Contractual penalty in continental private law: historico-methodological outline

The article deals with the origins of the problem of the penalty in modern civil law from the standpoint of socio-cultural and economic grounds. The study concludes that Roman law did not consider a penalty in the context of a security or penalty structure, and the corresponding problem generated primarily by the peculiarities of the glossators’ interpretations. The author argues thesis stating that this or that representation of this construction is not dogmatic, since such is only the understanding of the penalty as an abstract property obligation, and not as one or another legal means. The author comes to conclusion that in modern law, taking into account the economic characteristics of the market, the most relevant is the presentation of a penalty as liquidated damages, and therefore its security nature is declarative.