The Supreme Court ruled in a recent decision on whether it is valid to negotiate a contractual penalty under the Civil Code by an agreement confirmed in writing by only one party to the contract (debt). In his decision file no. 33 ICdo 15/2012 of 31.10.2012 reached a negative collection.
In this case, a loan agreement was agreed between the participants. Due to long delays, the creditor required recognition of the bond. The long-term bond was acknowledged in writing and in the acknowledged bond he undertook to pay the creditor a contractual penalty. Subsequently, insolvency was started over the debtor’s assets. The creditor registered his claim for a contractual penalty in insolvency, but the insolvency administrator of his claim ashes. In the ensuing litigation, it was determined whether the contractual penalty was valid.
Definitely the first regulations
The institute of contractual fines is regulated in the Civil Code in 544 and 545 of the Civil Code. According to 544 paragraph 2 of the Civil Code, the contractual penalty must be agreed in writing. In this case, it was a question of whether it is sufficient to meet these conditions if the debt unilaterally introduces a contractual penalty to be paid.
The Supreme Court decided that the contractual penalty must be agreed in writing, so the negotiator must have a written contract signed by both parties. A mere unilateral agreement (as a confirmation of the agreement) does not fulfill the condition specified in 544 para. 2 of the Civil Code and the contractual penalty thus agreed is invalid within the meaning of 40 of the Civil Code.
In practice, in this case, it would probably be sufficient for the debtor to sign the debtor with the additional text, with the agreement on the contractual penalty consent.
The first sentences of the judgment file no. 33 ICdo 15/2012
I. A contractual penalty can only be validly agreed by written agreement, a unilateral written obligation is not sufficient.
II. The civil conclusion is based on the principle of formality of the first con, ie. that the first con part must be one of the words (wall, written, gestural) and implicit, if it does not raise doubts about what the participant wanted to express (cf. 35 para. 1 of the Civil Code). With regard to the first certainty, the entity also requires written form in the case of a contractual penalty agreement (544 para. 2 of the Civil Code). Failure to comply with the law stipulates the form of the first act of civil law in the provision of 40 para.
III. Civil law two subjects have the opportunity to determine the form of the first act by their agreement. This option may only apply to the exact form of the first act determined by the law (to the written form or to go to the written form of a single document). Failure to comply with such an agreement by the subject determined (as opposed to the legal form) of the first act is sanctioned by its relative invalidity, which the subject must have to invoke (40a of the Civil Code).