A Compared Study between the Agreement of Deposit and the Penalty Clause

The earnest payment provides a supplementary guarantee, on one hand, but leads to a disruption, on the other hand. A creditor that receives and owns the earnest payment avails a more solid guarantee. As soon as the suspension of performing the obligation takes place, which is followed by the procedure of giving a formal notice, the creditor is exempted from the duty to establish the fault of the debtor and the damage, as well. Then, he/she might choose to obtain the yields from an earnest payment, the latter is deemed as becoming part of his/her assets, independently of the state of bankruptcy of the debtor. Therefore, the creditor that has secured his/her liability through a penalty clause is in a better position than the creditor that has received the earnest payment. The former remains a creditor depending on a simple contract and is faced with the risk of being concurrent liable of his/her debtor’s bankruptcy.The latter – the creditor that has obtained an earnest payment is in a worst position, as he/she is under an obligation to remit to his/her counterpart an immovable good, that is subject to a right of private propriety. Apart of the risk of his/her debtor’s bankruptcy, risk that is being assumed as for the creditor having a penalty clause as well, the good of the creditor with an earnest payment is made unavailable, so that person is not able to profit from the benefits of its use or of its patrimonial benefits resulting from the goods movement in a market economy.