PENAL. That which may be punished; that which inflicts a punishment.
PENAL STATUTES. Those which inflict a penalty for the violation of some of their provisions.
2.
It is a rule of law that such statutes must be construed strictly. 1
Bl. Com. 88; Esp. on Pen. Actions, 1; Bosc. on Conv.; Cro. Jac. 415; 1
Com. Dig. 444; 5 Com. Dig. 360; 1 Kent, Com. 467. They cannot,
therefore, be extended by their spirit or equity to other offences than
those clearly described and provided for. Paine, R. 32; 6 Cranch, 171.
PENALTY,
contr. A clause in an agreement, by which the obligor agrees to pay a
certain-sum of money, if he shall fail to fulfil the contract contained
in another clause of the same agreement.
2.
A penal clause in an agreement supposes two obligations, one of which
is the primitive or principal; and the other, is, conditional or
accessory.
3.
The penal obligation differs from an alternative obligation, for this
is but one in its essence; while a penalty always includes two distinct
engagements, and, when the first is fulfilled, the second is void. When a
breach has taken place, the obligee has his option to require the
fulfilment of the first obligation, or' the payment of the penalty, in
those cases which cannot be relieved in equity, when the penalty is
considered as liquidated damages. Dalloz, Dict. mots Obligation avec
clause penale.
4.
It is difficult, in many cases, to distinguish between a penalty and
liquidated damages. In general, the courts have inclined to consider the
sum reserved by such agreement to be a penalty, rather than as
stipulated damages. (q. v.)
5.
The sum will be considered as a penalty, and not as liquidated damages,
in the following cases: 1. When the parties to the agreement have
expressly declared the sum to be a penalty, and no other intent is to be
collected from the instrument. 2 Bos. & P. 346; 1 H. Bl. 227; 1
Pick. 45 1; 4 Pick. 179; 7 Wheat. 14; 3 John. Cases, 297. 2. When from
the form of the instrument, as in the case of a money bond, it is
sufficiently clear a penalty was intended.
3.
When it is doubtful whether the sum was intended as a penalty or not,
and a certain damage or debt is made payable on the face of the
instrument. 2 B. & P. 350; 3 C. & P. 240. 4. When the agreement
was evidently made for the attainment of another object, to which the
sum, specified is wholly collateral, 11 Mass. 76; 15 Mass. 488; 1 Bro.
C. C. 418, 419. 5. When the agreement contains several matters, of
different degrees of importance, and yet the sum mentioned is payable
for the breach of any, even the least. 6 Bing. 141; 5 Bing. N. C. 390; 7
Scott, 364. 6. When the contract is not under seal, and the damages may
be ascertained and estimated; and this though the parties have
expressly declared the sum to be as liquidated damages. 2B. & Ald.
704; 6 B. & C. 216; 4 Dall. 150; 5 Cowen, 144. See 2 Greenl. Ev.
258. 1 Holt N. P. C. 43 1 Bing. R. 302; S. C. 8 Moore, 244; 4 Burr.
2229.
6.
The penalty remains unaffected, although the condition may have been
partially performed; as in a case where the penalty was one thousand
dollars, and the condition was to pay an annuity of one hundred dollars,
which had been paid for ten years; the penalty was still valid. 5 Verm.
365.
7.
A distinction seems to be made in courts of equity between penalties
and forfeitures. In cases of forfeiture for the breach of any covenant
other than a covenant to pay rent, relief will not be granted in equity,
unless upon the ground of accident, fraud, mistake, or surprise, when
the breach is capable of compensation. Edin. on Inj. 22; 16 Ves. 403; S.
C. 18 Ves. 58 3 Ves. 692; 4 Bouv. List. n. 3915.
8.
By penalty is understood, also, the punishment inflicted by law for its
violation; the term is mostly applied to a pecuniary punishment. See 6
Pet. 404; 10 Wheat. 246; 1 Gall. R. 26; 2 Gall. R. 515; 1 Mason, R. 243;
3 John. Cas. 297: R. 451; 15 Mass. 488; 7 John. 72 4 Mass. 433; 8 Mass.
223; 8 Com. Dig. 846; 16 Vin. Ab. 301; 1 Vern. 83, n.; 1 Saund. 58, n.;
1 Swans. 318; 1 Wash. C. C. R. 1; 2 Wash. C. C. R. 323; Paine, C. C. R.
661; 7 Wheat. 13. See, generally, Bouv. Inst. Index, h. t.
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