Cláusulas penais: critérios de distinção na perspectiva civil-constitucional

Abstract

Complex debates are held in relation to the functions attributed to Penal Clauses After radical and opposite interpretations prevailed based on either indemnifying or penalising functions of the clauses as per the widely accepted mixed penal clause theory now it is accepted that such clauses hold the ability to perform both functions concomitantly based on their role in the law of obligations In this scenario the penal clause stands out as an effective tool in favour of the obligation s accomplishment The determination of the penal clause s function based on its intrinsic role in the obligation not anymore as an independent clause in relation to the other contractual terms demands a detailed and careful segregation of their types (indemnifying or penalising penal clause) aiming at identifying the role of each of these functions based on a detailed analysis of the triggering events to which they relate to mora or default This procedure allows not only to distinct each of the functions of the penal clause but also favours the determination of the qualifying hermeneutic criteria in concrete by indicating key elements that enable the identification of the function chosen by the parties