LIQUIDATED DAMAGES AND THEIR RELATIONSHIP TO THE PENALTY

Authors

  • Venera Konussova
  • Kamal Sabirov
  • Ayana Beken

Keywords:

penalty, liquidated damages, civil liability, fine

Abstract

Today, the question of the relationship between penalties and liquidated damages is debatable in the world of civil law science. The concept of liquidated damages is not regulated in the legislation of the Republic of Kazakhstan. Penalty, unlike liquidated damages, can also perform a punitive function. In this regard, some authors identify the liquidated damages with an exceptional penalty. The problem is that the courts qualify the liquidated damages as a penalty only in cases when they formally correspond to the types of penalties (penalty or fine). However, in cases where the liquidated damages do not fit into the legal construction of the penalty, the court may qualify the relevant condition of the contract as classical damages. And this, in turn, generates the risk of not claiming damages for reasons for the incompleteness of the composition.

The problematic issues of the definition of the concept of liquidated damages, their relationship to the penalty and the possibility of introducing this legal construction into the civil legislation of the Republic of Kazakhstan are revealed in this article. However, an attempt was made in this article to provide a full description of the penalty as well as to give the most complete analysis from the standpoint of theory and practice. During the study of the liquidated damages institute there are given opinions of reputable civilists, along with that particular attention is paid to English practice.

The article is recommended for lawyers, scientists, practitioners, people interested in the implementation of English law in the legislation of the Republic of Kazakhstan.

 

 

Published

30.03.2019

How to Cite

Konussova В. Т., Sabirov Қ. Қ. ., & Beken А. Т. (2019). LIQUIDATED DAMAGES AND THEIR RELATIONSHIP TO THE PENALTY. Scientific and Legal Journal «Bulletin of the Institute of Legislation and Legal Information of the Republic of Kazakhstan», 1(55). Retrieved from https://vestnik.zqai.kz/index.php/vestnik/article/view/283