Funzione e struttura della penale contrattuale. Riflessioni a margine della riformulazione della penalty rule da parte della UK Supreme Court

The rule against penalties in English law has undergone a sub- stantial reformulation in the cases Cavendish and ParkingEye decided by the UK Supreme Court in 2015. In first place, this change, if considered in connection with the evolution of the law on clause pénale in the French system, calls for a new account of the relation- ship between common law and civil law as regards the law of penal- ties and liquidated damages and the legal relevance of the distinction between compensatory and deterrent function. In addition, the com- parative analysis of contractual penalties as a rational response to the limits of default compensatory remedies reveals the manifold fun- ctions of penalty clauses from an economic perspective and raises the problem of drawing a workable distinction between the terms of the contractual bargain and the scope of conventional remedies. This distinction offers insights for a coherent exercise of judicial control and also provides useful tools for a better comprehension of the Italian approach.