1.3. History of the legislation on the penalty, the foreign LEGISLATION On the PENALTY

For deeper understanding of essence of the penalty in domestic and foreign civil law it is necessary to stop shortly on history of occurrence and development of the legislation on the penalty. We will be occupied, first of all, with problems of regulation of obligations of the penalty in commercial relations.

the question on an origin of the term "penalty" with reference to Russian liability law is interesting. The origin of this name speaks in K.A.Grave's devoted to the contractual penalty work which was quoted earlier. According to K.A.Grave, the penalty history ascends by times of "the Russian Truth» and more ancient sources of Russian right. Articles 50-53 of the Troitsk list of the Russian Truth speak about "rezah", i.e. percent on unsatisfied obligations of a loan. Zajmodavets could demand only small percent: « And monthly rez, ozhe for few imati to it », and in case of excess of the sum of percent over the sum of the basic debt - could count only on reception of one third of sum of percent [38] . So in an antiquity understood realisation of a principle of fair responsibility under obligations. Growth","a gift» and others [39] were penalty synonyms (the penalty and percent) in Russian medieval certificates also «penja","vira",".

C those times in Russian proverbs have remained and sayings where verbs"to stand "and resist" were used in two values: first, in sense of physical stability; secondly, in sense of fidelity to the given promise given to a word.

further, from the second sense of a verb "to resist" the new word - "ustojka", designating execution of the promise has been formed. As negation of execution of the promise has started to be used a word "penalty". However, in the beginning the term "penalty" meant actual default of the obligation, instead of property consequences in connection with default.

in XVIII century the situation has changed, and as the penalty adverse consequences for the defaulter began to be called.

the term "penalty", as well as "penja" also long time is used in the domestic law. Them it is possible to find out in «the Russian Truth» where "penja" it is used approximately in 94, and the penalty in 87 cases [40] [41] , and also in other normative acts of that time. We will specify only «the Decree about tatebnyh affairs» from November, 28th, 1555, «the Sentence about lip affairs» from August, 22nd, 1556, «the Sentence about false witness and feigned actions» from March, 12th, 1582, «the Decree about a summer residence of the empty earths in a privilege» from November, 19th, 1641. Unlike the present right penalties of that time were often levied in favour of the Sovereign and were, as a rule, a measure of public influence.

it is necessary to notice, that the legislator of the pre-Pertine period of development of private law as a whole negatively concerned the penalty in its present understanding and to percent ("growth") on the delayed liabilities. In item 255 of the Chapter of X Cathedral Ulozhenija it is specially underlined 1649: « And praviti extra money on kabalam and on spiritual on zaimshchikah istsom true, and to growth on those extra dengi not praviti, because by rules sacred the apostle and sacred the father to growth on extra dengi imati not veleno » [42] .

Special interest represents the Statute of the Great princedom of the Lithuanian 1529, concerning, undoubtedly, to monuments of Russian right, but tested on itself the big influence of the European legislation.

In this complex normative act the big number of instructions about collecting of penalties and penej (lawful penalties as we now would tell) in favour of the claimant contains. So, in Section the ninth« About lovah »(item 10) it is specified, that injury by obryvanija or fellings hmelnika involves the penalty in favour of the proprietor and the grand duke, and breakage hmelnika without felling - compensation of a damage with penej [43] . Here we obviously trace communication of West Russian right with modern to it the European codifications. Let's compare the Statute with Saxon Zertsalom XIII century and Carolina 1532 Both feudal codifications contain a considerable quantity of norms about compensation of harm (losses) simultaneously with payment of penalties. An another matter, that during that epoch penalties were not only civil responsibility, but also a punishment under criminal law measure. Sometimes they are difficult for dividing. For property damage followed pay compensation to the owner lena, to pay the penalty to the sovereign and viru (penalty) in favour of the victim. As a whole it is possible to approve, that, since XV-XVI centuries, Russian right has tested strong influence of the western legislation. D.I.Ilovajsky saw the reason of it in the Half-Skolitovsky union [44] . Anyhow, gradually in the Russian right the indemnification and penalty were divided on two forms of responsibility. The penalty has got retaliatory character and began to be collected irrespective of losses.

considering penalty history in the domestic law, K.A. Grave has paid also attention to such documents, as:

- «the Charter about bankrupts» from December, 19th, 1800 by which the penalty for delay of payment at a rate of 3 % of the not paid capital was established,

- «promennuju estate record on an estate» (i.e., speaking to the modern language, the barter of manors of noble family) from the January, 3rd, 1694, concluded between Peter, Ivanov son Kazimirovym and Dmitry, Nikiforovym son Shalimovym, providing penalty in 200 roubles for exchange breach of contract.

in addition it is possible to refer on Cathedral Ulozhenie 1649 In this document on penalty application it is spoken in the comment to item 5 of the chapter XV [45] .

At Peter I and its successors on a throne during economy transformations there was objectively necessary a reduction of Russian private law in conformity with the European model. Norms about penalties contained both in Empire laws, and in Nominal decrees of emperors, Senatorial decrees, decisions Pravitelstvujushchego of the Senate (senatorial decisions). In many cases of the penalty represented the penalty collected from the offender in favour of the dissatisfied party over the indemnification (lawful penal sums) that is characteristic for European civil law XVII-XVIII centuries, loans of norms about penalties whence were made.

developers of the first Russian Civil code in the beginning of XIX century, certainly, analyzed modern it the foreign legislation. As a result the penalty institute has been borrowed from the Austrian right, to be exact, from the General Civil code of the Austrian empire of 1811 The matter is that directly to borrow norms from Napoleon's code then was considered indecent for Russia. Already in project GU of 1814 as a source or the sample for norm about the penalty (§ 45) has served the item 1152 FGK 1804ćĖ the legal design of the Austrian norm which at that time most accurately transferred sense and the penalty maintenance though penalties existed in the Russian right and earlier has actually been transferred.

emperor Alexander I has not accepted Project GU of 1814, and codification of the Russian civil law has been postponed till the end of XIX century Work over new GU has begun in 1882 when the Editorial commission has been founded. The commission carefully investigated the modern German and Swiss legislation. It has been as a result prepared three editions of the book by heel GU - "Liability law". Last edition containing 1216 articles, has been presented to 1913 to the State Duma by Minister of Justice I.G.ShCheglovitovym. The project of this part GU has not been accepted, as in August, 1914 world war, and then and revo - [46] ljudija 1 has begun. At the same time, Russian researchers of problems of civil law on a boundary XIX and quite often referred XX centuries to the Project, finding in it of acknowledgement to the theories or criticising it (G.F.Shershenevich, V.I.Sinajsky, I.A.Pokrovsk, etc.) .

on January, 19th, 1833 at session of the State Council it has been solemnly declared promulgation of the Code of laws of Russian empire. Arch creation was, according to emperor Nikolay I, one of the major affairs of its reign. The head of the commission on creation of the Code of laws M.M.Speransky has been welcomed Andrey Pervozvannogo's by the higher award. More half a century the Code of laws was a basis of the Russian legislation. The most considerable theoretical work of Russian civil law, along with D.I.Meyer's works, in Arch action, by right it is considered «a civil law Course» K.P.pobedonostseva who has sustained two editions during lifetime of the author. Us the third volume of "Course" devoted to a liability law interests, for the first time published in 1880

pobedonostsev in the work has paid to the penalty in Russian right considerable attention. Paragraph 35 in the chapter XI is entirely devoted the penalty. The material statement gives to the reader a full and universal picture of application of the penalty, as. A way of maintenance of obligations in the middle of XIX century [47] [48] . The author results numerous examples of the Russian judiciary practice of XIX century on affairs about penalty.

K.P.pobedonostsev approved, that in Russia the penalty «is a kind peni for malfunction, instead of compensations of losses, not maintenance of consequences of default». In it the Russian legislation differed from the European. In the French right as the author marks, the penalty principal value consists in damage compensation, therefore connection tre - bovany «on the substance of the contract and for the penalty» [49] there is impossible. It means, that to the middle of XIX century development of the Russian civil law began to lag behind a little from European in which there were theories about the penalty as in advance liquidated damages. The European right has passed to domination of estimated function of the penalty, including, from reasons of protection of debtors from abusings of creditors. Backlog of Russia in this sense has been caused by distinction of a social and economic structure: in our country to the middle of XIX century the majority of the population was personally not free.

K.P.pobedonostsev discriminates lawful and contractual penalties, thus lawful penalties operated in contracts between private persons and contracts with participation of the state (treasury). We Will pay attention to penalties in commercial obligations.

penalties in commercial contracts have been established by the legislation more often. Article 587 of the Charter Trading provided a risk in the contract of marine insurance in the form of the penalty at a rate of 100 % from the insurance premium. According to the item item 87-90, 208 Positions about State podrjadah under contracts with treasury from the faulty contractor, a carrier or the supplier it was collected over the indemnification («in the penalty») the penalty on 0,5 % a month from the contract price. Thus the size of the penalty has been legislatively limited 6 %. About the same rules operated concerning deliveries for military needs. Difference of regulation of military deliveries consisted that military department and the contractor defined the size of the penalty within 10-25 % of the price of the contract, and the obligation of the penalty as wrote K.P.pobedonostsev, was provided with special pledges. In other cases of the conclusion of contracts between businessmen and the state structures of the party could define the size of the penalty independently.

under the general rule the contractual penalty was applied only when it was not defined by the law. Therefore it was impossible to adjust the penal clause in loans for consumption, as the item 1575 Codes of laws established the penalty at a rate of 3 % at a time for non-payment in time. In the same way in contracts between private persons about ship hiring under cargo (the freight or tserterparty) the parties have been obliged to execute the instruction of the item of item 326, 330-332 Charters Trading.

the size of the contractual penalty, in general, was not limited to the law, except for the Chernigov and Poltava provinces where the penalty could not exceed the sum of the basic obligation. The penalty could not be reduced or increased court, on not paid penalty percent were not charged.

in the last on time before revolution the full textbook of civil law professor V.I.Sinajsky gives the following overall picture of the legislation on penalties in Russian empire:

- penalties in the Russian right if other was not provided by the law or the contract, had penal character;

- the Russian practice did not recognise the liquidated damages;

- there were lawful and contractual penalties, and contractual penalties demanded written registration;

- contractual penalties supposed payment not only money, but also other things;

- contractual penalties could not be applied to maintenance of obligations in which relation there were lawful penalties [50] .

Considering the foreign legislation on the penalty, we will notice, that norms about payment of penalties for default of private-legal obligations can be found even in laws Hammurapi.

In the European legislation of norm on the penalty are obliged by the origin to the Roman private law. In the Roman Law to the penalty approximately there corresponded institute "stipuljatsii", i.e. the oral reservation. Sti - puljatsija it was stated in the form of the contingent liability on a case of infringement of one of the parties of the main, basic obligation. The reservation (penalty) helped to fix the contract, which in itself did not use civil law protection [51] . As the penalty in the Roman Law could act both a sum of money, and other property. Categories of the penalty and peni were used in various legal sources. The penalty had character of punishment for criminal acts and infringements of rules of procedure. Penej the sum "sponsii" - the sum which promised by one party in favour of another and is coming under to payment in case of loss of process [52] was called.

For more accurate understanding of complexity of development of the European right after disintegration of Roman empire it is necessary to notice, that in the right and morals of the beginning of our era two mutually exclusive tendencies struggled. The first of them has been connected with ideology of Christianity and assumed refusal of mercenary motives in relations between subjects. The norms of Laws Moiseja included in the Scriptus (25, chapter 22) say that «if you will lend money..., do not oppress it and do not impose on it growth» [53] . By the way, the Koran expresses concerning commerce still opredelennee: « The Allah has resolved trade and has forbidden growth »(Sura 2, 276) [54] . Other tendency is connected with privneseniem in laws of customs of barbarians (« barbarous truths ») on which any offence was punished by the penalty irrespective of compensation of a real property damage.

during the reception of the Roman Law of norm about penalties have got to many European civil-law certificates. In XIX century the penalty was mentioned

in front lines on that time Civil codes (ulozhenijah) France, Germany, Austria, Switzerland. At the same time, up to XVIH-XIX centuries in the European right of the penalty acted more often in the form of penal and were collected irrespective of losses. However, by the end of XVIII century under the influence of ideas of great educators, legislators began to approach the French Revolution to the penalty a little differently. In the head of a corner at infringements of civil-law obligations the indemnification has been put, the penalty has gradually lost retaliatory function, and subsequently became test, i.e. an indemnification part.

before creation of the German empire in 1871 the separate German states had own legal systems among which were especially allocated Bavarian, Saxon and Prussian. In territory of Great Duchy Saxon the Saxon civil code of 1863 operated, in other German territories the French Civil code of 1804, and also ancient medieval charters and statutes and even directly borrowed Roman private law operated. It is characteristic, that the Roman private law was applied in a subsidiary order, i.e. in the absence of law express indications, in all territory of Germany that explains its special role at formation of the German civil law.

in XIX century During a time of unifying movement to Germany, creation of the uniform Civil code became one of national problems. Thus for a basis was the Roman Law and, partly, the German feudal normative acts is taken. A theoretical basis of working out of the new code works of the German lawyers of Charles have put in pawn background Savini and Bernharda Vinshejda. The commission on working out of the German Civil code has presented two variants of the code: from 1888 and from 1895 Last project has been approved by the emperor on August, 18th, 1896 and has become effective in all territory of the German empire on January, 1st, 1900

Advantage of the German Civil code, undoubtedly, registration become is classical in pandektnoj to system opredele -




ny and concepts of "transaction", "obligation", principles of execution of contracts, independent property responsibility of participants of civil-law relations.

throughout XX century Ulozhenie was exposed to changes, especially after 1945 The largest changes have been brought in institutes family and the housing law. Other changes which consideration is beyond the present work have been brought also. In 1992 the project of changes of the book the "Liability law", however the taken place association of Germany have been published has removed on a background reform of the civil legislation. Actually, changes in Ulozhenii have become effective only in 2002

the German Civil code of 1896 defining impact on working out of the civil legislation of variety of the countries has made. Just like the German Civil code Civil codes of Japan, China, Greece, Finland, some Latin American countries have been created.

the German civil code has rendered huge influence on working out of the project of the Russian Civil code of 1913 and the first Civil code of RSFSR 1922, especially norms of a liability law, including norms about the penalty.

In G ermanskom the civil code to the penalty are devoted §§ 339-345. The contractual penalty should be a subject of directly expressed arrangement between the parties. It was accordingly noticed, that the agreement on a contractual fine has, therefore, special value: «it gives the chance to the creditor to be insured against such negative facts which do not give in to digital expression or in general are non-material inherently» [55] . By the nature the obligation to pay the penalty is not the independent obligation. Its destiny directly depends on destiny of the main obligation with which it provides. In this sense the penal clause is the accessory obligation, that in certain degree is reflected in the German civil code (§ 344): « At invalidity of the obligation owing to the law the agreement on penalty payment on a case of default of the obligation even if to the parties invalidity of the basic obligation » [56] was known is void also.

In the German civil code regulation of payment of the penalty on cases of default of the contract and inadequate execution of a contract differs. So, if the debtor is obliged to pay the penalty in case of obligation default the creditor can demand payment of the penalty instead of execution of a contract. If the creditor has declared to the debtor, that he demands penalty payment a requirement presentation to execute the obligation is excluded. In the same way the requirement of execution of the basic obligation excludes the right to receive the penalty established on a case of default of the contract. If the agreed penalty is provided on a case of inadequate execution of the obligation, in particular delays in performance the creditor can demand penalty payment along with obligation execution.

in cases when the dissatisfied party has the right to compensation of the suffered losses according to general rules about the contractual responsibility, the size of the penalty established in the contract is considered, how the lowest limit of the size coming under to compensation to the party of losses, and it can make the demand about collecting of the losses exceeding the size of the penalty. In this case the penalty will have test character.

if in the contract the penalty which payment is caused by inadequate execution of the obligation is established, and the dissatisfied party has accepted inadequate execution the right to receive the penalty remains at it only in case at acceptance of execution it is specially reserved

(§ 341 11): « If the size of the penalty considerably exceeds any interest of the creditor in execution of the main obligation collecting of such penalty is operation of the debtor concerning rather unimportant omission » [57] .

Such relation contradicts« kind customs »and court the right to reduce the size of the penalty is fairly given. Accordingly the German right directly assigns to court the right at own discretion to reduce the size of the penalty established by the contract (§ 343 GTU).

the granted right can be carried out by court only in the presence of certain conditions. So, first, the debtor obliged to payment of the penalty, should to address in directly expressed form with such petition to court. Secondly, the size of the penalty should be excessive with the account not only property, but also all other worthy interests of the creditor. It was noticed, that thus in attention should be accepted not only time of making contract and the penalty coordination, but also the moment in which there was a breach of contract. Thirdly, the penalty should not be still nevyplachena as after penalty payment its reduction is not supposed.

at the same time if the obligation provided with the penalty follows from trading, commercial activity the penalty is lowered cannot be (§ 348 GTU). For comparison we will specify, that on the Russian civil law the court has the right to reduce the size of the penalty at its disproportion to the caused losses irrespective of, the obligation was commercial or not. But at all rigidity of the given instruction of a rule § 348 GTU were exposed in the German doctrine to wide interpretation, and in a corresponding channel extensive judiciary practice has been turned out. So, despite of everything, it is considered, that the penalty can contradict morals general provisions, and for this reason she admits insignificant (§138 GTU).

the Requirement of the penalty from the valid agreement can break on occasion a conscientiousness principle,-Treu und Glauben (§ 242 GTU), for example, insignificance of breach of contract or infringement consequences. The penalty promise also is void, if preconditions of loss of the penalty are insufficiently defined or cannot be established by interpretation (§ 133,157 GTU).

According to the French right of the party also can provide in the agreement cases of breach of contract and define the size of compensation which should be given the debtor if such breach of contract takes place. The French Civil code (FGK) establishes, that «the retaliatory reservation» [58] is such reservation by means of which the person, with a view of maintenance of execution of the agreement, is obliged to something on a default case. FGK in item 1227 fixes accessory character of the penalty: « Negligibility of the main obligation involves negligibility of the retaliatory reservation. Negligibility of this of last does not involve negligibility of the main obligation ».

Some authors aktsessornost agreements on the penalty spoke that the reservation on the penalty has the subject indemnification of harm from default [59] .

the Penalty in the French right, really, is characterised bolshej by a compensatory orientation, than in the German right. So in item 1229 FGK it is directly specified, that the retaliatory reservation (penalty) is compensation for losses which the creditor suffers owing to default of the main obligation. The opinion was expressed, that now the penalty represents simply general calculation of the losses, which subject - to warn litigation and difficulties of definition of losses.

Was considered, that, having established in the contract the penalty, the parties definitively, in figures, have defined the size of the losses which are coming under to compensation in case of default or lateness in execution of the obligation. Such approach spoke existence until recently positions, according to which creditor lower sum even if the court considers the sum specified in the contract insufficient or excessively high (item 1152 FGK) could not be awarded court neither higher, nor. The given rule ¹75-597 from July, 9th, 1975 has been changed by the law. Now to court is accorded to reduce or increase a right the size of the penalty which has been established if it is obviously excessive or insignificant. Any opposite reservation admits insignificant [60] .

the Given change has been directed on prevention of abusings by an autonomy given to the parties in the coordination of the contractual penalty that led frequently to an establishment of unequal position economically weaker partner. The question on, whether is the penalty obviously excessive or insignificant, should dare court with reference to the moment of breach of contract.

how much there corresponds the arisen damage to that it was possible to expect at making contract, does not play any role for an establishment of a parity of the penalty and the arisen damage.

the French right also defines alternativeness of the penalty shown in the right of the dissatisfied party to demand instead of payment of the penalty of execution of the main obligation by the debtor, admitted delay (item 1228 FGK). The creditor in this case also has the right to consolidate both requirements, i.e. To demand payment of the penalty provided on a case of delay in performance of the obligation, and specific performance of the contractual obligation. However such kumuljatsija remedies at law of the dissatisfied party it is not supposed, if the penalty is established for others on -

rushenija, except delay; in similar situations it is necessary to choose either penalty payment, or obligation execution in nature.

in a case when the contractual obligation has been executed partially, to court the right to lower the size of the reserved penalty in proportion to benefit which delivered to the creditor part performance is granted. Any opposite reservation admits insignificant (item 1231 FGK).

the Anglo-American conventional law considerably differs from corresponding positions of the countries of the continental legal system. It is expressed in an opposite estimation of character of the supposed contractual conditions establishing a duty of payment by the broken party of a sum of money which is defined by the contract.

According to the continental law, for the prevention of infringement and punishment of the infringer of the contract of the party in addition to the full indemnification of losses can provide also the penalty. However in angloamerikanskom the right the justice beginning opposes penalties, reducing them to level of really suffered losses.

the question on, whether is collected the sum provided by the contract in case of its infringement, depends on character of the given sum in relation to a prospective damage: whether is it the valid tentative estimation of the future damage or is established for the purpose of influence on other party that that has honesty executed the obligation, i.e. has character of the penalty. The decision of this question depends on interpretation which should take place taking into account conditions and the circumstances of each concrete contract estimated at the moment of making contract, instead of at the moment of its infringement.

in business Cellulose Acetate Silk Co v. Widnes Foundry (1925), Ltd (1933) parties have agreed to pay «in the form of the penalty the sum of 20 pounds sterling for every week delays over 18 weeks» in delivery of the certain equipment. The losses estimated on this basis for the infringement, coming under to payment by the respondent, have constituted about 600 pounds sterling whereas damage really suffered by the claimant was equal to 5850 pounds sterling. Therefore he has declared, that has the right to ignore the penalty and to demand really incurred losses. But, however, from circumstances of business appeared, that the parties should know, that able to be caused the damage, considerably will exceed the specified sum. Therefore the House of Lords recognised, that the given sum not the penalty, and only a maximum which appellants have agreed to pay as indemnification for delay so, losses should be limited by the adjusted sum [61] [62] .

Besides collecting of such losses the creditor in the general order can claim damages, if there was an infringement which has been not provided ogovorkoju about compensation of in advance adjusted losses. This position matters, as, when the parties in the contract provide payment of "in advance adjusted losses» on a case of concrete infringement (for example, delay in delivery), it does not deprive the dissatisfied party at breach of contract on other bases to demand the indemnification, having shown proofs of presence of the size of the valid damage.

the Question in, whether is the adjusted sum the penalty or in advance liquidated damages, can arise only when event in connection with which it comes under to payment, is breach of contract. If, for example, the contract stops voluntary breaches of contract are not present, and the question on the penalty or liquidated damages cannot arise. In judiciary practice there was a number of the criteria used by vessels at the decision of a question about «in advance adjusted losses». Accurately enough they have been formulated by English lawyer E.Dzhenksom. « »It defined the penalty as the sum of the conditional debt, having for an object to warn the party against breach of contract. The criteria concerning the decision of the given question, are reduced to the following:

1. The sum of money with which payment of the party have agreed on a case of breach of contract, is the penalty if it is unreasonable and it is not necessary in any conformity with the sum of the largest losses which, as far as possible to expect, could be recognised by a consequence of breach of contract. Here there can be questions concerning, whether extend the given rule also on return of already paid sum.

2. There is an established rule according to which paid in a kind of"deposit"the sum is a guarantee of execution of a contract by the person who has brought the deposit, and cannot be obtained on demand, if it does not execute contractual obligations. C other party, the condition about loss of large advance payment on account of a purchase price can be nullified as establishing the penalty.

3. As other does not follow from interpretation and circumstances of the contract, the sum of payment provided under the contract as compensation on a case of approach any one or several events, can cause a serious damage, and others (or one of them) can cause only insignificant damage.

4. Penalty presence should be recognised, if infringement consists only in debts non-payment, and the adjusted sum exceeds the sum of the debts which are coming under to payment.

5. There are no obstacles to that at the coordination of the sum which are really being a tentative estimation of a damage, infringement consequences were such that exact preliminary definition of a damage was almost impossible.

it is necessary to consider, that all these rules are no more than the assumption of intention of the parties. So, they can be confuted proofs about the opposite intention following from consideration of the contract as a whole.

when agreed the parties the sum admits the penalty, as the penalty it does not come under to collecting. But in this case the dissatisfied party

can collect compensation of the valid losses which it has incurred as a result of breach of contract by other party, even in the event that compensation it will exceed the sum of the agreed penalty.

the American right and judiciary practice as a whole follow the same criteria in a question on the adjusted sums and penalties, as the English right though there are also some features. So, the great value is given to criterion according to which the sum reserved in the contract admits «in advance adjusted losses» and has Validity if it is reasonable, i.e. it is proportional to a prospective damage.

the resulted approach has received reflexion in ETK the USA [63] . Article 2-718 establishes, that the losses which are coming under to compensation in case of breach of contract by any of the parties, can be defined in the agreement, however only in size as which it is possible to consider reasonable in connection with the prospective or valid damage caused by breach of contract, difficulties of proving of a damage and inconveniences or impossibility of reception of adequate protection of the rights a different way. The condition defining unreasonably high size of in advance estimated losses, admits legally insignificant as a penal condition.

thus, we see, that in world history of law the penalty as the way of maintenance of obligations and a responsibility measure, takes a special place. There were two approaches to regulation of obligations of the penalty: Retaliatory (penal sum) and estimated (the penalty is in advance liquidated damages). For Russian right the approach to the penalty as to punishment for "malfunction" of the debtor that is obviously traced in regulation of commercial relations was historically developed. Reforms of the Russian statehood and loan from the German, French and English-Saxon right have led to that to on - chalu XX century in the Russian right penalty function has appeared dual, penal and estimated simultaneously.

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A source: Konovalov Alexander Ivanovich. the PENALTY In the COMMERCIAL TURN. The dissertation on competition of a scientific degree of the master of laws. St.-Petersburg 2003. 2003

More on topic 1.3. History of the legislation on the penalty, the foreign LEGISLATION On the PENALTY:

  2. the Chapter II. The Punishments under criminal law applied to the minors under the legislation of foreign countries: history and the present
  3. Chapter 2. Criminally-right protection properties in history of Russia, Kyrgyzstan and the modern legislation of foreign countries
  4. 1.2. The penalty maintenance
  5. §4. Enterprise definition in the Russian legislation of the Post-Soviet period and in the legislation of foreign countries
  6. the purpose and penalty functions
  7. 1.1. Concept of the penalty
  8. § 2. A parity obespechitelnogo payment and the penalty
  9. 2.3. Compensatory function of the penalty in a commercial turn
  10. Concept of the penalty
  11. Ways of perfection of application of rules of law about the penalty
  12. principles of legal regulation of the penalty
  13. charge of the judicial penalty (astrent)
  14. a penalty parity (as way of protection) with losses and percent for using another's money resources