Genuine conventional penalty clauses

It will not come as a surprise that it is the genuine (or accessory) penalty clause^[538] that the non-genuine conventional penalty is distinguished from. As § 339 BGB puts it: "If the debtor promises the creditor the payment of a sum of money as a penalty in case he does not perform his obligation or does not perform it in the proper manner...." Here, the penalty secures (proper) performance of what is already owed.

Hence, as far as genuine penalty clauses are concerned, we are always dealing with a two-membered transaction. Often the obligation, to which a stipulatio poenae was added, had also been cast in the form of a stipulation. Then we have a double stipulation of the type: "Pam- philum dari spondes?" "Spondeo. " "Si Pamphilum non dederis, decern dari spondes?" "Spondeo." This would have been the most correct form, but if the promisor's answer was given only once ("Pamphilum dari spondes? Si non dederis, decern dari spondes?" "Spondeo."), that was acceptable too.^[539] A stipulatio poenae could, however, also be attached to other obligations, for instance to a contract of sale.^[540] ^{^[541] One problem, in particular, is raised by the specific structure of this type of stipulatio poenae: what is the relationship between the obligation to give Pamphilus and the obligation to pay one hundred, once the penalty of centum has become exactable?~^y Three different solutions are possible:^[542] the two obligations can be cumulatively, alternatively or successively linked, i.e. the plaintiff can be allowed to claim both Pamphilus and centum, or he can have the option of choosing either the one or the other, or he can be confined to claiming only centum. As far as the double stipulations are concerned, the following fragment is of particular interest:
"Sed si navcm fieri stipulates sum et, si non feceris, centum, vidcndum, utrum duae stipulationes sint, pura et condicionalis, et existens sequcntis condicio non tollat priorem? an vero transferal in se et quasi novatio prioris fiat? quod magis verum est."¹¹
The problem seems to have been controversial.
While an older opinion has probably advocated elective concurrence (that is, the regime of alternativity),^[543] ^{^[544] Paulus favoured successivity. Up to the time when centum was exactable, the plaintiff could sue only on the first obligation (here: a facere obligation, namely to build a ship); afterwards, only on the second. When the penalty had fallen due, the binding force of the first obligation ceased to exist: the second obligation absorbed the first one in a way which was not dissimilar to a novatio.^[545] With this decision, Paulus emphasized the compensatory function of the penalty clause:^[546] the underlying policy consideration seems to be that the creditor must be held bound by whatever preestimate of his potential damages he made in fixing the quantum of the penalty. If the penalty then turned out not to cover his interest, he should not be able to revert to a claim for damages on the first stipulation.^[547] The modern Swiss and German codes have decided differently:^[548] by introducing a penalty clause into the contract, the creditor certainly wanted only to strengthen his position; therefore, he should still be allowed to fall back on his primary action for damages where the penalty has failed to provide sufficient protection. The forfeited penalty thus represents the minimum amount of the damage; but then could the creditor not have stipulated a higher penalty in the first place? Also, he could have excluded this regime of successivity of actions by specifically asking for cumulative or elective concurrence of remedies.^[549] However, § 340 II BGB and art. 161 II OR, in turn, also go back to Roman law; they are based on lui. D. 19, 1, 28, the key fragment dealing with the concurrence of actions arising from bonae fidei contracts and penal stipulations that had been attached to them.
"Praedia mihi vendidisti et convenit, ut aliquid facerem: quod si non fecissem, poenam promisi.
respondit: venditor antequam poenam ex stipulatu petat, ex vendito agere potest: si consecutus fuerit, quantum poenae nomine stipulatus esset, agentem ex stipulatu doti mali exceptio summovebit: si ex stipulatu poenam consecutus fueris, ipso iure ex vendito agere non poteris nisi in id, quod pluris eius intcrfuerit id fieri." ⁸
Some tracts of land have been sold; as part of the agreement the purchaser has undertaken not only to pay the purchase price, but also "to do something", for example to repair the vendor's house.^[550] A stipulatio poenae provides for the possibility of his failure to do this job. Which actions does the vendor have, once the penalty is exactable? According to lulianus, he is not confined to one based upon the stipulatio poenae, but can still avail himself of the actio venditi. In other words, he may choose which action he wants to use, but he cannot cumulate the two. If the vendor proceeds under the actio venditi, he cannot afterwards sue for the penalty; that second claim can then be countered with an exceptio doli. Where, on the other hand, he claims the penalty, he cannot sue for the same sum with the actio venditi. To prevent him from doing so (that is, to bar the actio venditi), the purchaser does not even have to plead an exceptio; the exceptio doli is inherent in all bonae fidei indicia.^[551] What lulianus advocates, in this instance, is basically the principle of alternativity of remedies. But it is qualified in that the second claim is barred only up to the amount which the creditor (in our case, the vendor) has been able to recover in whichever action he brought first. The actual damages might exceed the sum fixed as a penalty. Then the actio venditi was still available to recover this additional amount. On the other hand, the penalty might have been beyond whatever damages had been suffered. If in this instance the vendor chose to use the actio venditi first, he was still able to bring a supplementary claim on the basis of the stipulatio poenae. The condictio was barred only up to the amount that had already been recovered, as can be deduced from the words "quantum poenae nomine stipulatus esset". Hence Roman lawyers do not seem to have stressed the purely compensatory side of penalty clauses to the same extent as in the case of double stipulations. Contracts bonae fidei gave rise to a whole range of duties, and the argument that the penalty could be treated as a genuine and binding pre-estimate of whatever damage might arise as a result of failure on the part of the debtor to comply with them did not really commend itself under these circumstances. Similarly, any parallel to novatio would have been rather far-fetched, especially in cases such as the one discussed by lulianus, where the penalty served to secure only part of the contract of sale.^[552]
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Genuine conventional penalty clauses

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