Comment by Michael Mossy Christovich and Thomas J. R. Stadnik
The penal clause in the civilian legal tradition is an auxiliary obligation entered into for the purpose of enforcing the performance of a primary obligation. The Louisiana law relating to penal clauses is in a serious state of disarray due to the disparity between the Civil Code and the jurisprudence. The Code is framed in the stricti juris approach common to both its French and Spanish parents, which admits of judicial modification only where there has been partial performance. The courts on the other hand have equated the penal clause with the common law penalty, albeit unconvincingly, and thus have been able to utilize the common law approach to liquidated damages and penalties in cases involving penal clauses.
This comment reviews the history of judicial modification of penal clauses in the civilian tradition, in the common law tradition, and in Louisiana. In addition it surveys the current law of many civilian and mixed jurisdictions and documents the recent trend toward adopting the more equitable civilian theory which permits judicial modification of penal clauses.
About the Author
Michael Mossy Christovich; Thomas J. R. Stadnik. Senior Student, Loyola University School of Law (New Orleans).
Citation
53 Tul. L. Rev. 523 (1979)