Comment to Article 294. The form of the agreement on the penalty of the Civil Code of the Republic of Kazakhstan
The penalty agreement must be made in writing, regardless of the form of the main obligation.
Failure to comply with the written form will invalidate the penalty agreement.
The commented article refers only to the contractual penalty, since the legal penalty is applied regardless of the discretion of the parties and their agreement.
The requirement for a written penalty agreement is a development of the provisions of subparagraph 3 of paragraph 1 of Article 152 of the Civil Code, which provides for the possibility of establishing a mandatory written form of the transaction (see commentary to Article 152 of the Civil Code).
The written form of a penalty agreement, by virtue of a direct indication of a legislative act, is mandatory under pain of invalidity, even in cases where the penalty provides for an obligation arising from an oral transaction.
The consequence of non-compliance with the simple written form is the invalidity of the penalty agreement, which follows from Clause 2 of Article 153 of the Civil Code, which provides for the possibility of establishing such consequences of non-compliance with the required simple written form of the transaction as its invalidity in cases explicitly specified in legislative acts (see commentary to Article 153 of the Civil Code).
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
