The penalty (including penalty or convention penalty called) designated contract law one of the other Contracting Party binding promised sum of money in the event that the promising debtor his contractual obligations not met or not in due manner.
It is also known as Pönale ( Latin poena , punishment '; English penalty [ ˈpɛnl̩tɪ ] ( )). In addition to the penalty (plural penalties), the penal (plural penalties) is also used . From this the promise of punishment ( Latin poenae stipulatio ) was developed.
Convention punishment is the Germanization of the Latin poena conventionalis. Latin conventio means contract in the figurative sense.
Contractual penalties can be found in various areas of law , for example in sales law (e.g. to secure a delivery period ), in building law (e.g. to secure the construction period with a completion deadline) or competition law (to secure a cease and desist declaration ).
Such a contract is agreed by two contracting parties if the exact compliance with the contract is particularly important for the client (buyer) (for example if something is to be delivered , built , performed or omitted on time).
The obligee of the contractual penalty (e.g. buyer, builder, omission creditor) does not have to prove that damage has occurred . In the case of a corresponding agreement, he is entitled to the penalty if the debtor (e.g. seller, building contractor, covenant debtor) does not perform his service on time or in accordance with the contract.
Penalties are atypical claims . As a rule, they are specifically quantified or they can be easily determined and calculated and thus easily requested. In competition law, the so-called "modified Hamburg custom" or the so-called "new Hamburg custom" can also be found to determine the amount of the contractual penalty, according to which the obligee of the contractual penalty can determine it himself, but the debtor has the option of changing the specific amount to have the competent court checked.
A legal regulation in Germany contains the § BGB . It can be changed by a contract under the law of obligations between the contractual partners. The purpose of such penal promises is to induce the debtor to behave in accordance with the contract (pressure medium). In addition, in the event of a breach of contract, the obligee can assert the contractual penalty as minimum damage without having to rely on contractual or statutory claims, which if asserted he would have to prove the amount of the specific damage.ff.
There are often agreements on contractual penalties
- in labor law (see below ),
- in competition law ,
- in the work contract , in particular in the construction contract or in the work delivery contract (see binding period ),
- in contracts between merchants,
- in declarations of cease and desist with criminal penalties (see warning ),
- in mass business of everyday life.
A contractual penalty can apply regardless of whether damage has occurred and how high it may actually be. In addition, the buyer can still demand the ordered goods in sales contract law. The defaulting creditor is still entitled to a cease and desist from the anti-competitive behavior.
If a contractual penalty is disproportionately high, it can be reduced by judgment according to businessman and has promised the contractual penalty in the operation of his trade ( HGB ). In order to circumvent the legal consequence of ( HGB), the contractual penalty is often promised according to the "modified Hamburg custom", s. above.BGB. This does not apply if the debtor is a
A contractual penalty is to be differentiated from the forfeit money according to BGB, in which the withdrawal is bought, and a lump sum compensation , which only serves to facilitate the evidence and process economy.
A form clause through which the landlord can promise a contractual penalty from the tenant in the rental agreement is ineffective according to BGB . However, this only applies to residential tenancy law . Likewise, a contractual penalty in the general terms and conditions against consumers according to BGB, but also in legal transactions between entrepreneurs according to BGB, may be ineffective.
- when not starting a job,
- when leaving the company without observing the notice period ,
- in the event of a breach of confidentiality obligations .
The contractual penalty must be expressly formulated in the employment contract and highlighted in a legible manner. The amount of the penalty must be determined in advance. It should normally not exceed a month's salary.
- misleading information on the health benefits of medicinal products,
- a violation of the labeling obligation for food supplements or
- the use of ineffective general terms and conditions.
While the omission creditors often demand a fixed contractual penalty, the omission debtor promises - which is legally permissible - usually a contractual penalty of an indefinite amount according to the so-called "modified Hamburg custom", see above. In the case of a fixed contractual penalty, an amount of over 5,000.00 EUR is often chosen in order to determine the factual jurisdiction of the regional courts (with supposedly higher legal and technical competence) for a contractual penalty action ( GVG ).
Mass business of everyday life
In the case of so-called bulk transactions, contractual penalties serve to simplify the processing and to rationalize the operation more cheaply. So z. For example, in the area of rail transport, contractual penalties are used against fare dodgers who have to pay an "increased transport fee" in the event that a valid ticket has not been purchased. Theconstitute the legal basis for this contractual penalty .
In general terms and conditions, contractual penalties are used, in particular for private parking space management . This type of contractual penalty is subject to much discussion about an alleged "rip-off" by the parking space managers, but is considered permissible by the case law of the Federal Supreme Court and the prevailing opinion in the legal literature. In particular, contractual penalty clauses, which are aimed at preventing illegal parking, generally do not violate No. 6 BGB.
The contractual penalty in Austria is a lump-sum compensation (penalty) and, according to its systematic position in the ABGB, a special case of damage caused by delay , which must be contractually agreed. It is to be provided if the contractually agreed service has not been provided at all, has not been provided properly or has been provided too late ( ABGB). The contractual claim to performance continues. The contractual penalty does not exclude further damages (§ 1336 Paragraph 3 ABGB). The amount is subject to a judicial review of its appropriateness (Section 1336 (2) ABGB). The so-called moderation is based on the damage conceivable as possible at the time of their agreement, based on an ex-ante consideration. The question of the amount of real damage, however, is irrelevant. Since the Business Enterprise Code (UGB) contains no more special, § 1336 Civil Code, including moderation, since 1 January 2007 on entrepreneurs is applicable.
The contractual penalty is independent of the actual occurrence of damage. Rather, in addition to the simplified compensation of the creditor disadvantages caused by a breach of contract, it also aims to provide additional pressure to perform in the interests of the creditors, which is worthy of legal protection. The pressure to perform is intended to avert the typical dangers of specific damage to the obligee as a result of the non-fulfillment or improper fulfillment of the relevant contractual obligation in an ex-ante consideration according to the respective circumstances of the individual case. The contractual penalty is often also intended to compensate for non-material disadvantages and mere inconvenience or loss of time which, according to general civil law criteria, could not be easily replaced.
In case of doubt, the contractual penalty is only to be paid if the debtor is also to blame for the non-performance or poor performance.
“The delivery and installation of the entire kitchen equipment according to the contract and the enclosed plans must be completed by March 10, 2014. For each day by which this deadline is exceeded, the client receives a penalty of 2% of the order amount (plus applicable VAT ). Saturdays, Sundays and public holidays count like working days. "
Such other parts of the contract could previously threaten the existence of entrepreneurs . In the construction industry in particular , there were often cases in which the penalty had to be paid for non-compliance with the contractual performance. In the meantime, maximum limits for contractual penalties (both daily and total) have been established, especially in the construction industry.
It is particularly important to note that the seller (service provider) must pay the penalty and also fulfill the contract.
- Stefan Kramer: Contract penalty agreement and content control , labor and labor law (AuA) 2005, pp. 155–157
- Konstantin Pochmarski, Christina Kober: Aspects of the correct agreement and handling of contractual penalties Bau aktuell 4/2015, pp. 127–131 (on the legal situation in Austria)
- Carl Heinrich Wilster: Juristic-literary concise dictionary to explain the most important terms and foreign words that occur in business language and in scientific writings, 1833, p. 131, digitized .
- Karl Ernst Georges: Comprehensive Latin-German concise dictionary. Hannover 81913 (Reprint Darmstadt 1998), Volume 1, Sp. 1660, digitized
- Press information accusation Contipark rip-off. Retrieved February 24, 2020 .
- Judgment of the XII. Civil Senate from December 18, 2019 - XII ZR 13/19 -. Retrieved February 24, 2020 .
- General Civil Code for the entire German hereditary countries of the Austrian Monarchy RIS , accessed on August 22, 2016
- OGH, December 19, 2000 - 1 Ob 170 / 00g
- HaRÄG, Federal Law Gazette I No. 2005/120
- Katharina Müller: It depends on the right judge. Is the exclusion of the judicial right of moderation for penalties in the construction contract effective? Which moderation criteria apply? Bauzeitung 17/2014
- OGH, December 19, 2000 - 1 Ob 170 / 00g
- OGH, June 11, 2002 - 1 Ob 116 / 02v
- OGH, October 24, 2005 - 9 ObA 136 / 05y
- Peter Fassl: Penalties in the practice Spengler Fachjournal 02/2012
- Extension of construction times and their effects on penalty agreements. Provisions on penalties according to ABGB and ÖNORM B2110 Bauzeitung 23/24 2013