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Legal Act

The most accurate defnition o alegal act is an expression of somebodys will

made with the intention to bear, modify or cease a juridical relationship.

Our law commonly uses this notion (act) with two diferent meanings:

1) Firstly, as we already defned it, as an e!ression o a !erson"s will.

This is the negotiumsense#

$) %econdly, this notion is used with the meaning o a written statement, which is

&nown as the instrumentumsense.

'iil code uses oth o these meanings. For instance, the ciil code !roides that

*the acce!tance o a succession can e e!ressed or im!lied+. t is e!ressed

wheneer the successor ma&es an act in an authentic orm (instrumentum sense) in

order to ac-uire the inheritance, and it is im!lied wheneer he sim!ly ma&es an act

(negotium sense) which can e concluded only y a !erson who has a successor

-uality.

CLASSIFICATION OF LEGAL ACTS

There are dierent criteria to classiy the ciil acts as ollows:

Unilateral and bilateral acts

A unilateral actis an act that inoles the expression of a single persons will.

t means that, there is only one !erson e!ressing his intention to !roduce /uridical

eects. t can e included in this category the will, the oer to contract, the

acce!tance o a succession.

On the contrary, a bilateral or multilateral actis an agreement etween two or

more !arties with distinguished interests. A ilateral0multilateral 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.

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am!les o contracts include: contract o sale, contract o echange, loan, mandate,

consignment, em!loyment contract, etc.

The !rocess y which the !arties arrie at a argain will ary widely according to the

circumstances. t is common to assume that it inoles two distinct ste!s: the frst is

an oer y one !arty and the second is an acce!tance y the other.

2oreoer, contracts may e classifed, in their turn, as unilateral. and ilateral

contracts.

ndeed, a contract may inole an echange o !romises in which two !arties agree

that each o them will !erorm a certain oligation. The echange o a !romise or a

!romise is &nown as a ilateral contract.

there is no such echange and only one !art assumes oligations, the contract is

unilateral. For instance, in a loan contract, the loaner is the !romisor, eing entitled

to demand the loan, and the orrower is the !romisee, eing oliged to gie it ac&.

3e em!hasi4e that, in this case, the contract inoles two will ut only one !art

assumes oligations.

Acts made by onerous title and acts made by gratuitous title

The criterion o this distinction is the aim !ursued y !arties concluding the act.

An act made by onerous titleis that act in which each party promises an

economic benet to the other in exchange of another economic benet.

On the contrary, an act made by gratuitous titleis one in which one party

promises to the other an economic benet without expecting, in exchange,

any promise.

Although many o the unilateral contracts are made y gratuitous title (e.g., the

donation or the gratuitous mandate), there are some which may hae oth gratuitous

or onerous titles (e.g., the loan contract without or with interests).

The acts made by onerous title subdivide into:

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a) commutative act5 one in which the parties know, from the very moment

of concluding the act, which will be their mutual obligations(e.g., sale

contract).

) aleatory act5 an agreement wherein the performance of one party

depends on the occurrence of an uncertain event(alea).

n act, when the contract is concluded the !arties do not &now the etent o their

oligations ecause their !erormance de!ends o the occurrence o an uncertain and

ortuitous eent. am!les o such acts include lie and fre insurance contracts or lie

annuity contracts. %uch agreements are enorceale notwithstanding an uncertainty

o terms at the time o their conclusion or an underta&en ris& clearly a!!ears.

The acts made by gratuitous title are subdivided in:

a) grants5 a voluntary transfer of goods from a patrimony to another.This

transer can e achieed either y a !erson to another.

) acts o benevolence5 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 o this classifcation is the eect o the act.

A constitutive actis one that constitutes a right which does not previously

exist. For instance, the /uridical institutions o mortgage or o usuruct are such

constitutie acs. Accordind to the 6ew 'iil 'ode, the !artition is a constitutie act. A

*!artition+ is a dissolution o the unity o a !ossession that eists etween mutual

owners.

A translative actis an act which transfers a pre-existing right. The most

/uridical acts hae this character (e.g., sale contract or echange contract).

A declarative actis one that consolidates a pre-existing subjective right. For

instance, the settlement is a declaratie act.

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Consensual! ormal and real acts

A consensual actis an enforceable one with no formal conditions reuested.

According to the ciil code the most /uridical acts are enorceale y sim!le consent.

A ormal actis enforceable only if there are observed some additional

formal conditions, other than the simple consent.The orm re-uired or

concluding such acts is, most re-uently, a written settlement. For instance, law

re-uires a written orm, and sometimes een an authentic orm, or concluding acts

as donation, will, mortgage or arm contract.

A real actis one that can be concluded only by delivering the thing by the

transferor to the transferee. Thereore, the delierance o the goods is re-uested

not only to !erorm the real act, ut to conclude it as well. There are real acts loan or

de!osit contracts, wherey the sim!le consent is not enough or the alidity o the

transaction. Thus, the delierance o the goods is re-uired y law or a alid

conclusion o the act itsel.

Acts "it# instantaneous e$ecution and acts "it# successive e$ecution

!n act with an instantaneous execution(uno ictu) is one that involves a

single performance, meaning made at once(e.g., sale contract).

An act "it# successive e$ecutioninvolves multiple performance. t means

that we hae successie o!erations (e.g., lie annuity contract, rent contract, etc.).

According to the 6ew 'iil 'ode, there is no dierence in what concerns the nullity o

those acts. One o the most im!ortant dierences is that the sanction or cul!ale

ailure or im!ro!er !erormance will e rescission in case o the contracts with aninstantaneous eecution, while or the contracts with successie eecution the

sanction will e dissolution.

%rinci&al and accessory acts

A &rinci&al actis one independent of any other act.

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An accessory actis one that depends on a principal act. For instance, a

mortgage de!ends on the loan contracted y the mortgagor. t cannot continue ater

the time when the mortgagor !erormed his oligation to the eneft o the

encumrance. n this case, the rule is that the accessory act has the same destiny as

the !rinci!al one (accesorium se-uitur !rinci!ale).

%ure and sim&le acts and acts afected by modalities

Apure and simple actis one that does not contain a modality. There are

seeral acts that are incom!atile with modalities, li&e marriage or ado!tion, ut

most o them may e aected y 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 tas&, which will e later treated in this cha!ter. 'ertain acts are essentially

de!endent u!on a modality, e.g., the loan, that always inoles a term, the donation

with a tas& or the insurance contract.

Inter vivos acts and mortis causa acts

An inter vivos act(lietime act) is that which produces its e"ects

unconditioned until the death of the promisor. That category includes all

contracts and the most o unilateral acts.

A mortis causa actis one which produces its e"ects after the death of the

promisor. n other words, until then it has no eects. (the will)

Named acts and unnamed acts

The named actsare the acts described and regulated by law. Their conclusion

and !erormance will e goerned y the s!ecifc !roision o law (e.g., ciil code

regulates the sale contract in Art. 1789 5 17$, the donation in Art. 1911;19

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The unnamed actsare those created by the parties for their specic

interests. They are as legal as the named ones. n as much as there is not a s!ecifc

!roision in law, they are goerned y the rules determined according to the general

!rinci!les o contract law. %ometimes an unnamed contract may ecome a named

one, when a s!ecial law, which descries and regulates it, comes into orce. t has

ha!!ened recently with the s!onsorshi! contract, ecoming a named act y coming

into orce o Law no. .

CON)ITIONS OF *ALI)IT+

?y conditions o alidity o /uridical acts we understand their elements o

enorceaility. Thus, the ciil code !roides the main conditions or the alidity o

/uridical acts. These conditions are the ollowing:

; the ca!acity o the !arties to contract#

; a genuine assent o the !romisor#

; a certain su/ect matter#

; a lawul consideration.

T#e ca&acity

To test the ca!acity o concluding a /uridical act does not mean to see whether a

!erson"s mind is im!aired or unsound, and whether that !erson understands all the

terms o the act, ut, it means, to see whether that !erson has the aility to

com!rehend the nature o the transaction he or she is engaged in and understand its

conse-uences.

ssentially, any !erson unale to ta&e care o his or her !ro!erty or any reason,

including mental illness, adanced age, or disease is considered incom!etent. The

ca!acity, which is a state o law (de /ure) is distinguishale rom /udgment, which is a

state o act (de acto).

'iil code !roides that *any !erson is assumed to e ale to contract unless he isdeclared inca!ale y law+. t means that without a court determination o legal

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incom!etence, the !resum!tion o law is that a !erson has the legal ca!acity to

contract or to ma&e a unilateral act. n this matter, the rule is the ca!acity, and the

lac& o ca!acity is the ece!tion. Thereore, any legal !roisions related to the

asence o ca!acity cannot e etensiely construed.

n com!any law, the issue is analy4ed according to the rule !roided y @ecree no.

, which !rohiits in Art. the ultra ires acts (meaning, the actiities o a

cor!oration eyond the !owers conerred u!on it y its charter, or y the statute

under which it was created).

T#e assent

The assent and the consideration constitute the /uridical will o the !arties.

The !arties oluntarily and &nowingly conclude the act as a result o their intention.

n our legal system, t#e ,uridical "ill o &artiesis goerned y two !rinci!les:

1) t#e &rinci&le o reedom o ,uridical "ill o t#e &arties. t means that the

!arties o a ciil act are ree to conclude or not a certain act, to sti!ulate any

!articular clauses, to determine the s!ecifc content o the act, and, in most cases, to

determine the orm o the act.

The !arties" reedom to conclude any /uridical acts is limited y the com!ulsory rules

o law and y the !ulic !olicy.

$) t#e &rinci&le o real "ill o t#e &arties. According to this !rinci!le, i there is

any incongruity etween the real intent o the !arties and the e!ressed clauses o

the act, the ormer is the one which will e ta&en into account.

t should e mentioned that, in order to a!!ly this !rinci!le, the !roo o the real

intention o the !arties is ta&en into account. Thus, i it is !ossile to determine the

real will o the !arties, the act has to e construed u!on the e!ressed words used y

!arties.

t results there rom that the alidity o the act de!ends on the alidity o the /uridical

will o the !arties. ndeed, in some cases, the elements re-uired or a alid and

enorceale contract a!!ear to e !resent ut in reality they are not.

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For eam!le, i a store owner acce!ts a gang leader"s oer to !rotect his !ro!erty

rom gang iolence y agreeing to !ay the gang 199 !er month, the store owner is

not genuinely assenting to the terms o the act. %imilarly, i a used;car sales!erson

deceitully states that a car has a reuilt engine and has neer een in an accident,

the uyer who relies on that inormation and signs a !urchase contract does not hae

a alid /uridical will to conclude the act.

The assent eternali4es the !arty"s intent to conclude a /uridical act. For eing the

asis o a alid act, t#e assent #as to ul-ll several conditions, as ollows:

1) It #as to e$ist. Any act concluded in the asence o the assent will e declared

null and oid#

$) It #as to be unambiguously e$ternali.ed. t means to result rom the words o

the !arties, either orally or written e!ressed, or een deried rom their actions.

3hile, usually, any reasonale means o communication are eectie to eternali4e a

alid assent, seeral !rolems arise in case o silence. @oes silence hae any /uridical

alueB

Cenerally s!ea&ing, the assent cannot e im!lied, and in case o silence it is

considered that it is no assent. 2ere inaction and silence are usually not regarded asmaniestations o intention to agree oer a contract. Doweer, some ece!tions to

this rule occur, de!ending on the su/ect matter o the act.

Firstly, law e!ressly !roides, in some cases, that the silence o one o the !arties

has to e considered an assent. For instance, the ciil code sti!ulates that the rent

contract is considered restored in orce i, ater the term o the contract has een

ulflled, the !arties silently continue to !erorm it.

%econdly, the initial agreement etween the !arties may constitute the asis or

regarding silence as an assent.

Thirdly, certain conducts o the !arty may e assumed as e!ressing an assent. For

instance, i an heir conducts himsel li&e an acce!tant o an inheritance, law

considers that he has !erormed a tacit acce!tance.

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>) It #as to be e$&ressed by a &erson "#o intents to engage #imsel in a

legal relations#i&/

8) It #as to be de-nite and certain as t#e essential terms o t#e act are

concerned#

7) It #as to be genuine. To e genuine, the assent must e conceded oluntarily

and &nowingly y each o the !arties, elsewhere there is no alid contract etween

them.

T#e lac0 o genuine assentmay arise y the so;called *ices o consent+ or

deects. Law considers as ices o consent the ollowing:

a) the mista&e0error#

) the misre!resentation#

c) the duress#

d) the in/ury.

a1 T#e mista0e 2error1

The error is generally defned as a state of mind which has not accordance with

the facts. t is an erroneous elie aout the acts as they eist at the time when the

agreement is concluded. t should e mentioned that the error is !roduced y the

!erson himsel. n order to itiate the !arty"s assent, the error should e serious. n

that case, the !arty is entitled to claim the cancellation o the act.

Ty&es o errors:

a) essential error, which reers to the nature o the act (error in negotium) or to the

identity o the su/ect matter (error in cor!ore). For instance, when one o the !arties

eliees that the act is a donation, and the other one eliees that it is a sale.

A similar case is when one !arty eliees that he or she uys a car while the other

!arty eliees that he or she sells a toy car.

Another eam!le o essential error is the one which reers to the -ualities o the

su/ect matter o the act (error in sustantiam) or to the contracting !erson (error in

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!ersonam). A case o error in sustantiam arises, or eam!le, when the seller

eliees that the su/ect matter o the contract is an u!right !iano, and the uyer

eliees that it is a grand !iano.

Another ty!e o error is one concerning a !erson"s identity. Thus, generally, an act is

aoidale or error in !ersonam only i it is concluded intuitu !ersonae. These acts

are concluded on the ground o one o the !arties" -ualities

the oer or receies an acce!tance rom one whom he mista&enly eliees to e

the addressee o the oer, the oer may aoid the contract or error in !ersonam.

The sanction or these ty!es o error is relatie nullity.

) nonessential error is the alse re!resentation o less im!ortant circumstances at

the moment when the contract was signed, in the sense that the mista&en !arty

would hae signed the act whether he had had a air re!resentation o those

circumstances.

A nonessential error can attract a decrease or increase in alue o the eneft, ut

may remain een without any legal conse-uences

c) immaterial error, which reers to a contract. t doesn"t coner to any o the

!arties unenorceale.

From another !oint o iew, an error could e ilateral or unilateral. A mutual

(ilateral) error means that oth !arties are misunderstood the same matter. For

eam!le, a mutual error is where oth !arties understood that the real agreement

was what one !arty alleges it to e, ut had unintentionally !re!ared and eecuted

one which did not e!ress the true agreement.

A uture distinction should e drawn u! etween an error aout law and an erroraout the acts. t should e mentioned that within our system o law, the error aout

law is not acce!ted or !leading someody"s ignorance. This rule is ased on the act

that law is !resumed to e &nown rom the moment it is !ulished in the OEcial

2onitor o omania.

Thus, wheneer someody is ully cogni4ant o the acts and the sustance o his

ehaior, he cannot !lead his ignorance regarding the legal conse-uences o his

conduct or /ustiying the rescission o the contract. ?y contrary, in case o errors

aout the acts the !arty can claim the rescission o the contract.

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b1 T#e misre&resentation

The misre!resentation is the misrepresentation of a fact that is made with

knowledge and with intention to deceive the other party.The

misre!resentation has the same essence as the error0mista&e, meaning the

misre!resentation. ?ut unli&e the error0mista&e, the misre!resentation results rom

one contracting !arty action. Thus, the !arty who misre!resents the acts clearly

intends to do it and to deceie the second !arty, who, relying on the

misre!resentations, changes his or her legal !osition in concluding the contract.

%ometimes, a misre!resentation o acts may e unintentional. t means that there is

no misre!resentation, ut the act is still aoidale, ecause it was concluded y

mista&e.

n order to hae a misre!resentation, law commonly re-uires either an aErmatie act

or an e!ress statement. Occasionally, silence may constitute a misre!resentation o

acts leading to raud. The intention to deceie is e!ressed y the !arty"s intention

to create a alse im!ression. %ince misre!resentation re-uires this intent, mere

negligence or carelessness cannot constitute raud.

From a structural !oint o iew, the misre!resentation has two main elements:

1) intentional element (which consists o the will to raud the other !arty),

$) material element (which consists o the actiities !erormed in order to lead the

other !arty into mista&e).

Cenerally, mere ailure to disclose inormation to the other !arty does not constitute

a misre!resentation, ecause law does not im!ose a duty o disclosure. There are,

howeer, a numer o ece!tions to this rule. %u!!ose one !arty &nows certain

material acts and &nows the other !arty is not aware o them.

2oreoer, he also &nows that i those acts were &nown y the other !arty there

would e no contract. For eam!le, when a !ros!ectie seller o land has &nowledge

o a hidden deects in the !ro!erty that cannot e osered through ins!ection. the

seller ails to inorm the !urchaser aout these deects, the seller could e held liale

or misre!resentation ecause his or her silence was intended to mislead the

!urchaser into assuming there were no deects.

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Doweer, an actie ceasing o the act is the most oious ty!e o misre!resentation.

For instance, when the seller o a used car turns ac& the odometer to conceal the

numer o &ilometers the car has een drien, misre!resentation has occurred.

c1 T#e duress

The relie rom an agreement on the grounds o duress is clearly aoidale i a

person is deprived of his freedom or his property through physical or moral

force.en the threat o !hysical orce, although not carried out, constitutes duress.

t should e mentioned that duress is not limited to the aoe situations.

ndeed, undue inGuence, which eists when a !erson eercises mental coercion oer

another, can also lead to lac& o genuine assent.

Furthermore, the coercion eercised not only against the contractual !arty, ut

against a relatie or closed riend o the !arty as well constitutes duress, in a /uridical

meaning.

The essence o duress is the lac& o ree will or oluntary assent. Any wrongul act or

threat that oercomes the ree will o the consenting !arty constitutes duress. n

other words, any economic coercion, threats on a !erson"s amily and the eloed

ones, and other uses o moral or social orce to !ut a !erson in such ear that his or

her act is not oluntary, constitutes duress.

n order to determine whether a contract can e aoided on account o duress, it is

necessary to ascertain whether the acts or the threats were wrongul and whether

these eents and not the ree will o the !arty hae induced the re-uired contractual

assent.

At the same time, it should e mentioned that duress cannot e limited to the earthat might oercome an ordinary !erson. a contracting !arty, whether rae or

timid, is actually coerced to conclude a contract, duress has occurred. Thus the state

o mind o the !erson who is eing threatened must e eamined.

Hnli&e misre!resentation, duress can arise not only rom the actiity o the

contracting !arty, ut also rom the wrongul actiity o a third !arty.

As a conclusion, it should e mentioned that, as a ice, duress !resu!!oses an

intentional element and a material one as well. Thus, the intentional element is the

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ear induced to a contracting !arty or determining he or she to conclude a /uridical

act.

d1 In,ury

n/ury re!resents an oious dis!ro!ortion etween mutual !romises o the !arties

within a ilateral contract.

n act, in/ury is not !roided y ciil code as a real ice o consent, ut it is

commonly recogni4ed that it has this eect.

n/ury includes the asence o the meaningul choice o one !arty together with the

terms o the contract, which are unreasonaly aorale to the other !arty.

t should e mentioned that not eery /uridical act could e aoided on the ground o

in/ury. Law re-uires seeral conditions that hae to e ulflled to otain the rescission

o the act ased on in/ury.

Thus, or the in/ury in case o the underage child, the ollowing conditions must e

ulflled

I) it has to e a ilateral act (e.g. a contract). That condition is im!osed y the act

that only these &ind o /uridical acts are defned as !romises made in echange o

!romises. As conse-uences, ilateral contracts are susce!tile o dis!ro!ortion o

!arties" mutual !romises#

I) t has to e a commutatie contract, otherwise the dis!ro!ortion assumed y the

!arties a!!ears as a normal ris& o an aleatory contract (the terms *commutatie+

and *aleatory+ contracts are e!lained in another cha!ter o this oo&)# .

I) the !arty who alleges to aoid the contract has to e an underage !erson etween

1> and 1J years old.

I) it has to e a contract wherey such minor can conclude on his own name and

without any additional consent.

For the in/ury on case o an adult, the ollowing conditions must e ulflled:

t has to e a ilateral contract

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t has to e a commutatie act, made y onerous title

t is necessary that one o the !arty, ta&ing adantage o the state o need,

ine!erience or lac& o &nowledge o the other !arty sti!ulates in its own

aour or another !erson a eneft o a consideraly greater alue at the time

o concluding the contract than the alue o their own enefts. As an

ece!tion, in case o the sale contract, the ridiculous low !rice is sanctioned

with the relatie nullity o the contract without the need or the !arty to

demonstrate that the other had ta&en adantage o the state o need, lac& o

e!erience or lac& o &nowledge o the seller.

n case o the adult, the action or annulment is admissile only i the damage

eceeds hal the alue o the !erormance guarantee or eecuted y the in/ured

!arty at the time o concluding the contract and the dis!ro!ortion must susist until

the re-uest or cancellation.

T#e sub,ect matter

Art. 1$$8 (1) 6'' sti!ulates that the su/ect matter o the contract is the legal

o!eration, such as the sale, the lease, the loan and so on, agreed y the !arties.

Art. 1$$7 (1) 6'' sti!ulates that the su/ect mater o the oligation is the eneft to

which the detor engages.

The distinction etween the su/ect matter o the contract and the su/ect matter o

the oligation is ery useul. Thereore, the su/ect matter o the contract is the same

with the su/ect matter o the ciil legal relation and the su/ect matter o the

oligation consists o the !ositie or negatie !erormance that contracting !arty

underta&es to each other.

3ithin a /uridical act, the !arties" conduct can reer to goods and thus, the toads

ecome suse-uent o/ects o the act.

n order to e alid, the su/ect matter o a /uridical act has to ulfll seen dierent

conditions re-uested y law, as ollows:

1. The su/ect matter has to eist. Law considers the su/ect matter as eisting een

i it eists in the near uture, unless it does not hae an actual eistence (e.g., the

sale o uture harest is a alid contract). A transaction in utures occurs when a

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!erson contracts to delier goods that either does not eist, or the seller does not

own them at the time o contracting. There is only one ece!tion rom this rule. t is

the case o the sale o uture inheritance, which is com!letely !rohiited y law, not

on the ground o non;eistence o the su/ect matter, ut on the ground o immoral

consideration.

the o/ect does no longer eist (at !resent), een i it has eisted in the !ast, the

su/ect matter does not ulfll this re-uirement.

$. The su/ect matter has to elong to the ciil circuit. Thus, according to the ciil

code *only the goods on the mar&et can e the o/ect o a contract+.

. The su/ect matter has to e legal or material !ossile (im!ossiilium nulla

oligatio est). The im!ossiility o the su/ect matter means the im!ossiility o

anyone to !erorm a !articular !romise. For eam!le, is not material !ossile to

alienate the moon. t is neither legal !ossile to sell goods that elong to !ulic

!ro!erty o the state.

This re-uirement is not considered ulflled i the !erormance o the contract is

im!ossile only or a !articular !romisor, ut it is generally !ossile.

For instance, a contract wherey a !art !romises to the other to !ay an amount o

8. The su/ect matter has to e ree rom legal or moral !rohiition. t means that the

su/ect matter o the act should e lawul. Law usually cannot enorce an act

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wherey the !arties !romise to do something illegal or against !ulic !olicy or

morals.

7. ach !arty has to assume his or her owns ehaior. t means that noody can

!romise someody else"s conduct. For eam!le, it is oridden to sell the goods

which elong to someody else, or to engage !erormance the !erormance o

someody else.

T#e consideration

n order to e enorceale, a legal consideration or cause must su!!ort a /uridical act.

The consideration re!resentsthe goal pursued by the parties who conclude a

particular juridical act.

The consideration is analy4ed y our /uridical literature rom two !oints o iew:

; the instant consideration, which is essentially the same in all acts o a certain ty!e#

; the intermediate or s!ecifc consideration, which is dierent rom a certain

agreement to another. For instance, the !arties who conclude a sale contract resume

the same instant consideration in all cases# the seller is interested to otain the !rice

while the !urchaser is interested to ac-uire the goods.

6eertheless, eery seller has his or her own intermediate; consideration or selling

(e.g., he or she wants to uy another o/ect with that money, or he wants to !ay a

ormer det, etc.). At the same time, eery !urchaser has his own intermediate

consideration or uying (e.g., he or she wants to use the o/ect or he wants to sell it

or a etter !rice, etc.).

n order to su!!ort a alid contract, the consideration has to ulfll seeral conditions

as ollows:

; to eist#

; to e real#

; to e non;!rohiited y law or !ulic morals (contra onos mores). For instance, a

!romise to underta&e a social oligation cannot e considered a alid one.

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The !rolem o the alidity o the consideration does not arise unless the

intermediate cause is analy4ed. The instant cause is always alid, eing an astract

one.

n act, the ciil code !roides two !resum!tions: frstly, that the consideration eists,

and, secondly that it is alid.

T#e orm

The oserance o the !ro!er legal orm is one o the alidity conditions re-uired or

concluding a /uridical act.

3ithin the common understanding, many !eo!le assume that /uridical acts should e

drawn u! in a written orm in order to e enorceale. n act, law does not usually

im!ose that. There are only a ew ty!es o /uridical acts that should e concluded in a

certain orm im!osed y law or their enorceaility.

t means that within omanian law system, the ormalism does not a!!ly as a

!rinci!le, des!ite the normal ece!tions !roided y law.

The legal rules, which sti!ulate ormal re-uirements, are diided into three main

categories as ollows:

1) orm re3uested by la" ad validitatem. This orm has to be observed for

the very validity of the act, which is compulsory. The non;oserance o this

orm Gaws the act and a later com!laining with the legal rules cannot coer the

nullity o the act.

Thereore, seeral acts are alid only when they are drawn u! in a deed stricto sensu,

meaning an authentic orm (e.g. donation, sale o land, articles o !artnershi! or

mortgage). Law also re-uires some ormal conditions or certain other acts, as it is

the case o the will (the will is alid only i it is eecuted in the accordance with the

ormalities !rescried y statute or each ty!e o will).

$) Form re3uested ad &robationem. This orm 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.

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%ometimes, the sim!le consent o the contracting !arties is enough or concluding a

alid agreement and law re-uires a written orm only or constituting eidences that

can e used within a lawsuit. am!les o such acts include insurance contract,

oluntary de!osit, lease or settlement.

Doweer, the ciil code s!ecifcally re-uests the written orm or an act with an

o/ect haing a alue oer $89 lei. @ue to the !ower o the national currency, it

means that today, the written orm is re-uested or !roing any agreement.

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T#e term

A term is a sure and future event until the beginning or the extinguishing ofa right and of correlative duty adjourns. There are two categories o terms:

sus!ensie and etinctie terms.

A sus&ensive termis one that adjourns the beginning of enjoyment of a

right and of correlative duty(e.g. the term Kwhen the detor ecomes liale or

deole duty, the so;called term o !ayment).

An e$tinctive termis one that adjourns the end of a right and of correlative

duty(e.g. the date o a creditor"s death within a lie annuity contract).

The term, either sus!ensie or etinctie, aects only the !erormance o the act, not

its ery eistence. Thereore, each o the aoe categories o tenns !roduces

dierent eects as ollows:

; the !romisor (the detor) !erorms his oligation eore the sus!ensie term

!roided y the contract, the !ayment is alid. n other words, the detor has

oluntarily renounced to the eneft o the term#

; Hntil the !ayment is not due, the creditor cannot claim the !ayment o his det

right and the detor is not liale to !ay#

; Ater the !ayment is due, the creditor is entitled to !ursue the detor (to sue) or

im!osing him to eecute his oligation#

; Hnli&e the sus!ensie term, the etinctie term rings the detor"s oligation to its

end. t means that the creditor may claim his det right and the detor is liale or

his duty#

T#e condition

A condition is a future and uncertain event, which suspends the creation or

the execution of legal obligation. A!art rom term, within condition the

achieement o the uture eent is not sure. The conditions, as modalities o /uridical

acts, can e classifed u!on many criteria.

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Along with s!ecifc eects arising rom them, there are sus!ensie conditions and

resolutie conditions.

A sus&ensive conditionis one upon which the enforceability of a contractual

right and its correlative obligation depend. t should occur eore the !arty

eecutes his oligation within the contract.

For instance, ,the urther !romise *"ll sell you my a!artment, i hae to moe in

another locality+ is a sus!ensie condition.

A resolutive conditionis one upon which the cancellation of a contractual

right and its correlative obligation depend. that condition occurs any

!erormance under the contract ta&es end.

The ollowing eam!le e!resses a !romise aected y a resolutie condition *"ll sell

you my car, ut i hae to moe in another locality, the sale is canceled+.

A condition, either sus!ensie or resolutie, aects not only the !erormance o the

act ut its ery eistence. Thereore, the condition has the ollowing eects:

; Hntil the achieement o the sus!ensie condition (!endente conditione), the

creditor is not entitled to re-uest the !erormance o the contract and the detor is

not liale to eecute it. 6eertheless, i the detor ulfls his oligation, he can claim

the reund o his !ayment ecause it was not due. n this case, he is entitle to otain

the restitution#

; ater the achieement o the sus!ensie condition (eeniente conditione), the act

ecomes a, !ure and sim!le one and as conse-uences the creditor"s right is

retroactiely strengthened#

; i the sus!ensie condition cannot e achieed, any /uridical relationshi! etweenthe !arties is retroactiely canceled#

; until the ulfllment o the resolutie condition (!endente conditione) the act has the

a!!earance o a !ure an0d sim!le one and thereore the creditor"s right is

enorceale and the detor is liale to eecute his oligation#

; ater the resolutie condition is achieed (eeniente conditione), the act is

retroactiely canceled. 'onse-uently, the !arties should return their achieed

serices, /ust as no contract had een concluded etween them#

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; i the resolutie condition cannot e achieed, the act is retroactiely considered as

a !ure and sim!le one.

Another distinction is made etween the ortuitous (causatie) condition, the /oint

(mied) condition and the willed (*!otestatie+) condition.

Firstly, a condition is ortuitous 2causative1wheneerit consists of a casual

event.

For instance *"ll lend you my umrella, i it rains+.

%econdly, a condition isjoint #mixed$wheneer it depends on one of the

parties will.

For eam!le *"ll uy your a!artment i get married until the end o the year+.

Finally, a condition is willed #potestative$wheneer it depends only on one of

the parties will.

Law allows the conditions that de!ends on the !romisee"s will (e.g., *"ll uy your

a!artment, wheneer you want to sell it+), ut !rohiits it i de!ends on the

!romisor"s will (e.g. "ll uy your a!artment, i eel li&e it).

%ince it aects the eistence o the creditor"s right and the detor"s duty,

the condition #as a retroactive efect. t means that, its achieement ma&es the

act a !ure and sim!le one (in case o a sus!ensie condition), and cancels it (in case

o a resolutie condition).

T#e tas0

A tas& is an obligation to give, to do or not to do, reuired by the grantor to

the grantee, within a gratuitous act(donation or a legacy, either e-uest or

deise). t may e re-uired to the eneft o the grantor, to the grantee"s eneft or to

the eneft o a third !arty.

An eam!le o tas&s !roided to the grantor"s eneft includes the contract wherey

the grantor re-uired to the grantee to !ay an amount o money to a third !erson.

Doweer, the tas& may neer oerta&e the alue o the git, otherwise the contract

ecomes a ilateral one.

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A tas& may e also included in a will. For instance, the deise wherey the deisor

s!ecifcally re-uests that the deisee cultiate the land that constitutes the o/ect o

the deise is a legacy aected y a tas& !roided to the eneft o the grantee.

A tas& !roided to the eneft o the third !arty is almost similar with the contract to

the eneft o a third !arty. ssentially, a contract to the eneft o a third !arty is a

contract wherey the !romise"s !rimary interest is to estow a t u!on a third !arty

(e.g. a lie insurance wherey the insurance com!any !romises to !ay a certain

amount o money to the eneft o a non;contracting third !arty i the insured !erson

die).

Hnli&e the contract to the eneft o the third !arty, a donation or a legacy aected

y a tas& sti!ulated to the eneft o the third !arty grants the grantee (e.g., the tas&

im!osed to the legatee to !ay a certain alimony to the suriing s!ouse o the

legator).

3hether the grantee does not eecute the tas&, the gratuitous act is not retroactiely

canceled, ut the grantor may reo&e it.

T4E EFFECTS OF 6U7I)ICAL ACTS

The eects o the /uridical act mean the rights and the correlative duties that

arise, modify or extinguish it. The eects o /uridical acts are identically with their

content. Thus, in order to determine the act"s eects, the content o the act (the

!arties" rights and oligations) should e analy4ed together with the !arties" will.

t means that the ollowing ste!s should e achieed:

1) to determine the eistence o the act and to !roe it through the means o

eidence#

$) to determine the act"s eects through the inter!retation o the acts" !roisions.

t should e mentioned that the content o each !roision e!resses the !arties" will

and their intention to conclude that !articular act.

n order to analy4e the content o the act"s !roisions the ollowing inter!retation

rules sti!ulated y ciil code should e osered:

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; /uridical act has to e inter!reted according to the real will o the !arties, des!ite

the literal meaning o the words

; /uridical act yields not only the eects the !arties had in mind at the time it was

concluded, ut also the eects re-uested y law or y !ulic morals

; the usual clauses o the act are considered written, unless the !arties e!ressly

orid them

; the clauses o a /uridical act are systematically inter!reted, according to the

meaning o the whole act

; wheneer a clause has two dierent meanings, it should e inter!reted that it

!roduces eects, not in the way that ecludes any eect

; doutul clauses are inter!reted according to the nature o the act #

; i a doutul clause cannot e understand otherwise, it is inter!reted according to

the customs o the !lace where the act is concluded

; doutul clauses are always inter!reted to the detor"s eneft

; the act will e essentially considered to cause the eects intended y the !arties,

no matter how general are the words used in the act

; wheneer the !arties use an eam!le within the act that does not mean they

intended to restrict their oligations at this eam!le

The eects o a /uridical act are goerned y the ollowing three !rinci!les:

a) the !rinci!le o com!ulsory orce o the act#

) .the !rinci!le o irreocaility o the act#" c) the !rinci!le o relatieness (!riacy)

o the act"s eects.

T#e &rinci&le &acta sunt servanda

The !rinci!le o com!ulsory orce o the act is e!ressed y the Latin idiom !acta

sunt seranda. ndeed, the ciil code synthetically e!resses this idea y sti!ulating

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that *the conentions legally concluded hae the orce o law etween contracting

!arties+.

Furthermore, the !rinci!le o com!ulsory orce is eectie een u!on the court o law.

For instance, the court soles the litigation etween !arties according to the legal

!roisions and also ased on the conention eisting etween the litigants.

6eertheless, law e!ressly !roides the ece!tions rom the com!ulsory orce o

the act. Thus, des!ite the !arties" will the contract ta&es end is the ollowing cases:

; the death, incom!etence, insolency or an&ru!tcy o any o the contracting !arties

terminates the mandate contract

; the contracts concluded intuitu !ersonae are generally terminated y the !romise"s

death.

T#e &rinci&le o irrevocability o t#e act

The !rinci!le o irreocaility o the act restrains the !romisor to reo&e his !romise.

This rule is a corollary o the. !reious one (the !rinci!le o com!ulsory orce o the

contract).

?y way o ece!tion, there are seeral cases where the unilateral reocation o the

act is allowed y law. For instance, law allows: 5 the cancellation o a git made y

one o the s!ouse to another

; the termination o a lease (rent) contract y the lessee, i there is no certain term

or the contract. A lease is an agreement wherey one !arty (the so;called landlord)

transers his or her right into immediate !ossession to the other !arty (the so;called

lessee) or a commonly consideration, the so;called rent

; the dissolution o a !artnershi!#

; the termination o the gratuitous mandate y any o the !arties

; the termination o a gratuitous de!osit y the de!onent

There are also seeral unilateral /uridical acts that may e merely reo&ed y their

author, such as:

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; the will. The testator may reo&e a will at any time until his or her death.

6otwithstanding, conce!tually, a will is not a true /uridical act until the testator"s

death, ecause it has no /uridical orce. Oiously, ater the testator"s death it cannot

e reo&ed anymore#

; the relin-uish o an inheritance. To reo&e a relin-uish o the inheritance means *to

acce!t the inheritance. Thereore, the conditions re-uested or reocation o the

relin-uish are the same as they are or the

; acce!tance o an inheritance (the acce!tance should e e!ressed within 7 months

rom the death o the !erson inherited and the inheritance should not to e

!reiously acce!ted y another heir)#

T#e &rinci&le o &rivacy o t#e act

According to the !rinci!le o relatieness (!riacy) o the act"s eects, the eects o a

/uridical act are !roduced strictly etween the !arties o the act (!romisor and the

!romisee). Dence, a !lainti can maintain a lawsuit only against the !arty with whom

the contract has een concluded.

n order to understand that !rinci!le, the ollowing asic notions hae to e

e!lained:

; !arty (the so;called *contracting !arty+ in case o a ilateral act)#

; third !arty#

; interested !arty.

A *!arty+ is a !erson who concludes a /uridical act, either reerred to as an *author+

(in case o a unilateral act), or as a *contracting !arty+ (in case o a ilateral act).

@e!ending on the nature o the act, the !arties can hae s!ecifc names: grantor;

grantee, legator;legatee, assignor;assignee, argainer;argainee, leasor;easee,

landlord;tenant, endor;!urchaser, consignor;consignee, deisordeisee, mortgagor;

mortgagee, etc.

From a /uridical !oint o iew, a .+!arty+ can e a single !erson or grou! o two or

more !ersons, whether they hae the same interest within the act.

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Hniersal successors and successors with uniersal title are interested !arties in any

act concluded y the deceased ecause they inherit the !atrimony as it is (e.g.

decreased y e!ensie gits). Thus, een i they were not !arties o the act, due to

their inheritance right, they ecome interested !arties. t should e mentioned that,

there are cases where law allows to a s!ecial category o heirs to aoid the gratuitous

acts made y the deceased.

$. %uccessors with a !articular title

A successor with a !articular title is a !erson who ac-uires a certain enorceale

right, y any lawul transer. For instance, such !ersons are the !urchasers, the

assignees, the heirs who inherit a s!ecifc right. The transerees are interested

!ersons only related to the acts which ulfll certain conditions as ollows:

; the act is !reiously concluded#

; the transer

; the act reers to the right ac-uired y the transeree.

3e em!hasi4e that the transeree can e either a !arty (in the act wherey he or she

ac-uires the right), or a third !arty (in the act which has another o/ect than the

ac-uired right).

Sim&le creditors

A creditor is a !erson to whom an oligation is due. According to law, the creditor has

the right to demand and to e recoered y a certain !erormance o his detor. The

creditors who are entitled to a lien (e.g. a charge, holds or claims u!on the !ro!erty

o another as security or some det or charge) are generally reerred to as secured

creditors. A!art rom them, there are some creditors who hae no such guarantees,

&nown as sim!le creditors.

nasmuch as their claims are unsecured, the sim!le creditors are interested !arties in

any /uridical act made y their detor, ecause such acts may inGuence the

!romisee"s solency. Thereore, law allows them to aoid the gratuitous acts

concluded y their detor with the iew to /eo!ardi4e the creditors" rights.

Let"s ta&e the ollowing eam!le: we su!!ose that M owns 899,999 to N.

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There is considered real ece!tion to the !rinci!le o relatieness eects o the act

the so;called contracts to the eneft o a third !arty (e.g. lie insurance contract).

?ut, the uniersal successors and successors with uniersal title, as well as the

sim!le creditors are. considered a!!arent ece!tions rom aoe mentioned

!rinci!le.

T4E NULLIT+ OF 6U7I)ICAL ACTS

)e-nition

An act concluded "it# t#e observance o legal rules is a valid act/t can e

enorced under the contracting !arties and can !roduces its legal eects sti!ulated

y law. ?ut, "#enever! t#e legal &rovisions are not observed and t#e act

disregards certain legal e$&ressed rules! t#en t#e act is void or avoidable/

It means t#at! an act concluded against la" is sanctioned t#roug# a s&eci-c

civil sanction! t#e so8called nullity/

The nullity is that /uridical means which de&rives t#e act o its efects. t should

e mentioned that, within omanian legal system, the conce!t o *nullity+ does not

destroy the act itsel, ut only its eects. Thus, nullity is not seeing as an organic

state o the act. t is only a sanction due to the non;oserance o legal rules at thetime when the act was concluded.

The nullity ulflls a !reentie unction, ecause the !arties rerain rom concluding

an unlawul act. ?ut, when the acts are concluded without the oserance o legal

rules, then the nullity has a !unitie unction.

t should e noted that the nullity a&&lies rom t#e moment "#en t#e act "as

concluded 2e$ tunc1 and conse3uently t#e &arties are restored to t#e

&ositions &rior to t#eir agreement. t is /ust as no act has een eer concluded

etween them.

6eertheless, the nullity is dierent rom dissolution or rescissiono the contract,

which !resu!!oses a alid act that cannot !roduce its eects any more due to

s!ecifc eents.

Thus, the nullity su!!oses that the act was deectiely created, against law and as

result has neer eisted.

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Classi-cation o nullities/

a1 T#e absolute and t#e relative nullity/

An act concluded disregarding the legal !roisions could e oid or aoidale,

according to the nature o the interests !rotected y nullity.

%hen the interests protected by nullity are public interests, the act is null

and void. &t means that the nullity is absolute.

&f the protected interests are private, the act is only avoidable and the

nullity is relative.

A oid act is not enorceale y anyone. t is a null act or an act haing no legal orce

or alidity ecause it was concluded disregarding the statutory !roision o law. The

ollowing reasonscall the asolute nullity o an act:

; when one o t#e validity condition o t#e act is missing#

; whent#e ob,ect or consideration is &ro#ibited by la"or !ulic morals#

; when t#e act #as been concluded by raud and evasion o la"#

; in case o activities &erormed by a com&any beyond t#e &o"ers

conerredu!on it y its articles o association or other constitutie deeds (&nown as

ultra ires acts)#

; when a s&ecial &ermission re3uested by la" or t#e transactionis missing#

; in case theorm re3uested ad validitatem by la" #as not been observed.

An aoidale act has an in;etween status. t means that it can ecome a alid act

ecause one or more o the !arties hae the !ower to render it enorceale.

For eam!le i the lac& o genuine assent (error, mista&e, duress or in/ury) occurs

within the conclusion o the act, it can e aoided.

This classifcation !resents a !articular im!ortance ecause o the dierences

etween the rule goerning the oid and the aoidale acts. Thus:

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1. Anyody may claim to ma&e null and oid a /uridical act. n a such as it is a high

degree o irregularity, law draws no limits in enorceaility o the right to sue.

?y contrary, only the interested !ersons may aoid an act (e.g. the !arty whom

consent was aected y one o the ices o consent).

$. The asolute nullity can e claimed anytime# there are no limits in time or

claiming an act to e null and oid.

As ar as the relatie nullity is concerned, a !arty who enefts rom nullity can claim

the aoidance o the act only within a s!ecifc limit o time, the so;called etinctie

!rescri!tion (the general time o etinctie !rescri!tion is < years).

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t is oious that an act null and oid or aoidale cannot !roduce any eects in the

uture (e nunc). As or the !ast (e tunc), the eects should e retroactiely

eliminated.

The nullity or aoidance o an act is goerned y three !rinci!les:

; !rinci!le o retroactiity. The rule is that an act null or aoided cannot !roduce

eects in the uture, and the eects already !roduced will e eliminated.

the !arties o the act hae not ulflled their oligation until the nullity is

estalished, the /udge declares within the nullity the ineectieness o the act. ?ut,

when the !arties hae total or !artial ulflled their oligations, the /udge declares

within the nullity or the aoidance o the act the retroactie elimination act"s

eects. 'onse-uently, the !arties are liale to return each other the serices already

carried.

6eertheless, this !rinci!le has its ece!tions. An eam!le would e the case o a

!utatie marriage

; !rinci!le o restoring the !arties into their !ositions eore the contract (restitution

in integrum).

ce!tions to this rule include the right o the ona fde ac-uirer (i.e., the ac-uirer in

good aith, haing no &nowledge that the act is deectie) to maintain the enefts

yielded y the goods ac-uired on the asis o a null act.

; !rinci!le o cancellation o accessory acts. t means that the nullity or aoidance o

the act also aects the suse-uent acts concluded on the asis o a null act.

This !rinci!le re!resents an ece!tion o the rule .that an accessory act has the same

destiny as the !rinci!al act has (accesorium se-uitur !rinci!ale). t should ementioned that the case o a good aith tenant is an ece!tion to this !rinci!le.

This classifcation !resents a !articular im!ortance ecause o the dierences

etween the rule goerning the oid and the aoidale acts. Thus:

1. Anyody may claim to ma&e null and oid a /uridical act. nasmuch as it is a high

degree o irregularity, law draws no limits in enorceaility o the right to sue.

?y contrary, only the interested !ersons may aoid an act (e.g. the !arty whomconsent was aected y one o the ices o consent).

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$. The asolute nullity can e claimed anytime# there are no limits in time or

claiming an act to e null and oid.

As ar as the relatie nullity is concerned, a !arty who enefts rom nullity can claim

the aoidance o the act only within a s!ecifc limit o time, the so;called etinctie

!rescri!tion (the general time o etinctie !rescri!tion is < years).