The New English Law on Penalty Clauses: An Italian Perspective

European Review of Private Law [ERPL], Vol. 25, pp. 227-240, 2017

Bocconi Legal Studies Research Paper No. 3201839

14 Pages Posted: 30 Jun 2019 Last revised: 7 Aug 2020

See all articles by Francesco Paolo Patti

Francesco Paolo Patti

Bocconi University - Department of Law; Bocconi University - Bocconi Law Department

Date Written: January 2, 2017

Abstract

The contribution aims to evaluate some problematic issues addressed by the UK Supreme Court decisions on penalty clauses, taking into account discussions among Italian scholars and rulings of Italian jurisprudence. The focus is put on the issue of whether the rule against penalties should be abrogated or extended, on the scope of application of the rule against penalties (i.e. if it is applicable to primary obligations), on the benchmark to assess whether the rule against penalties should be applied and, finally, on the interpretation of the expressions ‘imbalance in the parties rights’ and ‘contrary to the requirements of good faith’ established by the Unfair Terms Directive. In conclusion, in the light of the innovative judgment, an assessment of the relationship between contractual freedom and the need to protect the debtor of a penalty will be put forward.

Keywords: Comparative Law, Contract Law, Penalty Clauses, Liquidated Damages Clauses, Unfair Contract Terms, Cavendish Square Holdings BV v. Makdessi; ParkingEye Ltd v. Beavis

JEL Classification: K12, K22

Suggested Citation

Patti, Francesco Paolo, The New English Law on Penalty Clauses: An Italian Perspective (January 2, 2017). European Review of Private Law [ERPL], Vol. 25, pp. 227-240, 2017, Bocconi Legal Studies Research Paper No. 3201839, Available at SSRN: https://ssrn.com/abstract=3201839

Francesco Paolo Patti (Contact Author)

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

Bocconi University - Bocconi Law Department ( email )

Italy

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