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Open Access Publications from the University of California

Moderación judicial de la cláusula penal en Derecho español


Unlike most of the European civil law systems (Germany, Austria, Belgium, France, Italy, Portugal and Switzerland), Spanish law only allows courts to reduce the sum stipulated by the parties in a penalty clause if the breach of contract has less entity than the one anticipated. Hence, the judicial review of penalty clauses on the grounds of equity is excluded. This paper aims to analyze whether this is the most desirable solution in terms of efficiency.

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