Penalty Clause
LexInter | September 5, 2013 | 0 Comments

Penalty Clause

REVIEWED DECISION (S)     Court of Cassation, First Civil Chamber, October 29, 2002, D Lebeaux v Société Matélec,

AUTHOR (S):                         

REFERENCE:                     Consumption Competition Contracts, n ° 3, 03/01/2003, pp. 36-37

KEYWORDS:                   remote monitoring subscription contract, termination of the contract, penalty clause, abusive clause,

REVIEWED DECISION (S): Court of Cassation, 1 st civil chamber, July 12, 2001 , Husband Philippon against Breugnot; Cour de cassation, commercial chamber, July 10, 2001 , Société Spontex v Société Le Nigen Industries (formerly Société NLN)

AUTHOR (S):                                                 Leveneur, Laurent

REFERENCE:                                              La Semaine juridique, Company edition, n ° 11, March 14, 2002, pp. 482-483

 KEYWORDS:                                              Contracts and obligations, penal clause, principle of intangibility, judicial review, article 1152 of the Civil Code, manifestly derisory, increased penalty

The trial judges do not have to give special reasons for their decision when, simply applying the conventions, they refuse to moderate the agreed fixed penalty (1 st case).

By virtue of article 1152 of the Civil Code, the judge can only increase the agreed sentence if it is manifestly derisory (2 nd case).

 

DECISION (S) COMMENTARY (S):             Supreme Court, 1 st Civil Division July 3, 2001

AUTHOR (S): Mémetau, Gérard                                                

REFERENCE: Le Dalloz, n ° 1, January 3, 2002, pp. 23-27                                             

KEYWORDS: Contract and obligations. Transfer of a private clinic and transfer of the medical practice contract                                             

The less advantageous nature of the contracts taken out individually by two anesthesiologists with the transferee clinic not being personal to their SCP and the clause of the contract binding them to the transferring clinic, making the said contract enforceable against any transferee of the establishment, ultimately imposing only on the ceding clinic an obligation of prudence and diligence, which was not established during the difficult transfer negotiations, and which resulted in particular in obtaining agreements for ‘individual exercise for the benefit of the two partners, justify that the ceding clinic is not ordered to serve damages to the SCP for non-performance of the contract. The judge may not, of his own motion, classify a stipulation as a penalty clause or modify its amount without obtaining explanations from the parties.

APPEALED DECISION       Court of Cassation, October 14, 1997, Peuchet v Société Nicolas and Compagnie SNC and others

AUTHOR (S)            Willmann, Christophe

Reference            Recueil Dalloz Sirey  , n °        7  ,            02/18/1999  , pp.             103-106

Case law p. 101 to 114

KEYWORDS            Penal clause, right of withdrawal, distinction, scope, substantive judge, moderating power, exclusion, reduction or cancellation of compensation, article 1150 of the Civil Code

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