course 4 legal act
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CIVIL LEGAL ACT
The most accurate definition of a civil juridical act is an expression of
somebody's will made with the intention to bear, modify or cease a juridical
relationship.
Our law commonly uses this notion (act) with two different meanings:
1) Firstly, as we already defined it, as an expression of a person's will.
This is the negotium sense;
2) Secondly, this notion is used with the meaning of a written statement,
which is known as the instrumentum sense.
Civil code uses both of these meanings. For instance, Art.689 civ.c.
provides that "the acceptance of a succession can be expressed or implied". It is
expressed whenever the successor makes an act in an authentic form
(instrumentum sense) in order to acquire the inheritance, and it is implied
whenever he simply makes an act (negotium sense) which can be concluded
only by a person who has a successor quality.
CLASSIFICA TION OF JURIDICAL ACTS
There are different criteria to classify the civil acts as follows:
Unilateral and bilateral acts
A unilateral act is an act that involves the expression of a single person's
will. It means that, there is only one person expressing his intention to produce
juridical effects. It can be included in this category the will, the offer to contract,
the acceptance of a succession.
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On the contrary, a bilateral or multilateral act is an agreement between
two or more parties with distinguished interests. A bilateral/multilateral act is a
contract, a legally recognized promise or bargains made by two or more persons
and including all rights and duties resulting from their promises or bargains.
Examples of contracts include: contract of sale, contract of exchange, loan,
mandate, consignment, employment contract, etc.
The process by which the parties arrive at a bargain will vary widely
according to the circumstances. It is common to assume that it involves two
distinct steps: the first is an offer by one party and the second is an acceptance
by the other.
Moreover, contracts may be classified, in their turn, as unilateral. and
bilateral contracts.
Indeed, a contract may involve an exchange of promises in which two
parties agree that each of them will perform a certain obligation. The exchange of
a promise for a promise is known as a bilateral contract.
If there is no such exchange and only one part assumes obligations, the
contract is unilateral. For instance, in a loan contract, the loaner is the promisor,
being entitled to demand the loan, and the borrower is the promisee, being
obliged to give it back. We emphasize that, in this case, the contract involves two
will but only one part assumes obligations.
Acts made by onerous title and acts made by gratuitous title
The criterion of this distinction is the aim pursued by parties concluding
the act. An act made by onerous title is that act in which each party promises an
economic benefit to the other in exchange of another economic benefit. On the
contrary, an act made by gratuitous title is one in which one party promises to the
other an economic benefit without expecting, in exchange, any promise.
Although many of the unilateral contracts are made by gratuitous title
(e.g., the donation or the gratuitous mandate), there are some which may have
both gratuitous or onerous titles (e.g., the loan contract without or with interests).
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The acts made by onerous title subdivide into commutative and aleatory
acts. A commutative act is one in which the parties know, from the very moment
of concluding the act, which will be their mutual obligations (e.g., sale contract).
On the other hand, an aleatory act is an agreement wherein the performance of
one party depends on the occurrence of an uncertain event (alea).
In fact, when the contract is concluded the parties do not know the extent
of their obligations because their performance depends of the occurrence of an
uncertain and fortuitous event. Examples of such acts include life and fire
insurance contracts or life annuity contracts. Such agreements are enforceable
notwithstanding an uncertainty of terms at the time of their conclusion or an
undertaken risk clearly appears.
The acts made by gratuitous title are subdivided, in their turn, into grants
and acts of benevolence. A grant is a voluntary transfer of goods from a
patrimony to another. This transfer can be achieved either by a person to
another.
An act of benevolence is a favor made by a person to another without
decreasing the patrimony of the former (e.g., the gratuitous mandate).
Translative, constitutive and declarative act
The criterion of this classification is the effect of the act. Firstly, a
constitutive act is one that constitutes a right which does not previously exist. For
instance, the juridical institutions of mortgage or of usufruct are such constitutive
acs.
Secondly, a translative act is an act which transfers a pre-existing right.
The most juridical acts have this character (e.g., sale contract or exchange
contract).
Finally, a declarative act is one that consolidates a pre-existing subjective
right. For instance, the partition or the settlement are declarative acts. A
“partition" is a dissolution of the unity of a possession that exists between mutual
owners.
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Consensual, formal and real acts
A consensual act is an enforceable one with no formal conditions
requested. In our law, the rule is that the acts are concluded by parties' simple
.consent. Indeed, according to Art.969 civ.c. the most juridical acts are
enforceable by simple consent.
On the contrary, a formal act is enforceable only if there are observed
some additional formal conditions, other than the simple consent. The form
required for concluding such acts is, most frequently, a written settlement. For
instance, law requires a written form, and sometimes even an authentic form, for
concluding acts as donation, will, mortgage or farm contract.
A real act is one that can be concluded only by delivering the thing by the
transferor to the transferee. Therefore, the deliverance of the goods is requested
not only to perform the real act, but to conclude it as well. There are real acts
loan or deposit contracts, whereby the simple consent is not enough for the
validity of the transaction. Thus, the deliverance of the goods is required by law
for a valid conclusion of the act itself.
It should be mentioned that, the "delivery" is a voluntary transfer of title or
possession from one party to another, a legally recognized handing over of one's
possessory rights to another. When actual delivery is very cumbersome or
impossible, law finds a constructive delivery sufficient as regards the transfer of
the title. Thus, one may deliver the contents of a safety deposit box by handing
over to another the key thereto together with any necessary authorization. Such
action is the so-called "symbolic delivery".
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Acts with instantaneous execution and acts with successive execution
An act with an instantaneous execution (uno ictu) is one that involves a
single performance, meaning made at once (e.g., sale contract). Whereas an act
with successive execution involves multiple performance. It means that it is made
turns and turns about (e.g., life annuity contract, rent contract, etc.).
There are many differences between these categories of acts, but the
most important one is that the nullity of an act with an instantaneous execution
retroacts. It means that it goes into effect for the future (ex tunc) and for the past
(ex nunc) as well. By contrary, the nullity of an act with successive execution
operates to terminate the contract from that point forward and does not affect the
former validity of the contract.
Principal and accessory acts
A principal act is one independent of any other act, i.e., an act with
selfsufficient existence.
By contrary, an accessory act is one that depends on a principal act. For
instance, a mortgage depends on the loan contracted by the mortgagor. It cannot
continue after the time when the mortgagor performed his obligation to the
benefit of the encumbrancer. In this case, the rule is that the accessory act has
the same destiny as the principal one (accesorium sequitur principale).
Pure and simple acts and acts affected by modalities
A pure and simple act is one that does not contain a modality. There are
several acts that are incompatible with modalities, like marriage or adoption, but
most of them may be affected by the modalities.
A "modality" is' a future event that determines the existence or
performance of a juridical act. There are modalities the term, the condition and
the task, which will be later treated in this chapter. Certain acts are essentially
dependent upon a modality, e.g., the loan, that always involves a term, the
donation with a task or the insurance contract.
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Inter vivos acts and mortis causa acts
An inter vivos act (lifetime act) is that which produces its effects
unconditioned until the death of the promisor. That category includes all contracts
and the most of unilateral" acts.
A mortis causa act is one which produces its effects after the death of the
promisor. In other words, until then it has no effects. This is the case of the will,
whereby the person bequeaths during his life about his assets:
Named acts and unnamed acts
The named acts are the acts described and regulated by law. Their
conclusion and performance will be governed by the specific provision of law
(e.g., civil code regulates the sale contract in Art. 1294 - 1404, the donation in
Art. 813 - 840, the exchange contract in Art. 1405 -1409, etc.).
On the contrary, the unnamed acts are those created by the parties for
their specific interests. They are as legal as the named ones. Inasmuch as there
is not a specific provision in law, they are governed by the rules determined
according to the general principles of contract law. Sometimes an unnamed
contract may become a named one, when a special law, which describes and
regulates it, comes into force. It has happened recently with the sponsorship
contract, becoming a named act by coming into force of Law no. 32/1994.
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CONDITIONS OF VALIDITY
By conditions of validity of juridical acts we understand their elements of
enforceability. Thus, Art.948 civ.c., provides the main conditions for the validity of
juridical acts. These conditions are the following:
- the capacity of the parties to contract;
- a genuine assent of the promisor;
- a certain subject matter;
- a lawful consideration.
However, this legal provision has been criticized, on the ground of
vagueness and incompleteness. Thus, these conditions are really requested not
only for bilateral acts (contracts), but also for unilateral ones. Secondly, the
assent has to be genuine from both parties, the promisor and the promisee,
because it is unacceptable to enforce a contract despite the will of one of them.
Thirdly, the form is not included in the condition of validity, even if it is a
condition upon which the very existence of the act may depends.
Therefore, the juridical doctrine considers as conditions of validity of
juridical acts:
- the legal capacity of parties;
- the genuine assent of parties;
- the lawful subject matter;
- the lawful consideration;
- the proper legal form.
From a theoretic point of view, these conditions could be classified into: -
conditions of substance of the act (the capacity, the assent, the subject matter
and the consideration), and - conditions of form of the act.
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The capacity
To test the capacity of concluding a juridical act does not mean to see
whether a person's mind is impaired or unsound, and whether that person
understands all the terms of the act, but, it means, to see whether that person
has the ability to comprehend the nature of the transaction he or she is engaged
in and understand its consequences.
Essentially, any person unable to take care of his or her property for any
reason, including mental illness, advanced age, or disease is considered
incompetent. The capacity, which is a state of law (de jure) is distinguishable
from judgment, which is a state of fact (de facto).
Civil code provides, in Art. 949, that "any person is assumed to be able to
contract unless he is declared incapable by law". It means that without a court
determination of legal incompetence, the presumption of law is that a person has
the legal capacity to contract or to make a unilateral act. In this matter, the rule is
the capacity, and the lack of capacity is the exception. Therefore, any legal
provisions related to the absence of capacity cannot be extensively construed.
In company law, the issue is analyzed according to the rule provided by Decree
no. 31/1954, which prohibits in Art. 34 the ultra vires acts (meaning, the activities
of a corporation beyond the powers conferred upon it by its charter, or by the
statute under which it was created).
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The assent
The assent and the consideration constitute the juridical will of the parties.
The parties voluntarily and knowingly conclude the act as a result of their
intention. In our legal system, the juridical will of parties is governed by two
principles:
- The principle of freedom of juridical will of the parties. It means that the
parties of a civil act are free to conclude or not a certain act, to stipulate any
particular clauses, to determine the specific content of the act, and, in most
cases, to determine the form of the act. The parties' freedom to conclude any
juridical acts is limited by the compulsory rules of law and by the public policy.
- The principle of real will of the parties. According to this principle, if there
is any incongruence between the real intent of the parties and the expressed
clauses of the act, the former is the one which will be taken into account.
It should be mentioned that, in order to apply this principle, the proof of the real
intention of the parties is taken into account. Thus, if it is possible to determine
the real will of the parties, the act has to be construed upon the expressed words
used by parties.
It results there from that the validity of the act depends on the validity of
the juridical will of the parties. Indeed, in some cases, the elements required for a
valid and enforceable contract appear to be present but in reality they are not.
For example, if a store owner accepts a gang leader's offer to protect his property
from gang violence by agreeing to pay the gang $100 per month, the store owner
is not genuinely assenting to the terms of the act. Similarly, if a used-car
salesperson deceitfully states that a car has a rebuilt engine and has never been
in an accident, the buyer who relies on that information and signs a purchase
contract does not have a valid juridical will to conclude the act.
The assent externalizes the party's intent to conclude a juridical act. For
being the basis of a valid act, the assent has to fulfill several conditions, as
follows:
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*) It has to .exist. Any act concluded in the absence of the assent will be declared
null and void;
*) It has to be unambiguously externalized. It means to result from the words of
the parties, either orally or written expressed, or even derived from their actions.
While, usually, any reasonable means of communication are effective to
externalize a valid assent, several problems arise in case of silence. Does
silence have any juridical value?
Generally speaking, the assent cannot be implied, and in case of silence it
is considered that it is no assent. Mere inaction and silence are usually not I
regarded as manifestations of intention to agree over a contract. However, some
exceptions to this rule occur, depending on the subject matter of the act.
Firstly, law expressly provides, in some cases, that the silence of one of
the parties has to be considered an assent. For instance, Art.1437 civ.c
stipulates that the rent contract is considered restored in force if, after the term of
the contract has been fulfilled, the parties silently continue to perform it.
Secondly, the initial agreement between the parties may constitute the
basis for regarding silence as an assent.
Thirdly, certain conducts of the party may be assumed as expressing an
assent. For instance, if an heir conducts himself like an acceptant of an
inheritance, law considers that he has performed a tacit acceptance.
*) It has to be expressed by a person who is mentally competent to
conclude the act. In other words, the person is able to comprehend the nature of
the transaction he or she is engaged in and to understand its consequences.
*) It has to be expressed by a person who intents to engage himself in a
legal relationship.
*) It has to be definite and certain as the essential terms of the act are
concerned;
*) It has to be genuine. To be genuine, the assent must be conceded
voluntarily and knowingly by each of the parties, elsewhere there is no valid
contract between them.
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The lack of genuine assent may arise by the so-called "vices of consent"
or defects. Law considers as vices of consent the following:
a) the mistake/error;
b) the fraud;
c) the duress;
d) the injury.
a) The mistake (error) The error is generally defined as a state of mind which has not
accordance with the facts. It is an erroneous belief about the facts as they exist
at the time when the agreement is concluded. It should be mentioned that the
error is produced by the person himself. In order to vitiate the party's assent, the
error should be serious. In that case, the party is entitled to claim the cancellation
of the act.
There are three sorts of errors affecting the enforceability of the act:
*) fundamental error, which refers to the nature of the act (error in
negotium) or to the identity of the subject matter (error in corpore). For instance,
when one of the parties believes that the act is a donation, and the other one
believes that it is a sale. In this case, there is more than a lack of genuine assent,
there is no assent at all.
A similar case is when one party believes that he or she buys a car while
the other party believes that he or she sells a toy car. Therefore, the act is not
only avoidable, but it is null and void;
*) excusable error, which refers to the qualities of the subject matter of the
act (error in substantiam) or to the contracting person (error in personam). A
case of error in substantiam arises, for example, when the seller believes that the
subject matter of the contract is an upright piano, and the buyer believes that it is
a grand piano. This contract may be avoided on the ground of lack of genuine
assent.
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Another type of error is one concerning a person's identity. Thus,
generally, an act is avoidable for error in personam only if it is concluded intuitu
personae. These acts are concluded on the ground of one of the parties' qualities
If the offer or receives an acceptance from one whom he mistakenly
believes to be the addressee of the offer, the offeror may avoid the contract for
error in personam.
*) immaterial error, which refers to an contract. It doesn't confer to any of
the parties unenforceable.
From another point of view, an error could be bilateral or unilateral. A
mutual (bilateral) error means that both parties are misunderstood the same
matter. For example, a mutual error is where both parties understood that the
real agreement was what one party alleges it to be, but had unintentionally
prepared and executed one which did not express the true agreement.
A future distinction should be drawn up between an error about law and an
error about the facts. It should be mentioned that within our system of law, the
error about law is not accepted for pleading somebody's ignorance. This rule is
based on the fact that law is presumed to be known from the moment it is
published in the Official Monitor of Romania.
Thus, whenever somebody is fully cognizant of the facts and the
substance of his behavior, he cannot plead his ignorance regarding the legal
consequences of his conduct for justifying the rescission of the contract. By
contrary, in case of errors about the facts the party can claim the rescission of
the contract.
b) The fraud The fraud is the misrepresentation of a fact that is made with knowledge
and with intention to deceive the other party.
The fraud has the same essence as the error/mistake, meaning the
misrepresentation. But unlike the error/mistake, the fraud results from one .
contracting party action. Thus, the party who misrepresents the facts clearly
intends to do it and to deceive the second party, who, relying on the
misrepresentations, changes his or her legal position in concluding the contract.
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Sometimes, a misrepresentation of facts may be unintentional. It means
that there is no fraud, but the act is still avoidable, because it was concluded by
mistake.
In order to have a misrepresentation, law commonly requires either an
affirmative act or an express statement. Occasionally, silence may constitute a
misrepresentation of facts leading to fraud. The intention to deceive is expressed
by the party's intention to create a false impression. Since fraud requires this
intent, mere negligence or carelessness cannot constitute fraud.
From a structural point of view, the fraud has two main elements the
intentional one (which consists of the will to fraud the other party), and the
material one (which consists of the activities performed in order to lead the other
party into mistake).
Generally, mere failure to disclose information to the other party does not
constitute a fraud, because law does not impose a duty of disclosure.
There are, however, a number of exceptions to this rule. Suppose one
party knows certain material facts and knows the other party is not aware of
them.
Moreover, he also knows that if those facts were known by the other party
there would be no contract. For example, when a prospective seller of land has
knowledge of a hidden defects in the property that cannot be observed through
inspection. If the seller fails to inform the purchaser about these defects, the
seller could be held liable for fraud because his or her silence was intended to
mislead the purchaser into assuming there were no defects.
However, an active ceasing of the fact is the most obvious type of
misrepresentation. For instance, when the seller of a used car turns back the
odometer to conceal the number of kilometers the car has been driven, fraud has
occurred. Similarly, in order to be employed in a better position, one of the
parties forgets certain deeds, pretending that he has more qualifications that he
or she really has. Thus, this kind of employment contract would be avoidable for
lack of genuine assent. Of course, an express statement of fact that is a lie also
constitutes fraud.
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c) The duress
The relief from an agreement on the grounds of duress is clearly avoidable
if a person is deprived of his freedom or his property through physical or moral
force. Even the threat of physical force, although not carried out, constitutes
duress.
It should be mentioned that duress is not limited to the above situations.
Indeed, undue influence, which exists when a person exercises mental
coercion over another, can also lead to lack of genuine assent.
Furthermore, the coercion exercised not only against the contractual party,
but against a relative or closed friend of the party as well constitutes duress, in a
juridical meaning.
The essence of duress is the lack of free will or voluntary assent. Any
wrongful act or threat that overcomes the free will of the consenting party
constitutes duress. In other words, any economic coercion, threats on a person's
family and the beloved ones, and other uses of moral or social force to put a
person in such fear that his or her act is not voluntary, constitutes duress.
In order to determine whether a contract can be avoided on account of
duress, it is necessary to ascertain whether the acts or the threats were wrongful
and whether these events and not the free will of the party have induced the
required contractual assent.
At the same time, it should be mentioned that duress cannot be limited to
the fear that might overcome an ordinary person. If a contracting party, whether
brave or timid, is actually coerced to conclude a contract, duress has occurred.
Thus the state of mind of the person who is being threatened must be examined.
Did one party voluntarily accept the terms of the contract? Were the
circumstances such that there was no predictable alternative? Were those
circumstances due to coercive acts the other party? If the answer is affirmative,
the act is avoidable for duress.
Unlike fraud, duress can arise not only from the activity of the contracting
party, but also from the wrongful activity of a third party.
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As a conclusion, it should be mentioned that, as a vice, duress
presupposes an intentional element and a material one as well. Thus, the
intentional element is the fear induced to a contracting party for determining he or
she to conclude a juridical act. The exactly means used to induce that fear
represent the material element of duress. In fact, the induced fear is the element,
which vitiates the party's assent.
d) Injury Injury represents an obvious disproportion between mutual promises of
the parties within a bilateral contract.
In fact, injury is not provided by civil code as a real vice of consent, but it is
commonly recognized that it has this effect.
Injury includes the absence of the meaningful choice of one party together
with the terms of the contract, which are unreasonably favorable to the other
party.
It should be mentioned that not every juridical act could be avoided on the
ground of injury. Law requires several conditions that have to be fulfilled to obtain
the rescission of the act based on injury. Thus:
*) it has to be a bilateral act (e.g. a contract). That condition is imposed by
the fact that only these kind of juridical acts are defined as promises made in
exchange of promises. As consequences, bilateral contracts are susceptible of
disproportion of parties' mutual promises;
*) It has to be a commutative contract, otherwise the disproportion
assumed by the parties appears as a normal risk of an aleatory contract (the
terms "commutative" and "aleatory" contracts are explained in another chapter of
this book); .
*) the party who alleges to avoid the contract has to be an underage
person between 14 and 18 years old. According to Romanian law, this category
of persons can claim the cancellation of the contract on the grounds of injury;
*) it has to be a contract whereby such minor can conclude on his own
name and without any additional consent.
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The subject matter
The parties' conduct, established by juridical act in order to perform it,
constitutes the object of the act.
Therefore, the object of the act or its subject matter is the action or the
non-action that the active subject has the right to require, and the passive subject
ought to perform.
It appears that the subject matter of the act is identically with the object of
the juridical relationship, which creates that act. Moreover, the object and the
content of the juridical act are bound together with the same correlation that the
object and the content of juridical relationship. It results that, the actions or the
actions that the active party can pretend and the passive party is liable to perform
expresses their subjective rights and obligations arising from the act concluded
between them.
Within a juridical act, the parties' conduct can refer to goods and thus, the
toads become subsequent objects of the act.
In order to be valid, the subject matter of a juridical act has to fulfill seven
different conditions requested by law, as follows:
1. The subject matter has to exist. Law considers the subject matter as
existing even if it exists in the near future, unless it does not have an actual
existence (e.g., the sale of future harvest is a valid contract). A transaction in
futures occurs when a person contracts to deliver goods that either does not
exist, or the seller does not own them at the time of contracting. There is only
one exception from this rule. It is the case of the sale of future inheritance, which
is completely prohibited by law, not on the ground of non-existence of the subject
matter, but on the ground of immoral consideration.
If the object does no longer exist (at present), even if it has existed in the
past, the subject matter does not fulfill this requirement.
2. The subject matter has to belong to the civil circuit. Thus, according to
Art.963 civ.c. "only the goods on the market can be the object of a contract".
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3. The subject matter has to be identified or identifiable. The process of
selecting or setting aside the specific goods is referred to as identification of the
goods within the contract. According to Art. 964 civ.c., the goods individual
established (res ceria) are identified by their features, while general established
goods (res genera) are identified by their quantity, quality, number, size, etc.
The identification of goods has important legal consequences for the
contracting parties. Thus, if the goods are individual established and are lost,
damaged, or destroyed, the seller supports these risks. By contrary, when the
goods are general established, the seller is bound to deliver goods from the
same category, unless the risk has passed to the buyer. In this last case, the
buyer bears the loss.
It should be mentioned that the act is null, unless its object/subsequent
subject matter is identified or, at least, identifiable.
4. The subject matter has to be legal or material possible (impossibilium
nulla obligatio est). The impossibility of the subject matter means the impossibility
of anyone to perform a particular promise. For example, is not material possible
to alienate the moon. It is neither legal possible to sell goods that belong to public
property of the state.
This requirement is not considered fulfilled if the performance of the
contract is impossible only for a particular promisor, but it is generally possible.
For instance, a contract whereby a part promises to the other to pay an
amount of
5. The subject matter has to be free from legal or moral prohibition. It
means that the subject matter of the act should be lawful. Law usually cannot
enforce an act whereby the parties promise to do something illegal or against
public policy or morals.
6. Each party has to assume his or her owns behavior. It means that
nobody can promise somebody else's conduct. For example, it is forbidden to sell
the goods which belong to somebody else, or to engage performance the
performance of somebody else.
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The consideration
In order to be enforceable, a legal consideration or cause must support a
juridical act. The consideration represents the goal pursued by the parties who
conclude a particular juridical act.
The consideration is analyzed by our juridical literature from two points of
view:
- the instant consideration, which is essentially the same in all acts of a
certain type;
- the intermediate or specific consideration, which is different from a
certain agreement to another. For instance, the parties who conclude a sale
contract resume the same instant consideration in all cases; the seller is
interested to obtain the price while the purchaser is interested to acquire the
goods.
Nevertheless, every seller has his or her own intermediate- consideration
for selling (e.g., he or she wants to buy another object with that money, or he
wants to pay a former debt, etc.). At the same time, every purchaser has his own
intermediate consideration for buying (e.g., he or she wants to use the object or
he wants to sell it for a better price, etc.).
In order to support a valid contract, the consideration has to fulfill several
conditions as follows:
- to exist;
- to be real;
- to be non-prohibited by law or public morals (contra bonos mores). For
instance, a promise to undertake a social obligation cannot be considered a valid
one.
The problem of the validity of the consideration does not arise unless the
intermediate cause is analyzed. The instant cause is always valid, being an
abstract one.
In fact, Art.967civ.c. provides two presumptions: firstly, that the
consideration exists, and, secondly that it is valid.
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The form The observance of the proper legal form is one of the validity conditions
required for concluding a juridical act.
Within the common understanding, many people assume that juridical acts
should be drawn up in a written form in order to be enforceable. In fact, law does
not usually impose that. There are only a few types of juridical acts that should
be concluded in a certain form imposed by law for their enforceability.
It means that within Romanian law system, the formalism does not apply
as a principle, despite the normal exceptions provided by law.
The legal rules, which stipulate formal requirements, are divided into three
main categories as follows:
*) form requested by law ad validitatem. This form has to be observed for
the very validity of the act, which is compulsory. The non-observance of this form
flaws the act and a later complaining with the legal rules cannot cover the nullity
of the act.
Therefore, several acts are valid only when they are drawn up in a deed
stricto sensu, meaning an authentic form (e.g. donation, sale of land, articles of
partnership or mortgage). Law also requires some formal conditions for certain
other acts, as it is the case of the will (the will is valid only if it is executed in the
accordance with the formalities prescribed by statute for each type of will).
*) Form requested ad probationem. This form has to be observed in order
to proof (to attest) the content of the act, although the act is valid even in the
absence of the due form.
Sometimes, the simple consent of the contracting parties is enough for
concluding a valid agreement and law requires a written form only for constituting
evidences that can be used within a lawsuit. Examples of such acts include
insurance contract, voluntary deposit, lease or settlement.
However, Art.1191 para.1 civ.c. specifically requests the written form for
an act with an object having a value over 250 lei. Due to the power of the
national currency, it means that today, the written form is requested for proving
any agreement.
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*) Form requested for the opposability to third party. In other words, the
act is valid between contracting parties, but in order to make it opposable to third
parties, it should be concluded in a specific form. The form imposed by law has
to be also observed; otherwise the act' could not produce its effects over any
third party. For example, there can be mentioned the legal requirement to notify
the debtor within the assignment of debts and the registration of selling and
purchasing contracts of land or of real estate.
In fact, the assignment of debts is a debt transfer to another person's
benefit. Within a contract, one of the contacting parties can transfer his
contractual rights to a third party. The person entitle to do that is the so-called
"assignor" while the recipient of these rights is the so-called "assignee". The
contract between the assignor and the assignee has no effect against the debtor,
unless he or she is informed about that assignment, otherwise the debtor may
validly pay his debts to the assignor.
Being governed by the same rule, a land or real estate contract has
effects only between the seller and the purchaser, unless it is registered in the
real estate register. This is why, the purchaser of the land or other real estate
would not be able to prove his rights in case of eviction from a third party, unless
he or she has observed the due form of act.
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THE MODALITIES OF THE JURIDICAL ACT
As it was mentioned above, juridical acts may be pure and simple or
affected by modalities. The act's modalities are future events that determine the
existence or performance of the act.
The modalities of the juridical act are: the term, the condition and the task.
The term
A term is a sure and future event until the beginning or the extinguishing of
a right and of correlative duty adjourns. There are two categories of terms:
suspensive and extinctive terms.
A suspensive term is one that adjourns the beginning of enjoyment of a
right and of correlative duty (e.g. the term 'when the debtor becomes liable for
devolve duty, the so-called term of payment).
An extinctive term is one that adjourns the end of a right and of correlative
duty (e.g. the date of a creditor's death within a life annuity contract).
The term, either suspensive or extinctive, affects only the performance of
the act, not its very existence. Therefore, each of the above categories of tenns
produces different effects as follows:
- If the promisor (the debtor) performs his obligation before the suspensive
term provided by the contract, the payment is valid. In other words, the debtor
has voluntarily renounced to the benefit of the term;
- Until the payment is not due, the creditor cannot claim the payment of his
debt right and the debtor is not liable to pay;
- After the payment is due, the creditor is entitled to pursue the debtor (to
sue) for imposing him to execute his obligation;
- Unlike the suspensive term, the extinctive term brings the debtor's
obligation to its end. It means that the creditor may claim his debt right and the
debtor is liable for his duty;
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The condition
A condition is a future and uncertain event, which suspends the creation
or the execution of legal obligation. Apart from term, within condition the
achievement of the future event is not sure. The conditions, as modalities of
juridical acts, can be classified upon many criteria.
Along with specific effects arising from them, there are suspensive
conditions and resolutive conditions.
A suspensive condition is one upon which the enforceability of a
contractual right and its correlative obligation depend. It should occur before the
party executes his obligation within the contract. For instance, ,the further
promise "I'll sell you my apartment, if I have to move in another locality" is a
suspensive condition.
A resolutive condition is one upon which the cancellation of a contractual
right and its correlative obligation depend. If that condition occurs any
performance under the contract takes end. The following example expresses a
promise affected by a resolutive condition "I'll sell you my car, but if I have to
move in another locality, the sale is canceled".
A condition, either suspensive or resolutive, affects not only the
Iperformance of the act but its very existence. Therefore, the condition has the
following effects:
- Until the achievement of the suspensive condition (pendente conditione),
the creditor is not entitled to request the performance of the contract and the
debtor is not liable to execute it. Nevertheless, if the debtor fulfils his obligation,
he can claim the refund of his payment because it was not due. In this case, he is
entitle to obtain the restitution;
- after the achievement of the suspensive condition (eveniente conditione),
the act becomes a, pure and simple one and as consequences the creditor's right
is retroactively strengthened;
- if the suspensive condition cannot be achieved, any juridical relationship
between the parties is retroactively canceled;
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- until the fulfillment of the resolutive condition (pendente conditione) the
act has the appearance of a pure an/d simple one and therefore the creditor's
right is enforceable and the debtor is liable to execute his obligation;
- after the resolutive condition is achieved (eveniente conditione), the act
is retroactively canceled. Consequently, the parties should return their achieved
services, just as no contract had been concluded between them;
- if the resolutive condition cannot be achieved, the act is retroactively
considered as a pure and simple one.
Another distinction is made between the fortuitous (causative) condition,
the joint (mixed) condition and the willed ("potestative") condition.
Firstly, a condition is fortuitous (causative) whenever it consists of a
casual event. For instance "I'll lend you my umbrella, if it rains".
Secondly, a condition is joint (mixed) whenever it depends on one of the
parties' will. For example "I'll buy your apartment if I get married until the end of
the year".
Finally, a condition is willed (potestative) whenever it depends only on one
of the parties' will. Law allows the conditions that depends on the promisee's will
(e.g., "I'll buy your apartment, whenever you want to sell it"), but prohibits it if
depends on the promisor's will (e.g. I'll buy your apartment, if I feel like it).
Since it affects the existence of the creditor's right and the debtor's duty,
the condition has a retroactive effect. It means that, its achievement makes the
act a pure and simple one (in case of a suspensive condition), and cancels it (in
case of a resolutive condition).
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The task
A task is an obligation to give, to do or not to do, required by the grantor to
the grantee, within a gratuitous act (donation or a legacy, either bequest or
devise). It may be required to the benefit of the grantor, to the grantee's benefit or
to the benefit of a third party.
An example of tasks provided to the grantor's benefit includes the contract
whereby the grantor required to the grantee to pay an amount of money to a third
person. However, the task may never overtake the value of the gift, otherwise the
contract becomes a bilateral one.
A task may be also included in a will. For instance, the devise whereby the
devisor specifically requests that the devisee cultivate the land that constitutes
the object of the devise is a legacy affected by a task provided to the benefit of
the grantee.
A task provided to the benefit of the third party is almost similar with the
contract to the benefit of a third party. Essentially, a contract to the benefit of a
third party is a contract whereby the promisee's primary interest is to bestow a ~ft
upon a third party (e.g. a life insurance whereby the insurance company
promises to pay a certain amount of money to the benefit of a non-contracting
third party if the insured person die).
Unlike the contract to the benefit of the third party, a donation or a legacy
affected by a task stipulated to the benefit of the third party grants the grantee
(e.g., the task imposed to the legatee to pay a certain alimony to the surviving
spouse of the legator).
Whether the grantee does not execute the task, the gratuitous act is not
retroactively canceled, but the grantor may revoke it.
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THE EFFECTS OF JURIDICAL ACTS
The effects of the juridical act mean the rights and the correlative duties
that arise, modify or extinguish it. The effects of juridical acts are identically with
their content. Thus, in order to determine the act's effects, the content of the act
(the parties' rights and obligations) should be analyzed together with the parties'
will. It means that the following steps should be achieved:
*) to determine the existence of the act and to prove it through the means
of evidence;
*) to determine the act's effects through the interpretation of the acts'
provIsIOns.
It should be mentioned that the content of each provision expresses the
parties' will and their intention to conclude that particular act.
In order to analyze the content of the act's provisions the following
interpretation rules stipulated by civil code should be observed:
- juridical act has to be interpreted according to the real will of the parties,
despite the literal meaning of the words (Art.977 civ.c.);
- juridical act yields not only the effects the parties had in mind at the time
it was concluded, but also the effects requested by law or by public morals
(Art.970, para. 2 civ.c.);
- the usual clauses of the act are considered written, unless the parties
expressly forbid them (Art.981 civ.c.);
- the clauses of a juridical act are systematically interpreted, according to
the meaning of the whole act (Art.982 civ.c.);
- whenever a clause has two different meanings, it should be interpreted
that it produces effects, not in the way that excludes any effect (Art.978 civ.c.);
- doubtful clauses are interpreted accqrding to the nature of the act
(Art.979 civ.c.);
- if a doubtful clause cannot be understand otherwise, it is interpreted
according to the customs of the place where the act is concluded (Art.980 civ.c.);
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- doubtful clauses are always interpreted to the debtor's benefit (Art.983
civ.c.);
- the act will be essentially considered to cause the effects intended by the
parties, no matter how general are the words used in the act (Art.984 civ.c.);
- whenever the parties use an example within the act that does not mean
they intended to restrict their obligations at this example (Art.985 civ.c.).
The effects of a juridical act are governed by the following three principles:
a) the principle of compulsory force of the act;
b) .the principle of irrevocability of the act;' c) the principle of relativeness
(privacy) of the act's effects.
The principle pacta sunt servanda
j The principle of compulsory force of the act is expressed by the Latin I
idiom pacta sunt servanda. Indeed, Art.969civ.c. synthetically expresses this i
idea by stipulating that "the conventions legally concluded have the force of law
between contracting parties".
Furthermore, the principle of compulsory force is effective even upon the
court of law. For instance, the court solves the litigation between parties
according to the legal provisions and also based on the convention existing
between the litigants.
Nevertheless, law expressly provides the exceptions from the compulsory
I force of the act. Thus, despite the parties' will the contract takes end is the
following cases:
- the death, incompetence, insolvency or bankruptcy of any of the
contracting parties terminates the mandate contract (Art. 1552, para.3 civ.c);
- the contracts concluded intuitu personae are generally terminated by the
promisee's death.
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The principle of irrevocability of the act
The principle of irrevocability of the act restrains the promisor to revoke his
promise. This rule is a corollary of the. previous one (the principle of compulsory
force of the contract).
By way of exception, there are several cases where the unilateral
revocation of the act is allowed by law. For instance, law allows: - the
cancellation of a gift made by one of the spouse to another (Art.937civ.c.);
- the termination of a lease (rent) contract by the lesee, if there is no
certain term for the contract. A lease is an agreement whereby one party (the so-
called landlord) transfers his or her right into immediate possession to the other
party (the so-called lesee) for a commonly consideration, the so-called rent (Art.
1436 civ.c.);
- the dissolution of a partnership;
- the termination of the gratuitous mandate by any of the parties (Art.
1553-1556);
- the termination of a gratuitous deposit by the deponent (Art. 1616civ.c.).
There are also several unilateral juridical acts that may be merely revoked
by their author, such as:
- the will (Art. 922civ.c). The testator may revoke a will at any time until his
or her death. Notwithstanding, conceptually, a will is not a true juridical act until
the testator's death, because it has no juridical force. Obviously, after the
testator's death it cannot be revoked anymore;
- the relinquish of an inheritance (Art.701civ.c.). To revoke a relinquish of
the inheritance means "to accept the inheritance. Therefore, the conditions
requested for revocation of the relinquish are the same as they are for the
I acceptance of an inheritance (the acceptance should be expressed
within 6 months from the death of the person inherited and the inheritance should
not to be previously accepted by another heir);
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The principle of privacy of the act
According to the principle of relativeness (privacy) of the act's effects, the
effects of a juridical act are produced strictly between the parties of the act
(promisor and the promisee). Hence, a plaintiff can maintain a lawsuit only
against the party with whom the contract has been concluded.
In order to understand that principle, the following basic notions have to be
explained:
- party (the so-called "contracting party" in case of a bilateral act);
- third party;
- interested party.
A "party" is a person who concludes a juridical act, either referred to as an
"author" (in case of a unilateral act), or as a "contracting party" (in case of a
bilateral act). Depending on the nature of the act, the parties can have specific
names: grantor-grantee, legator-legatee, assignor-assignee, bargainer-
bargainee, leasor-Ieasee, landlord-tenant, vendor-purchaser, consignor-
consignee, devisordevisee, mortgagor-mortgagee, etc.
From a juridical point of view, a ."party" can be a single person or group of
Itwo or more persons, whether they have the same interest within the act.
A "third party" is a person who was not involved in the conclusion and the
performance of the act.
An "interested party" (known, also, as ayant cause or habentes causam)
lis a non-contracting party who uses the existence of the act as a basis for a
lawsuit.
Essentially, the interested parties are persons who are recognized either
as aving enforceable rights or as being liable for duties created by an act where
they 'e not parties. These persons are grouped into three classes:
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1. Universal successors and successors with universal title, either
intestate or testamentary.
A universal heir succeeds an universitas bonorum, with assets and
liabilities, and every juridical act made by the deceased takes effects upon him or
her.
In company law, a case of universal succession is the merging through
absorption. The absorption supposes that a company becomes a part of another
company (the so-called absorbent company). The former company ceases its
existence but the absorbent company continues to exist and succeeds into the
rights and duties owed by the former corporation. One of the absorption effects is
that the absorbent company retains its name and identity' and, at the same time,
acquires the assets, liabilities, franchises and power of the company that ceases
to exist. Another case provided by company law is the merge. Within merge, two
or more companies are united and form a new company. At the same time, the
original companies cease to exist. In both the case, the absorbent company or
the company resulted from merge acquires the assets and liabilities of the former
company/companies, being its universal successor.
Successors with universal title are persons who bequeath a fraction of the
deceased's patrimony. They have the same position like universal heirs, being
bounded by any contract or unilateral act made by the deceased. The only
distinction between them and the universal heirs is that the former inherits a
fraction of the patrimony, whereas the latter inherit a whole patrimony.
For example, within company law, the division of a company leads to such
succession with universal title. Thus, the divided company ceases to exist and
the resultant companies bequeath fraction of its patrimony.
Universal successors and successors with universal title are interested
parties in any act concluded by the deceased because they inherit the patrimony
as it is (e.g. decreased by expensive gifts). Thus, even if they were not parties of
the act, due to their inheritance right, they become interested parties. It should be
mentioned that, there are cases where law allows to a special category of heirs
to avoid the gratuitous acts made by the deceased.
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2. Successors with a particular title
A successor with a particular title is a person who acquires a certain
enforceable right, by any lawful transfer. For instance, such persons are the
purchasers, the assignees, the heirs who inherit a specific right. The transferees
are interested persons only related to the acts which fulfill certain conditions as
follows:
- the act is previously concluded;
- the transfer
- the act refers to the right acquired by the transferee.
We emphasize that the transferee can be either a party (in the act
whereby he or she acquires the right), or a third party (in the act which has
another object than the acquired right).
Simple creditors A creditor is a person to whom an obligation is due. According to law, the
creditor has the right to demand and to be recovered by a certain performance of
his debtor. The creditors who are entitled to a lien (e.g. a charge, holds or claims
upon the property of another as security for some debt or charge) are generally
referred to as secured creditors. Apart from them, there are some creditors who
have no such guarantees, known as simple creditors.
Inasmuch as their claims are unsecured, the simple creditors are
interested parties in any juridical act made by their debtor, because such acts
may influence the promisee's solvency. Therefore, law allows them to avoid the
gratuitous acts concluded by their debtor with the view to jeopardize the creditors'
rights.
Let's take the following example: we suppose that X owns $500,000 to Y.
There is considered real exception to the principle of relativeness effects
of the act the so-called contracts to the benefit of a third party (e.g. life insurance
contract).
But, the universal successors and successors with universal title, as well
as the simple creditors are. considered apparent exceptions from above
mentioned principle.
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THE NULLITY OF JURIDICAL ACTS
Definition
An act concluded with the observance of legal rules is a valid act. It can be
enforced under the contracting parties and can produces its legal effects
stipulated by law. But, whenever, the legal provisions are not observed and the
act disregards certain legal expressed rules, then the act is void or avoidable. It
means that, an act concluded against law is sanctioned through a specific civil
sanction, the so-called nullity.
The nullity is that juridical means which deprives the act of its effects. It
should be mentioned that, within Romanian legal system, the concept of "nullity"
does not destroy the act itself, but only its effects. Thus, nullity is not seeing as
an organic state of the act. It is only a sanction due to the non-observance of
legal rules at the time when the act was concluded.
The nullity fulfills a preventive function, because the parties refrain from
concluding an unlawful act. But, when the acts are concluded without the
observance of legal rules, then the nullity has a punitive function.
It should be noted that the nullity applies from the moment when the act
was concluded (ex tunc) and consequently the parties are restored to the
positions prior to their agreement. It is just as no act has been ever concluded
between them.
Nevertheless, the nullity is different from dissolution or rescission of the
contract, which presupposes a valid act that cannot produce its effects any more
due to specific events. Thus, the nullity supposes that the act was defectively
created, against law and as result has never existed.
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Classification of nullities.
a) The absolute and the relative nullity. An act concluded disregarding the legal provisions could be void or
avoidable, according to the nature of the interests protected by nullity.
When the interests protected by nullity are public interests, the act is null
and void. It means that the nullity is absolute.
If the protected interests are private, the act is only avoidable and the
nullity is relative.
A void act is not enforceable by anyone. It is a null act or an act having no
legal force or validity because it was concluded disregarding the statutory
provision of law. The following reasons call the absolute nullity of an act:
- when one of the validity condition of the act is missing;
- when the object or consideration is prohibited by law or public morals;
- when the act has been concluded by fraud and evasion of law;
- in case of activities performed by a company beyond the powers
conferred upon it by its articles of association or other constitutive deeds (known
as ultra vires acts);
- when a special permission requested by law for the transaction is
mISSIng;
- in case the form requested ad validitatem by law has not been observed.
An avoidable act has an in-between status. It means that it can become a
valid act because one or more of the parties have the power to render it
enforceable. For example if the lack of genuine assent (error, mistake, duress or
injury) occurs within the conclusion of the act, it can be avoided.
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This classification presents a particular importance because of the
differences between the rule governing the void and the avoidable acts. Thus:
1. Anybody may claim to make null and void a juridical act. Inasmuch as it
is a high degree of irregularity, law draws no limits in enforceability of the right to
sue.
By contrary, only the interested persons may avoid an act (e.g. the party
whom consent was affected by one of the vices of consent).
2. The absolute nullity can be claimed anytime; there are no limits in time
for claiming an act to be null and void.
As far as the relative nullity is concerned, a party who benefits from nullity
can claim the avoidance of the act only within a specific limit of time, the so-
called extinctive prescription (the general time of extinctive prescription is 3
years).
3. Generally speaking, an avoidable act can produces its effects until its
avoidance is claimed. Thus, it is up to the party who benefits from the nullity to
claim the cancellation of the act. But, if the party ratifies the act by covering its
defects, then the act is valid and produces its effects.
This situation cannot occur for a null and void act that cannot be subject of
ratification because its defects are so essential, that nothing can cover them.
b) According to the extent of the nullity, there are partial and total nullities.
Total nullity affects the whole act, while partial nullity affects only a part of
it. In this latter case, the parts of the act, which are not avoided by nullity,
produce their legal effects.
It should be mentioned that, within Romanian legal system, the partial
nullity is the rule, and the total nullity is the exception, Therefore, whenever it is
possible, the tendency is to save the act, and to cancel only those clauses which
have been drawn up through the non-observance of legal rules.
c) Taking into account if the nullity is or is not provided by law, there are
implied or express nullities.
Whenever law expressly establishes that the infringement of the rule leads
to the state of nullity of the act
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By contrary, the nullity is implied when law does not expressly provide it,
but the cancellation (avoidance) of the act results indubitably from that legal
provision. For instance, according to Art.813 civ.c. "all donations should be
concluded in authentic form". In this case, even if law does not expressly provide
the nullity, the act is null because the conditions imposed for its validity have not
been observed.
The effects of nullity and avoidance
As it was mentioned above, the nullity of the act deprives it of its effects.
It is obvious that an act null and void or avoidable cannot produce any
effects in the future (ex nunc). As for the past (ex tunc), the effects should be
retroactively eliminated.
The nullity or avoidance of an act is governed by three principles:
- principle of retroactivity. The rule is that an act null or avoided cannot
produce effects in the future, and the effects already produced will be eliminated.
If the parties of the act have not fulfilled their obligation until the nullity is
established, the judge declares within the nullity the ineffectiveness of the act.
But, when the parties have total or partial fulfilled their obligations, the judge
declares within the nullity or the avoidance of the act the retroactive elimination f
act's effects. Consequently, the parties are liable to return each other the
services already carried.
Nevertheless, this principle has its exceptions as the contracts with
successive execution (e.g., life annuity contract) are. The nullity or the avoidance
If these contracts does not eliminate the effects they have produced in the past.
- principle of restoring the parties into their positions before the contract
(restitution in integrum).
Exceptions to this rule include the right of the bona fide acquirer (i.e., the
~quirer in good faith, having no knowledge that the act is defective) to maintain Ie
benefits yielded by the goods acquired on the basis of a null act.
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- principle of cancellation of accessory acts. It means that the nullity or
avoidance of the act also affects the subsequent acts concluded on the basis of a
null act.
This principle represents an exception of the rule .that an accessory act
has the same destiny as the principal act has (accesorium sequitur principale). It
should be mentioned that, the acquirer in good faith is, usually, excepted from
the consequences of this rule.
This classification presents a particular importance because of the
differences between the rule governing the void and the avoidable acts. Thus:
1. Anybody may claim to make null and void a juridical act. Inasmuch as it
is a high degree of irregularity, law draws no limits in enforceability of the right to
sue.
By contrary, only the interested persons may avoid an act (e.g. the party
whom consent was affected by one of the vices of consent).
2. The absolute nullity can be claimed anytime; there are no limits in time
for claiming an act to be null and void.
As far as the relative nullity is concerned, a party who benefits from nullity
can claim the avoidance of the act only within a specific limit of time, the so-
called extinctive prescription (the general time of extinctive prescription is 3
years).
3. Generally speaking, an avoidable act can produces its effects until its
avoidance is claimed. Thus, it is up to the party who benefits from the nullity to
claim the cancellation of the act. But, if the party ratifies the act by covering its
defects, then the act is valid and produces its effects.
This situation cannot occur for a null and void act that cannot be subject of
ratification because its defects are so essential, that nothing can cover them.
b) According to the extent of the nullity, there are partial and total nullities.
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Total nullity affects the whole act, while partial nullity affects only a part of
it. In this latter case, the parts of the act, which are not avoided by nullity,
produce their legal effects.
It should be mentioned that, within Romanian legal system, the partial
nullity is the rule, and the total nullity is the exception, Therefore, whenever it is
possible, the tendency is to save the act, and to cancel only those clauses which
have been drawn up through the non-observance of legal rules.
c) Taking into account if the nullity is or is not provided by law, there are
implied or express nullities.
Whenever law expressly establishes that the infringement of the rule leads
to the state of nullity of the act (e.g. Art.822 civ.c. provides the nullity of the acts
affected by a willed condition depending by the promisor's will), the nullity is
expressed.
By contrary, the nullity is implied when law does not expressly provide it,
but the cancellation (avoidance) of the act results indubitably from that legal
provision. For instance, according to Art.813 civ.c. "all donations should be
concluded in authentic form". In this case, even if law does not expressly provide
the nullity, the act is null because the conditions imposed for its validity have not
been observed.
The effects of nullity and avoidance
As it was mentioned above, the nullity of the act deprives it of its effects.
It is obvious that an act null and void or avoidable cannot produce any
effects in the future (ex nunc). As for the past (ex tunc), the effects should be
retroactively eliminated.
The nullity or avoidance of an act is governed by three principles:
- principle of retroactivity. The rule is that an act null or avoided cannot
produce effects in the future, and the effects already produced will be eliminated.
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If the parties of the act have not fulfilled their obligation until the nullity is
established, the judge declares within the nullity the ineffectiveness of the act.
But, when the parties have total or partial fulfilled their obligations, the judge
declares within the nullity or the avoidance of the act the retroactive elimination f
act's effects. Consequently, the parties are liable to return each other the ervices
already carried.
Nevertheless, this principle has its exceptions as the contracts with
successive execution (e.g., life annuity contract) are. The nullity or the avoidance
If these contracts does not eliminate the effects they have produced in the past.
- principle of restoring the parties into their positions before the contract
(restitution in integrum).
Exceptions to this rule include the right of the bona fide acquirer (i.e., the
acquirer in good faith, having no knowledge that the act is defective) to maintain
the benefits yielded by the goods acquired on the basis of a null act.
- principle of cancellation of accessory acts. It means that the nullity or
avoidance of the act also affects the subsequent acts concluded on the basis of a
null act.
This principle represents an exception of the rule .that an accessory act
has the same destiny as the principal act has (accesorium sequitur principale). It
should be mentioned that, the acquirer in good faith is, usually, excepted from
the consequences of this rule.