and the penalty clause in the contractual contentious; Myth or reality? 377

Abstract

The debtor must, in principle, voluntarily fulfill his contractual obligation. But, if he refuses illegitimately to execute his obligation, there exists in French law ways and means to strike a blow at the debtor's wallet by inflicting so great penalties on him that he will expose himself to considerable prejudice. In this sense, the penalty payment and the penalty clause are pressure tactics that represent pecuniary threats to the assets of the debtor who is trying to escape his obligations. These measures may be pronounced by the justice, secondarily to a main conviction, or provided for by the parties, in order to force the debtor to default or in bad faith to voluntarily perform his obligation. The penalty payment and the penalty clause are incentives to pressure the debtor to compel him to execute his obligation.