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German term or phrase: Vorbehalt der Vertragsstrafe. Can someone tell me if my translation is correct? Reservation of the right to appeal the.
Table of contents. But the parties did not exclude the explicit notification of the results of that examination. The Arbitral Tribunal was also presented with letters of notification from the [buyer] to the [seller] concerning the results from the quality examination made by the independent controlling organization in port Varna. In the course of the arbitral dispute, the expert was not able to identify any correspondence between these letters and the different consignments of goods for which the independent controlling organization issued the quality certificates.
The [buyer] did not succeed in convincing the Tribunal that he had given the quality certificates to the [seller] on time. It is not sufficient evidence that these certificates were handed over to the [buyer]'s bank. According to Article 7 2 of the CISG, questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the law applicable by virtue of the rules of private international law, which in this case are the prescriptions of the Bulgarian Obligations and Contract Law BOSL , precisely Article 83, which regulates the amount of the damages in cases of joint contributors to the harm.
Consequently, if the default is caused by circumstances for which the creditor is responsible, the court must reduce the amount of the damages or relieve the debtor from responsibility. Article 79 1 CISG A force majeure situation is caused by circumstances that occur after the conclusion of the contract as a result of unforeseen and unpreventable events with extraordinary character.
The debtor who is not able to fulfill his obligation because of force majeure is obliged to notify immediately the other party in accordance with clause 8 of the contract. The Governmental prohibition for coal export and the Decrees of the Ukraine Government for export restrictions of coal on which the [buyer] relies in his letter of 22 February do not correspond either with the requirements of the CISG for the existence of force majeure nor with the clauses of the contract.
They have occurred before the conclusion of the contract. Vertrag treaty contract agreement deal lease. Strafen penalties fines sanctions sentences punishment. Disclosure of all provisions, contingent liabilities and contingent assets related to the construction contracts, arising, for example, from warranties, claims, penalties or possible losses.
Suggest an example. In the event of an infringement of the copy right, a contractual penalty is to be paid, which shall be set with equitable discretion by BS-MapShop and shall be reviewed by the appropriate court in case of a legal dispute. The Dutch Supreme Court has unfortunately made it clear that the aforementioned reticence with respect to lump sum penalties is, in part, lost. Finally, it is unclear to what level a contractual penalty should be supplemented or reduced.
French law also presupposes that both functions of the penalty clauses are valid, although Mazeaud has vehemently criticised this position. He argues that the penalty clause should always fill an incentive function and thus a pure assessment of damages cannot really be regarded as a penalty clause. However, this cannot be regarded as the prevailing opinion. Penalty clauses are fully enforceable as laid down in Article 1 French Civil Code. The moment of testing is also ex post, all circumstances of the case may be taken into account and the parties are not allowed to exclude the possibility to reduce and supplement the contractual penalty.
Reticence in the use of the reduction and supplementary competencies is strictly observed.
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When the agreed monetary sum is 'grossly excessive' with regard to all circumstances of the case, a penalty must, by virtue of Article 2 PECL, be able to be reduced. The PECL rule lacks a possibility to supplement low contractual penalties. This method attempts to restrict the unreasonable consequences of a penalty clause by endorsing only one of the two functions of such a penalty clause, namely the assessment of damages function. This case clarifies that a distinction needs to be made between incentive penalty clauses, which are not enforceable at law, and those clauses which assess the amount of damages, so-called liquidated damages clauses, which are acceptable.
It is not altogether clear why English law is so averse to incentive penalty clauses.
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A private punishment does not belong in the realm of damages, since this field of law only aims at compensating the claimant's damage, whilst a penalty clause forces the respondent to pay a sum higher than the real level of damage caused. As a result, it is concluded that it would not be appropriate to deal with such private punishments within the recognised boundaries of the law of damages owing to the compensatory function of this field of law and the necessary connection punishment has to the State.
In the Dunlop case, Lord Dunedin addressed how penalty clauses and liquidated damages clauses must be distinguished. In fashioning a methodological rule, he stated that a clause is to be regarded as an acceptable liquidated damages clause when it concurs with a 'genuine covenanted pre-estimate of damage' at the moment the contract is concluded ex ante , while the prohibitive effect remains the essential characteristic of a penalty clause.
In situations where the damage is difficult to assess in advance, a number of supplementary criteria are provided, from which it appears that a judge is granted a greater freedom of assessment. Penalty clauses which are determined to be set at an unreasonably low level, are valid in their entirety.
English law does not recognise a supplementary competency and a similar penalty clause cannot be considered as a exoneration clause with limited acceptability. Strong criticism has been levied in English literature towards the current state of the law with respect to penalty clauses. It has for example been stated that the division between penalty clauses and liquidated damages clauses is altogether unrealistic: the judge needs to turn back time and place him or herself at the moment the contract was concluded and attempt to ascertain what the intention of the parties was at that moment.
This is not only a difficult undertaking but also leads to legal uncertainty. For these reasons, some commentators have argued that this standard has to be replaced by a reasonability test.
Vertragsstrafe - English translation in Spanish - Langenscheidt dictionary German-Spanish
The Scottish Law Commission has concurred with such a plea and has argued for the introduction of an ex post reduction competency. In spite of the aforementioned criticism, Belgian law has also shared the majority of these hallmarks since the s i. This standard was also confirmed in a statutory amendment. Thus parties may only agree to an amount of money which, at the moment when the contract is concluded ex ante , conforms with the pre-estimate of the likely damage which can be attributed to the non-performance of the contract see Article , Belgian Civil Code.
A higher agreed amount is not enforceable at law, but is not completely invalid as in England, since the amount must be reduced; by virtue of Article 1 , Belgian Civil Code. The judge is provided with a compulsory judicial competency of his or her own motion to 'reduce a punishment which involves the payment of a specified monetary sum should this sum be manifestly above the amount that the parties could determine in order to compensate the non-performance of the contract'. Due to the fact that an incentive penalty clause is invalid according to Belgian law as well as in the accompanying explanatory notes and a reduction of an invalid amount is not legally possible, it is argued that the reduction competency can only be considered as a form of partial nullity.
The difference between this system and the sanction imposed in England is thus not desirable. English and Belgian opinions are also comparable in terms of unreasonably low penalty clauses: Belgian law does not recognise a supplementary competency and will also not regard these clauses as an exoneration. Therefore, a similar penalty clause is valid in its entirety. The new Belgian law contains of a number of uncertainties, for example concerning the degree of the reduction and the contents of the reduction criterion.
This has also instigated considerable criticism in Belgian legal literature. Even putting the profound criticism on these technical points to one side, a considerable portion of the commentators regret the choice of the Belgian legislator to refuse to accept the incentive function of the penalty clause. Both functions of the clause are recognised as in The Netherlands and France and an ex post moderation competency exists, but the incentive penalty clause is dealt with differently than the damage assessment clause.
It is clear since the German case from the Bundesgerichtshof in BGH, 6th November , BGHZ 49, 84 that an incentive penalty clause in German a Vertragsstrafe is a different legal construction than a pure damage assessment penalty clause in German a Schadenspauschale. These rules are not applicable to the Schadenspauschale. The reason for the distinction between these two variants is unclear, but it seems in no uncertain terms to rest upon an unclear statutory formulation.
At the time of enactment, criticism was levied in German literature at the division of both functions of the penalty clause, especially because the parliamentary history provided no explanation for the functional splitting and, in practice, these functions cannot be distinguished. How should these models be distinguished from each other? In order to assess the answer to this question, one must first consider the aim of the clause. The Vertragsstrafe should at any case serve as an incentive in order to force the opposing party to fulfill his or her contractual obligations.
The Schadenspauschale should however act as a way in which to fix the level of damage. This test is concluded ex post and all facts and circumstances which occur up until the moment of the judicial decision may be taken into consideration when determining the reduction. Reticence is taken as the starting position. When the obligor has already paid the Vertragsstrafe and thus has not made it clear that he has reserved the right to reduce, then he or she loses his or her right to call on the possibility of reduction.
Despite this penalty clauses are also controlled in this situation, especially when they appear in general conditions. German law deals with a Vertragsstrafe set at an unreasonably low level in a different manner than Dutch and French law. It is however imaginable that a judge could treat a high Schadenspauschale as a Vertragsstrafe and reduce it on this basis, but that is not always possible. Swiss law begins from the same starting point: both variants of the penalty clause are valid and a distinction is made between the incentive Konventionalstrafe on the one hand and the pure assessment of damages clause, the Schadenspauschale on the other.
The ratio of this distinction is also clear. A statutory regime only exists for the Konventionalstrafe , in Article et seq , Swiss Code of Obligations. The rule is also here that the Konventionalstrafe is enforceable, and the reduction of high penalties an exception. This reticence is strictly observed in practice. The reduction competency is not directly applicable to Schadenspauschalen in Switzerland either.
However commentators have argued for an analogous application because both legal constructions strongly resemble each other and both can, in hindsight, entail unreasonable consequences. An important question rises as to the accumulation of the penalty clause alongside other remedies available for failure, such as demands for performance, termination or compensation see Chapter 6.
Does this necessarily mean that when calling in a contractual penalty, other remedies can be circumvented?