The Role of Judicial Discretion in Commercial Disputes: Penalty Clause Issues

Comparative legal perspectives on voluntary restraints: Analyzing the adaptation of preventive conditions on property rights

“…This is because every act of money outside the circle of dealing is rejected as absolutely null and void. This logical sequence is not consistent with what has been determined by French and Egyptian jurisprudence, as we will come to the conclusion that absolute invalidity is not appropriate as a penalty for violating the condition preventing action [ 3 , 41 ].…”

“…This indicates limiting the owner's authority to act in order to achieve his legitimate interest, as if he were a minor and it was stipulated that he not act in order to protect him from his lack of experience and incomplete maturity. Conversely, if we take the second meaning, which is that the idea of assignment in kind means that it is the taking out of the money that is prevented being acted upon from the dealing department [ 37 ], this money becomes unfit to be a subject of financial rights, i.e., as some say, money is printed in kind, which is that it is inalienable [ 3 , 23 ].…”

“…It seems that the existence of these legal restrictions is definite from both a legal and jurisprudential standpoint. But what sparked the dispute or disagreement are the conditions that are agreed upon that prevent the owner from acting, whether they are contained in a contract binding on both sides [ 2 ], as is the case with a sale, or they are contained in an act that finds its basis in an individual will, as is the case with a will [ 3 ].…”