The Rules Regulating the Penal Clause and its Application Controls in Palestinian Legislation: A Comparative Study
Dr. Mahmoud Abdel Mohsen Salama
Assistant Professor of Civil Law
Private Law Dept., Faculty of Law, Arab American University, Jenin, Palestine
Mr. Ibrahim Khaled Abd Yahya
Lecturer
Private Law Dept., Faculty of Law, Arab American University, Jenin, Palestine
Abstract:
This research article deals with the issue of rooting the existence of the penalty clause within the scope of the Journal of Judicial Judgments in light of its silence about its regulation, based on jurisprudence rules and general texts, with an attempt to root in the possibility of assuming damage in a way that cannot be denied within the scope of the journal, contrary to the prevailing trend of limiting the role of the penal clause in transferring the burden of denying or exaggerating the damage to let it fall on the debtor›s responsibility. The research also seeks to clarify the legal bases that grant the judiciary the authority to amend the penal clause within the scope of the journal, and to analyze the Palestinian jurisprudence that did not settle on a single position on the mentioned penal clause and its amendment.
The research also sought to clarify the preference of the modified jurisprudence in the condition according to restrictive conditions over other jurisprudence, in accordance with the doctrine of the Palestinian civil law in force in Gaza, as it maintains the threatening nature of the penal clause by adopting the criterion of “proportionality” between compensation and damage, and not “equality” adopted according to the magazine, in order to serve the philosophy of the penalty clause in combining the compensatory and threatening nature together.
Key words: agreed compensation, damage, judge›s authority to amend, Journal of Judicial Judgments, presumption of damage, Palestinian judiciary.