Contractual balance in the context of the post-economic crisis and the new Romanian Civil Code
Vol. 13, Nr. 4/2014 , p755..773
Author(s):
Bazil Oglindă
Keywords:
Contractual imbalance, economic inequality of the contractual partners, uncommon clauses, lesion, crisis, theory of imprevision
Abstract:
The contractual imbalance is based on two different types of causes: either the inequality of the contractual partners (uncommon clauses and lesion), or the occurrence, throughout the performance of the contract, of certain events that make such performance extremely onerous, according to the terms initially assumed by the parties (theory of imprevision). The importance of the manner in which the Romanian legislator envisaged, through flexible legal provision, the re-balancing of a contract, which is imbalanced from its creation or which becomes imbalanced during its duration, , represented our essential concern in this study, which sought to present actual legal institutions, which will have a significant practical impact in the following years. Imprevision represents a legal institution which may arise in a situation of an economic crisis, as the one Romania also experienced, alongside with other European states. On the other hand, the inequality between the contractual partners in the business environment caused the Romanian legislator to adopt flexible regulations, such as those regarding the uncommon clauses. By means of this institution, the legislator imposes certain conditions, which the consent of the weaker party must observe, when issued in respect of such clauses. Lesion, which is regulated for the first time in case of persons of age as a defect affecting the consent, subject to the distinctions we performed, has a practical importance, especially when it has for premise a contractual imbalance based on the economic inequality of the parties.
Download:
http://online-cig.ase.ro/jcig/art/13_4_8.pdf
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