Attach the clause to the actual obligation
§1336 ABGB deals with the contractual penalty for promises not performed, not properly performed or performed late. The statutory starting point is explicit that, absent a special agreement, the obliged person does not obtain the right to free themselves from performance by payment. [STRAFE]
So have it stated which obligation the clause is intended to secure. Does it concern a payment, a deadline or the non-execution of the entire purchase? Which specific event is supposed to trigger the amount? An isolated figure without its trigger does not help you assess your own obligation.
Amount and legal scope are different questions
The provision also regulates judicial mitigation where excessive amount is proven and contains rules on damages beyond that, including a special consumer rule. [STRAFE] That is not a promise that you could reduce any demanded sum at your own discretion or temporarily ignore the clause.
Contractual advice must examine effectiveness, scope and other rules relevant to the case on the basis of the entire agreement. This article neither replaces a clause review nor an assessment of particular company-law cases. Crucial for your preparation is not to count on a certain later reduction before you are bound.
Fictional case: An expected exit becomes an unresolved risk
A buyer wishes to make an offer although his specific financing is still open. A penalty clause names €12.000. He plans, if necessary, to pay that amount and thus be completely free. However, an express agreement on this remedy right he assumes has not yet been examined.
Rather than treating the figure as a risk cap, he presents the offer and the financing status to the adviser. He asks about the consequences if the financing does not materialise, and about the interaction with the clause. The exemplary amount is entirely fictional and not a recommendation for the level of a contractual penalty.
Relate dates to the same version
If purchase price, due date or other conditions change, have the penalty clause reviewed as well. A provision still referring to an old date should not remain unnoticed in the next version. Your own calendar does not confer validity on an amendment to the contract.
For the meeting have the complete draft and the affected annexes ready. Mark which performance you can already reliably commit to and which condition is still unresolved. The advice should explain an appropriate drafting; a half-sentence you added yourself is not a secured solution.
Do not admit liability spontaneously when a claim is made
If a contractual penalty is later demanded, secure the claim, the contract version and the actual sequence of events and obtain individual advice without delay. Nothing in this article implies a general right to refuse payment nor the recommendation to pay immediately for peace of mind.
Before the purchase your goal is simpler: you understand which obligation is being secured, which trigger is to be agreed and whether further claims or performance remain on the table. Only with that explanation can you consciously assess the risk of your binding commitment.