Imposición y tasación de la cláusula penal pecuniaria en los contratos estatales

Abstract

This paper seeks to determine the legal nature of the pecuniary penalty and contractual penalty clause in the current state contract system (Law 80/93, 1150/07 and 1474/11), to establish immediately afterwards, whether or not clauses exceptional and determine their effects on the Colombian contractual practice. The research was carried out, solves the question posed, stating that the pecuniary penalty clause and contractual penalty clauses constitute (not exceptional) common law, the covenant is not binding in the current contractual system and its unilateral imposition part of the public administration, as an exceptional power, even when the parties have agreed to the contract, is contrary to its nature, essence and purpose and therefore its imposition would violate the principle of legality and find affected object and void unlawful.