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=U3= Sec336 -- Section 336 Interpretation of earnest
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=S=> BGB 336. 1 Where something is given as an earnest when a contract is entered into , this is deemed to be a sign that the contract has been entered into .
=S=> BGB 336. 2 The earnest is not deemed , in case of doubt , to be forfeit money .
=U3= Sec337 -- Section 337 Crediting or return of the earnest
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=S=> BGB 337. 1 The earnest is , in case of doubt , to be credited against the performance owed by the giver of the earnest , or , where this cannot occur , is to be returned when the contract is performed .
=S=> BGB 337. 2 If the contract is cancelled , the earnest must be returned .
=U3= Sec338 -- Section 338 Earnest in case of impossibility of performance for which giver of earnest is responsible
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=S=> BGB 338 If the performance owed by the giver of the earnest becomes impossible due to a circumstance for which he is responsible , or if the giver of the earnest is responsible for the cancellation of the contract entered into , the receiver of the earnest may retain it . If the receiver demands damages for non-performance , the earnest must , in case of doubt , be credited against it , or if this cannot occur , must be returned when damages are paid .
=U3= Sec339 -- Section 339 Payability of contractual penalty
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=S=> BGB 339 Where the obligor promises the obligee , in the event that he fails to perform his obligation or fails to do so properly , payment of an amount of money as a penalty , the penalty is payable if he is in default . If the performance owed consists in forbearance , the penalty is payable on breach .
=U3= Sec340 -- Section 340 Promise to pay a penalty for nonperformance
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=S=> BGB 340. 1 If the obligor has promised the penalty in the event that he fails to perform his obligation , the obligee may demand the penalty that is payable in lieu of fulfilment . If the obligee declares to the obligor that he is demanding the penalty , the claim to performance is excluded .
=S=> BGB 340. 2 If the obligee is entitled to a claim to damages for nonperformance , he may demand the penalty payable as the minimum amount of the damage . Assertion of additional damage is not excluded .
=U3= Sec341 -- Section 341 Promise of a penalty for improper performance
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=S=> BGB 341. 1 If the obligor has promised the penalty in the event that he fails to perform his obligation properly , including without limitation performance at the specified time , the obligee may demand the payable penalty in addition to performance .
=S=> BGB 341. 2 If the obligee has a claim to damages for the improper performance , the provisions of section 340 ( 2 ) apply .
=S=> BGB 341. 3 If the obligee accepts performance , he may demand the penalty only if he reserved the right to do so on acceptance .
=U3= Sec342 -- Section 342 Alternatives to monetary penalty
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=S=> BGB 342 If , as penalty , performance other than the payment of a sum of money is promised , the provisions of sections 339 to 341 apply ; the claim to damages is excluded if the obligee demands the penalty .
=U3= Sec343 -- Section 343 Reduction of the penalty
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=S=> BGB 343. 1 If a payable penalty is disproportionately high , it may on the application of the obligor be reduced to a reasonable amount by judicial decision . In judging the appropriateness , every legitimate interest of the obligee , not merely his financial interest , must be taken into account . Once the penalty is paid , reduction is excluded .
=S=> BGB 343. 2 The same also applies , except in the cases of sections 339 and 342 , if someone promises a penalty in the event that he undertakes or omits an action .
=U3= Sec344 -- Section 344 Ineffective promise of a penalty
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=S=> BGB 344 If the law declares that the promise of an act of performance is ineffective , then the agreement of a penalty made for the event of failure to fulfil the promise is likewise ineffective , even if the parties knew of the ineffectiveness of the promise .
=U3= Sec345 -- Section 345 Burden of proof
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=S=> BGB 345 If the obligor contests the payability of the penalty because he has performed his obligation , he must prove performance , unless the performance owed consisted in forbearance .
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