
A contractual penalty is one of the most commonly used additional contractual reservations, including in contracts concluded under public procurement procedures. The purpose of the study is to analyse the provisions of the Public Procurement Law regulating contractual penalties in the context of the Civil Code regulations. It should be noted in particular that the Supreme Court held that a contractual penalty for non-payment or late payment to a subcontractor constitutes a failure to perform a monetary obligation, and therefore these provisions are lex specialis in relation to Articles 483 and 484 of the Civil Code when it comes to the possibility of stipulating contractual penalties in connection with non-performance or improper performance of a monetary obligation. Such a view is not justified, as this penalty is valid in the light of Article 483 § 1 of the Civil Code – without the need to argue that this is an exception to a provision of a mandatory nature. At the same time, the introduction of the obligation to specify an upper limit for contractual penalties in public procurement contracts should be viewed positively. This type of regulation eliminates the problem of perpetual obligations and allows all inter- ested parties to assess the potential risk associated with non-performance or improper performance of an obligation.
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