LexInter | June 15, 2002 | 0 Comments


Section VI: Obligations with penal clauses
Article 1226
The penalty clause is that by which a person, to ensure the execution of an agreement, commits to something in the event of non-performance.
Article 1227
The nullity of the principal obligation entails that of the penalty clause.
The nullity of this does not entail that of the principal obligation.
Article 1228
The obligee, instead of asking for the stipulated penalty against the obligor who is in default, can continue the performance of the principal obligation.
Article 1229
The penalty clause is the compensation for damages that the creditor suffers from the non-performance of the principal obligation.
He cannot demand the principal and the penalty at the same time, unless it has been stipulated for simple delay.

Article 1230

Whether the original obligation contains, or whether it does not contain a term in which it must be fulfilled, the penalty is incurred only when the one who is obliged either to deliver, or to take, or to do, is in default.
Article 1231
(Law n ° 75-597 of July 9, 1975 Official Journal of July 9, 1975) (Law n ° 85-1097 of October 11, 1985 art. 2 Official Journal of October 15, 1985)

When the commitment has been partially executed, the agreed penalty may, even ex officio, be reduced by the judge in proportion to the interest that the partial performance has procured for the creditor, without prejudice to the application of the article 1152 . Any stipulation to the contrary will be deemed unwritten.

Article 1232
When the original obligation contracted with a penal clause is of an indivisible thing, the penalty is incurred by the contravention of only one of the heirs of the debtor, and it can be requested, either in full against the one who made the contravention, or against each of the coheirs for their share and portion, and hypothecarily for the whole, except their recourse against the one who caused the penalty.
Article 1233
When the original obligation contracted under a penalty is divisible, the penalty is incurred only by that of the heirs of the debtor who contravenes this obligation, and only for the part of which he was bound in the principal obligation, without his there is action against those who executed it.
This rule receives exception when the penalty clause having been added with the intention that the payment could not be made partially, a co-heir has prevented the fulfillment of the obligation for the whole. In this case, the whole penalty may be demanded against him, and against the other co-heirs for their portion only, except their recourse.

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