Notes on the penalty clause after the overcoming of the thesis of the dual function

Abstract

The article aims to investigate how some of the main controversies about the normative regime of the penalty clause – in particular its equitable reduction, the irrevocability by the creditor and the treatment of the clause in reinforcement of a special obligation –, as well as the distinction of figures with similar structures (such as the indemnity clause and the penitential fine), are still reflections of the so-called dual-function thesis. This theoretical premise, in which the penalty clause would simultaneously play a coercive and indemnifying role, was widespread in Brazilian doctrine and, although it is widely criticized today, it still generates harmful effects on the adequate systematization of the penalty clause and insecurity in the application of the rules that govern it