The provision of a penalty clause as a means of guaranteeing and executing by equivalent the primary obligation is a common operation under the civil and commercial contracts. This clause is most often provided in the contract entered into between the parties or under an ancillary agreement to the original contract. In such circumstances, the contract termination on account of the culpable failure of the debtor to perform its obligation raises the issue of the survival of the penalty clause in consequence of dissolution of the contract which served as a ground thereto. The solution to this issue will be analysed hereunder in relation to the arguments advanced in the doctrine and the solution set forth under the new Civil Code.
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