Sopimussakko ja sen käyttötarkoitukset Suomen sopimusoikeudessa – erityisesti painostusfunktiosta ja sen merkityksestä
Avainsanat:
sopimusoikeus, sopimussakko, sopimussakon sovitteluAbstrakti
Penalty clauses and their functions in Finnish contract law
Penalty clauses are frequently used in various kinds of commercial contract. They are particularly significant in situations where it is crucial for a contracting party that the other party fulfils its obligations. Using contractual penalties as incentives to perform can be especially important at the pre-contractual phase, as well as in long-term cooperation contracts, such as franchising. In such situations, the dynamic nature of the contractual relationship raises the need to manage risk by means of individually negotiated remedies — even more so considering that regular contractual damages are often an inadequate remedy.
This article aims to shed light on the different purposes or functions of penalty clauses. The focus is on how these functions, namely incentivisation (or prevention), compensation, limitation of liability, and dispute solving, are reflected in Finnish contract law. Unlike in many other jurisdictions, penalty clauses are widely accepted and enforceable in the Finnish legal system, and the incentive function and the idea of prevention are consistent with our system of contract law.
The article suggests that the underlying aims, purposes, and functions should be identified and considered as central elements when assessing penalty clauses. In particular, the incentive function should be respected in cases where the contracting parties’ individual aims are the primary reason for the incorporation of a penalty clause. In some situations, it is necessary to balance the effects of the clause. Nevertheless, one should refrain from balancing a clause by means of construction or adjustment when the parties have sought to protect justifiable interests – even if these interests concerned so-called ancillary duties or other than purely economic goals.
