non libératoires

14:19 Dec 2, 2019 

Adrian is incorrect about what's being discharged (or not). A pénalité libératoire is a penalty for breaching a contract; once you've paid it, you're discharged from further liability for that breach. A pénalité non-libératoire is the same EXCEPT that even after paying it , you can still be sued for damages caused by your breach.

IOW it's not about being discharged/exempted "from further performance" under the contract (as Adrian thought). It's about being discharged from any further liability for the particular breach that made you obligated to pay the penalty.

I've got this very term in a contract I'm translating now. Here's how it works: Contract says Seller has to deliver the goods by X date, and if delivery is late then Seller has to pay a penalty (let's say $1000). However, since the penalty is "non-libératoire" and the late delivery caused Buyer damages (Buyer didn't have the goods in time to fulfill a contract Buyer had with its customer, thus lost that contract, costing Buyer $10,000), Buyer gets the $1000 penalty AND ALSO can sue Seller for the $10,000.

If it were a pénalité libératoire, Buyer would get the $1000 but could not sue for the $10,000.