SECURITY AND INSUFFICIENT OBLIGATION BY CONTRACTUAL PENALTY

Abstract

The author describes the structure of the contractual penalty as the most common personal means of securing claims in business practice. By examining its capabilities as a means of ensuring the fulfillment of a commitment or timely fulfillment, it also points to its elements that are not eligible to fully compensate the creditor. The aim of the paper is to enable the application of the rules of the institute and the wrong contractual punishment by revealing the true meaning of certain elements of the contractual penalty structure. In connection with the above, the linguistic method and procedure were used within the sociological method, the analysis of documents on the source of origin, the principle of accessibility and the purpose of contractual penalties in contracts. On this basis, the position is taken that the positive right also includes a wrong contractual penalty and allows the application of the general rules on the contractual penalty on it. Accordingly, the institute of a contractual penalty as a subsidiary obligation may be contracted as a means of securing a principal or auxiliary obligation under a contract. There is no impediment to the general rules of the institute of application and as a means of ensuring the fulfillment of non-enforceable claims granting him in that case the legal treatment of the main obligation.