Revue Algérienne des Sciences Juridiques et Politiques
Volume 60, Numéro 3, Pages 177-198
2023-06-11
The Penalty Clause: From Penalty To Compensation A Comparative Study In Algerian And German Law
Authors : Boulmerka Amina .
Abstract
The aim of this study is to contrast the penalty clause in Algerian and German law, to find out about the role of the penalty clause in Algerian law. This legal trick of Roman origins has been used in its repressive dimension, the most archaic, as a means of pressure on the debtor being forced to perform his obligation, not by respect to the contract but for fear of being sanctioned by a penalty. And once again arises the dilemma of the judge-control in front of the will of parties, especially in Algerian law. Hence the need of a comparative study in German law, faithful to the punitive version of the penalty clause as a ‘true sanction’ deserved for the simple fact of non-performance of the main contract, and regardless of the damage incurred by the creditor.
Keywords
Compensatory character ; comminatory character ; Roman law ; conventional compensation ; judge control
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