A redução equitativa da cláusula penal em caso de resolução do contrato com fundamento em incumprimento do locatário financeiro

Abstract

The leasing contract, due to its many advantages for the parties involved, is a widely used figure of prominence in our legal traffic. In this study, based on a brief analysis of the essential elements of this type of contract, we focus our attention on one of the penalty clauses frequently used in most of the contracts. In particular, we refer to the clause which states that, in the event of termination of the contract by the lessor on the grounds of default by the lessee, the amount corresponding to a certain percentage of the rentals due on the date of termination is due. In this regard, we address the forms of control of the penalty clause and, in particular, the control mechanism provided by Article 812 of the Civil Code, pointing out that which appears to be, currently, an extremely relevant factor in the consideration of the manifest excessiveness of the clause which, depending on the cases, will reveal an abusive exercise of the right to penalty by the lessor.

Date of Award	25 Jan 2021
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Agostinho Guedes (Supervisor)