La existencia de la cláusula penal, por la inclusión obligatoria de multas en los contratos regidos por la Ley Orgánica del Sistema Nacional de Contratación Pública

Abstract

This work provides legal underpinning to the need to amend the Law on the National System of Public Procurement, in order to situate and define the penalty clause appropriately, with fines provided for in the Act, as a guarantee of compliance with the deadlines in contracts regarding the obligations assumed therein, to be included in Chapter III of this regulation that refers to a guarantees scheme. The proposed topic and its context involved the use of basic civil law concepts, particularly the theory of obligations and contracts; as well as the development of the theories listed in the establishment of contractual obligations in the National System of Public Procurement. After establishing sureties as ancillary obligations, a theoretical framework was developed in their regard, including penalty clauses and the relationship of all of these concepts to the Ecuadorian National Procurement System. In this manner, a solution was found to the problem of the matter’s inappropriate treatment and location in the Statutory Law of the National System of Public Procurement.