Penalty (Art. 158 OR)

Definition: A penalty is a payment made by the debtor to the creditor on conclusion of the contract, with the understanding that the giver may withdraw from the contract without giving a reason in return for the return of the amount paid and the recipient may withdraw from the contract without giving a reason in return for twice the amount. If the contract is performed, the amount shall be set off against the claim. The reugeld weakens the contractual commitment. –> Facilitation of the release from the legally valid contract. In other words, the agreement of a reprimand enables both parties to withdraw from the contract arbitrarily.

Shape: In principle, there are no special formal requirements for the justification of a reprimand. However, if legal formal requirements are applicable to the main transaction (e.g. real estate purchase contracts require public notarisation in accordance with Art. 216 para. 1 OR to be valid), these requirements also apply to the agreement of a reprimand. In the case of an agreement on a fee for remorse, any further compensation for damages arising from withdrawal from the contract is presumably excluded and a possibility of reduction by analogy with Art. 163 para. 3 is not applicable.

Differentiation from the Wandelpön: Both the Reugeld and the Wandelpön aim at facilitating a possible withdrawal from the contract. However, the reugeld is already paid when the contract is concluded, whereas the Wandelpön is only payable on the occasion of the withdrawal. In contrast to the convertible penalty, both parties have the right to withdraw from the contract.