Decision No. 2707/2026 of the Single-Member Court of Appeal of Athens was issued, dismissing on the merits the appeal brought by the purchaser of a horizontal property against our client, a construction company, and its general partners, concerning claims for payment of a contractual penalty and damages due to an alleged delay in the delivery of a horizontal property and the common areas of an apartment building.
In particular, in the case at issue, the appellant claimed that the construction company had culpably delayed the delivery of the horizontal property and the common/co-owned areas of the apartment building, seeking, on the one hand, payment of the agreed contractual penalty and, on the other hand, additional damages for rent which, according to his allegations, he was obliged to pay as a result of the delay.
However, the Court dismissed the appeal, effectively upholding the judgment of the court of first instance. It held, first, that the damages claim had been raised in an indefinite manner, since the necessary factual circumstances had not been set out, from which it could be established either that the alleged loss was not covered by the agreed contractual penalty or that there was a specific agreement providing for the cumulative claim of both the contractual penalty and full damages.
Second, the Court held that the delay in delivery was not attributable to any fault on the part of the construction company, but rather to the procedure for the regularisation of semi-open-air spaces, which was carried out with the consent and in the interest of all co-owners, including the appellant.
The decision is of particular interest because it reiterates the fundamental distinction between a contractual penalty and damages. According to the Court, in the absence of a clear contractual provision to the contrary, the creditor may not claim cumulatively both the contractual penalty and full damages for the same delay. The contractual penalty operates as an agreed sanction for non-proper or non-timely performance, whereas a cumulative claim for damages presupposes either loss not covered by the contractual penalty or a specific contractual agreement granting such a right.
Specifically, the Court held that “he may not, however, claim cumulatively both the penalty and full damages, unless there is a relevant agreement between the parties”, and further that a cumulative claim for a contractual penalty and loss may be founded “only if such a right is granted to him by a clear term of the contract”.
On the basis of this reasoning, it was held that the appellant’s damages claim was indefinite, since it did not contain the necessary elements for establishing an independent claim beyond the contractual penalty.
