THE DIFFERENCE BETWEEN PENITENTIAL FINE AND PENITENTIAL DEPOSIT

The penitential penalty, ex art. 1373 paragraph 3 of the Civil Code, is a figure very similar to the penitential deposit, as both provide for the payment of a sum of money in the event that one of the contracting parties exercises the right of withdrawal.

In fact, the so-called penitential penalty serves, just like the penitential deposit referred to in art. 1386 of the Civil Code, solely to compensate the other party in the event that the right of withdrawal is exercised by the other contracting party.

It follows that in the presence of one of the aforementioned institutions - unlike what happens in the case of a confirmatory deposit or termination for breach - there is certainly no need to investigate the imputability of the withdrawal, and one must therefore simply acknowledge the exercise of this potestative right by the withdrawing party and order them to pay the amount requested by the other party.

Well then, after having analyzed – albeit briefly – the elements in common between the penitential penalty and the penitential deposit, it is necessary to highlight the aspect in which they differ from each other.

The only distinguishing element is undoubtedly the moment when payment of the amount due is required in order to legitimately exercise the contractual withdrawal.

In fact, while for the penitential deposit the payment of said amount is made in advance of the exercise of withdrawal, as regards the penitential penalty the aforementioned payment must be made at the same time as the declaration of withdrawal.

Consequently, with reference to the penitential penalty, the declaration of withdrawal is not in itself sufficient to dissolve the contract, as this effect is produced exclusively through the actual payment of the agreed sum.

 

Avv. Laura Mingrino

www.studiolegalemingrino.it