Penalty Clauses in the 2023 Revised Proposal for the Modernization of Obligations and Contracts

Abstract

The penalty clause, as a fundamental figure in the law of obligations, has undergone a process of revision and modernization in the recent Proposal for the Reform and Modernization of the Civil Code of 2023 (PRMOC 2023). This paper focuses on the analysis of this reform, examining its most relevant innovations and its impact on the classical structure of the penalty clause, as well as on the balance between the autonomy of will and judicial control.

The study begins with a conceptual and systematic approach to the penalty clause in Spanish civil law, defining its nature and distinguishing it from related figures such as earnest money agreements. It then addresses the changes introduced by the PRMOC 2023, analysing the new regulation in terms of its scope of application, its punitive and compensatory functions, and the possibility of combining it with other contractual remedies. The study also examines the criteria for judicial moderation, its relationship with the general principles of contract law, and the way the reform redefines the limits of judicial intervention in matters of penalty clauses.

Finally, a critical reflection is offered on the practical implications of the reform, contrasting it with the traditional legal framework and assessing its effects on legal certainty and the predictability of contractual relationships. In this way, the present study not only aims to clarify the new regime of the penalty clause under PRMOC 2023 but also to offer a perspective that allows for understanding its scope, challenges, and potential impact on contractual practice.