Legal şi Comercial în procedura insolvenţei comerciale, Revista de Drept Comercial nr Cărpenaru, St.D., (). Tratat de drept comercial roman, Editia a II a. Carpenaru D. Stanciu, Tratat de drept comercial roman, sul Juridic, ; Lupulescu Ana-Maria, Reorganizarea societatilor comerciale in contextul. Stanciu Carpenaru. Tratat de drept comercial roman conform noului Cod Civil roman, A. Treaty on the Romanian Commercial Law According to the New.
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The remuneration interest rate is the interest owed by the debtor who has the obligation of paying a sum of money on a certain term, tratat de drept comercial carpenaru for a period previous to the term on which the obligation must be fulfilled.
Tomescu Raluca Antoanetta Published carpensru Preventive role — determines the party which assumes the obligations derived from the contract to fulfill them on time to avoid paying extra sums of money.
The law covers to main categories of interest rates, the legal remuneration czrpenaru rates and penalty interest rates. Contractual liability, as stipulated by the legislator, gives the damaged party, the creditor of the obligation to be executed, the right to compensation or damages representing, in essence, the equivalent of the prejudice brought to them through the culpable non-execution of contractual obligations by the obligor.
The contract represents, in domercial, the conventional framework through which the counterparties assume obligations and gain rights in relation to each tratat de drept comercial carpenaru, and is the concretization of the volition agreement of the parties and is carpenarru valid only if the interested parties have freely and uncorruptedly expressed their agreement.
CONTRACTUAL LIABILITY | Евразийский Союз Ученых
Therefore, it is not mandatory that in order for the main obligation to be fulfilled a pecuniary expressed penalty is provided; it can also be a benefit of a different nature. Delay penalties represent sanctions for failing to fulfill on term payment obligations and are calculated for each day of delay starting with the next day after the due date and until the entire owed sum is paid.
It can be negotiated and inserted from the beginning as an accessory clause of the main tratat de drept comercial carpenaru or as a separate obligation established by an addendum to the main contract. PENAL CLAUSE The penal clause is the contractual provision through which the counterparts state that the debtor assumes the obligation of a certain action in case they fail to tratat de drept comercial carpenaru the main obligation they have agreed upon. Because these two categories are covered by law they are legal however they can be set by the counterparties, a situation in which they would be called conventional interest rates.
This clause is called a penal clause. The penal clause is tratat de drept comercial carpenaru contractual provision through which the counterparts state that the debtor assumes the obligation of a certain action in case they fail to execute the main obligation they have agreed upon. In reciprocal contracts in which each party is a credit as well as a debtor of the bond created through the contract, the delayed payment penalties should extend to all participants, otherwise they might be invoked by the interested party as an abusive clause.
It applies in the case of contracts with instant execution and the action in rescission can be introduced only by tratah party who has executed or declares itself tratat de drept comercial carpenaru to execute the assumed obligation.
Counterparties may include, along with other contractual clauses, all the penalties they consider necessary to be applied in case of culpable non-execution of assumed obligations and if the parties omit making these specifications, the legislator, by the power vested in him, has created a series of rules in tratat de drept comercial carpenaru interest of the prejudiced party to protect their interest and to restore contractual balance where it is needed.
The existence of an illegal act: Among penalty roles we can include the following: The penalties must be proven, not presumed.
The characteristics of the penal clause: Conventional evaluation has two methods: The form of the penal clause will be tratat de drept comercial carpenaru and in its absence only the legal interest d be owed.
For the contractual liability to exist, tratat de drept comercial carpenaru following conditions are mandatory: Therefore, I consider the contractual liability is not only a particularly interesting and vast domain, but also complex from a judicial point of view due to the effects it can produce, depending on their applicability in space and time.
The creditor of the non-executed obligation can request damages as well.
For the contractual liability to exist, the following conditions are mandatory:. The redressal carpejaru the damages caused by inadequate or lack of execution is done by creditor compensation, as opposed to dissolution or rescissionthe compensation is usually pecuniary.
Judicially — judicial evaluation; Tratat de drept comercial carpenaru law — legal evaluation; Agreement of the counterparts — conventional evaluation — in this case the interested parties include a contractual clause specially made to anticipate the extension of tratat de drept comercial carpenaru damages in case on non-execution of obligations.
Counterparties have the liberty of including within the closed convention any clauses they like, the only condition being that they do not act against public order or morals. The penalizing interest rate is the interest owed by the debtor of the financial obligation for failing to fulfill said tratat de drept comercial carpenaru on term and it is associated with delay penalty.
The dissolution of contracts by definition as in the case of rescission, is a penalty of drrpt non-execution of reciprocal contracts with successive execution making the future effects of the contract stop and leaving the previous successive benefits untouched.
For this reason, the penalties written on invoices cannot represent a penal clause because they are not negotiated directly by the counterparties and assumed by the debtor. By principle, in mutual agreements in which each side is a debtor and a creditor, the penal clause has to be covered for both sides identically, otherwise it can be classified as an abusive contractual clause. Penalizing role — because it is applied to a penalty in case comecial unfulfillment of contractual clauses which act comerciial laws between counterparties.
The counterparties can agree on the quantum of tratat de drept comercial carpenaru owed by the debtor after the creation tratat de drept comercial carpenaru the prejudice; The counterparties can trarat in a contract or a separate convention over the quantum of damages before the prejudice is done through the so called penal clause; There are two categories of damages: Penalty interest rate are covered by Civil Law and special laws regarding legal remuneration interest rates and penalizing for financial obligation, as well as to cover some fiscal-financial measures within the banking domain.
The penal clause, therefore, has a dual character: The sum of delay penalties can exceed the quantum of the sum over which they are calculated only if the contract states it. Voiculescu, Drept comercial, Editura U. In financial contracts, all penal clauses are mandatory. The termination of contracts is defined as a penalty of culpable non-execution of tratat de drept comercial carpenaru contracts and it consists in its retroactive liquidation and the restoration of the parties to their state previous to the signing of the contract.
The annulment of contracts can tratat de drept comercial carpenaru obtained through rescission or conventional dissolution the insertion of a commissary pact within the contractual clauses or judiciary through the intervention of a court of lawrrept well as by the method of contractual execution successive comerccial instant execution. Tratat de drept comercial carpenaru dissolution or rescission of the contract by right commissary pact or judicially; To keep the contract and apply delay tratat de drept comercial carpenaru comerfial other penalty clauses; Damages moratorium or compensatory, depending on the case whether the contract is rescinded or dissolved or not; The tratat de drept comercial carpenaru of contracts can be obtained through rescission or conventional dissolution the insertion of a commissary pact within the contractual clauses or judiciary through the rrept of a court of lawas well as by the method of contractual execution successive or instant execution.
Other than that, all the rescission rules apply judicial cause, admissibility conditions for dissolution actions, commissary pacts. The parties will be restored to their state previous to the signing of the contract by mutual restitution of all benefits provided through the contract agreement this also affects third parties, which can comdrcial uzucapion and possession in good faith to defend themselves ; The creditor of the non-executed obligation which tratat de drept comercial carpenaru to the rescission has the right to damages from the debtor; The dissolution of contracts by definition as in the case of rescission, tatat a penalty of culpable non-execution of reciprocal contracts with successive execution making the future effects of the contract stop and leaving the previous successive benefits untouched.
Termination by right or conventionally applies when the counterparties, in order to avoid the court of law, introduce rescission clauses in the contract in carpensru of non-executed obligations, these clauses being carpnaru as commissary pacts. In fact, the role of the penal clause is to estimate and cover the contingent prejudice in case of contractual non-fulfillment. The penalties available to the creditor are: The level of delay penalty must be included in the contractual clauses, for each day of delay and the delay penalty must not exclude the payment of interest rates.
The penal clause represents for the creditor the advantage of not having to prove the existence and quantum of the damage, in case the debtor does not fulfill his obligations according to contractual provisions. The contract is, throughout the world, the judicial mechanism essential to economic activity.
Delay penalties act as interest rates or delay increases.