We briefly point out about the moratorium Penal clause

According to the Chicago School of law and economics, individuals react to negative and positive economic stimuli, causing the law to directly influence the economy and the economy directly the law.

In this line of reasoning the study of penal clauses in contracts is inseparable from its reason for creation, based among others on the concept of economic law.

Through penal clauses, economic consequences are established for a party that fails to comply with its obligations. More than that, the penal clause aims to force the contractual performance so that the performance must be more economically advantageous than the default.

To illustrate your application imagine the following case:

In a purchase and sale agreement it is stipulated that payment is made within 30 days, but the contract does not define a fine, interest, or any other penalty for late payment. In this example we have that economically it is more viable to wait for an eventual execution of the outstanding amount than to make the payment on the due date.

Now imagine that in this same contract a penalty of 2% was stipulated for default and interest of 1% per month from the date of default until its effective payment. In this example, respecting the specifics of each case, the stipulation of these penalties makes the payment on the stipulated date more economically and legally advantageous than its default, which encourages the agent to comply with the contractual obligation.

Now that we have gone through the rational that sustains the stipulation of penal clauses, in the civil code, more specifically in Article 409[1], we have the general concept of Penal clause, as well as the creation of 2 (two) species of penal clauses, being the compensatory or indemnifying, and the moratorium clause, of which we will address in this article only the second.

The Penal moratorium clauses are those that provide for a pecuniary value as a penalty for default, but that do not include in their eventual value compensation for losses and damages, which, in practice, will entail to the defaulting party not only the payment of the fine, but also of the losses and damages, if any.

In both types of penal clauses, these cannot have their value fixed at random. On the contrary, the values of the penalties must, among others, observe the limit of the value of the contract, as we can observe the provisions of articles 410, 411 and 412[2], all of the Civil Code.

Exception made to this limitation is for the cases of the application of the efficient default theory, which argues that, in some cases, the default presents a better economic result than the default, and, in these cases, the default is motivated by the legal system (this theory is used, for example, in contracts involving professional athletes, in which the value of the penalty for early termination is much higher than the value of the contract itself).

We also emphasize that the double incidence of penal clauses is prohibited, that is, 2 penalties for 1 single obligation.

Finally, although penal clauses make it more economically and legally advantageous to comply with an obligation, their provision does not guarantee compliance, which must be sought through contractual guarantees, such as: guarantee, bail, surety; real guarantees; among others.

Leonardo Theon de Moraes-lawyer, graduated in law, with emphasis in business law, from Universidade Presbiteriana Mackenzie (2012), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2012). Postgraduate and Specialist IN Business Law from the São Paulo Law School of the Getúlio Vargas Foundation (2014), Master in political and Economic Law from the Mackenzie Presbyterian University (2017), author of books and articles, Lecturer, University professor and member of the São Paulo Lawyers Association (AASP). Founding partner of TM Associados.

Pedro Anselmo Boaventura-graduated in law, from Centro Universitário Padre Anchieta (2021). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Paralegal of the advisory Department of TM Associados.

[1] Art. 409 the penal clause stipulated jointly with the obligation, or in a subsequent Act, may refer to the complete non-performance of the obligation, to that of some special clause or simply to the late payment.
[2] Art. 410. When the penal clause is stipulated for the case of total default of the obligation, it will become an alternative for the benefit of the creditor.
Art. 411. When the penal clause is stipulated for the case of late payment, or in special security of another determined clause, the creditor will have the discretion to demand the satisfaction of the penalty commended, together with the performance of the main obligation.
Art. 412. The amount of commination imposed in the criminal clause may not exceed that of the main obligation.