NEGOTIATED, MIXED AND STANDARD FORM CONTRACTS. A PROPOSAL FOR A NEW CLASSIFICATION OF CONTRACTS

If negotiation is considered the current manner in which contracts are concluded thereby making negotiated contracts the norm, non-negotiated terms included in contracts are an unavoidable part of everyday legal operations. Although the importance of this phenomenon in the private-law landscape has been recognized by the Romanian Civil Code through several provisions, those provisions do not address non-negotiated contracts as a whole but specific issues of non-negotiated contractual terms included in any type of contract. Firstly, with the support of the legal doctrine this article intends to examine those specific provisions of the Romanian Civil Code addressing both negotiation as a pre-contractual phase and non-negotiated contractual terms along with the particular provisions provided in the secondary legislation such as Law No. 193 of 6th of November 2000 regarding abusive terms in contracts concluded between professionals and consumers. Secondly, through this overview, the article proposes to identify the outlines of different types of contracts determined by the various degrees of non-negotiated terms in their design

NOTES ON THE ASSIGNMENT OF CONTRACT IN THE NEW ROMANIAN CIVIL CODE

Reduced to its basic functioning, the legal operation of assignment of contract implies a global transfer of the contractual position of one party, assignor, from a contract concluded with the ceded contractor, to a third party, assignee. If the legal operation as such does not seem to raise complications, it was an object of dispute in Romanian civil law even before the New Romanian Civil Code in force since 2011, considering the personal nature of the obligation relationship, especially with regard to the passive element of the obligation. Considering the debates around this topic in the legal doctrine of the Romanian Civil Code of 1864 and following certain arguments advanced in French civil law, the New Romanian Civil Code explicitly recognizes the assignment of contract as a distinct legal figure with specific effects in Articles 1315-1320. This article intends to analyse the legal regime of the assignment of contract, from the debates in the legal doctrine around this topic in both Romanian and other legal systems to the specific legal provisions which address the assignment of contract, starting with the notion of assignment of contract, the form of the assignment, the moment in which the assignment occurs, the effects the transfer has on the assignor, the legal exceptions which can be formulated by the ceded contractor and the warranty obligations of the assignor

A Comparative Inquiry Into The Legal Regime Of Mortis Causa Donations In Some Continental-European And Common Law Legal Systems

Abstract The mortis causa donation is a particular form of donation, made in the anticipation of death. Its regime was subjected to particular different norms in some continental-European legal systems, such as the French and the Romanian ones, and in some common law legal systems, such as the English and the American ones. This article investigates in a comparative manner the different legal solutions regarding the status of mortis causa donations in French and Romanian legal systems, on one hand, and in the English and American legal systems, on the other. Although in the history of French law the donation mortis causa was recognized under the customary norms of the ancien droit, contemporary continental-European legal systems do not recognize an intermediary gratuitous act between testamentary provisions and donation contracts, while in the common law legal systems the mortis causa donation is recognized as a particular form of gratuitous transfer, but it has different legal effects in English and American legal systems.</jats:p

A COMPARATIVE INQUIRY ON THE MATRIMONIAL DONATIONS IN THE FRENCH AND ROMANIAN LAW

This article analyses in a comparative manner the legal regime of the donations related to the marriage in the French and in the Romanian legal systems. In the French Civil Code there are detailed provisions of the donations made in relation to the marriage, which cover a broader area of donations than the provisions in the Romanian Civil Code which refer only to the donations between spouses. </jats:p

The Return Of The Property Clause In Donation Contracts – A Comparative Analysis In French And Romanian Legal Systems

Abstract In both French and Romanian legal systems, the special irrevocability which governs the field of donations presupposes that certain clauses cannot be stipulated in the donation contract. Such clauses, which are prohibited as incompatible with the principle of the irrevocability of donations, would allow the donor to unilaterally revoke the contract. This article is concerned, on the one hand, with the origin and the evolution of the special irrevocability of donations and, on the other hand, with the compatibility of the return of the donated good clause with the principle of irrevocability of donations. The return of the property clause will be analyzed in a comparative manner in French and Romanian legal systems by looking at the provisions of the French Civil Code, 1865 Romanian Civil Code and of the contemporary Romanian Civil Code, in order to put into perspective both similarities and differences between the civil regulations of the two legal systems, but also the changes within the Romanian civil law from the previous Civil Code to the current one.</jats:p

The Legal Frame of the Gift in Ideal Contexts of Authority

AbstractThe anthropological discourse on the gift repeatedly underlines the impossibility of a free gift. This seems to be a truly universal, trans-cultural and trans-historical fact, since the gift always follows the unavoidable Maussian obligations to give, to receive and to reciprocate – every gift implicitly demands a gift in return. From this anthropological perspective, the gift plays a major role in establishing personal ties between people. However, this been said, it does not imply that the personal ties are only between equals – for instance, potlatch is a gift used to establish status hierarchy among people, a gift of rivalry in which the one who receives a gift is obliged to respond with another gift of a greater value. In this article I intend to analyze the way in which legal rules that apply to donations manage to deal with gift's anthropological function in the context of authority and hierarchy, since the civil laws in European-continental legal family explicitly state that donations are unilateral and gratuitous acts, contradicting the anthropological discourse. In analyzing the function of legal provisions of the gift in the context of authority, I will use Alexandre Kojève's classification of subjects of authority – Master, Judge, Leader and Father – in order to see the way in which the gift functions in these ideal-type power relations and the role of the gift law in these particular symbolic contexts

Nemo potest venire contra factum proprium. The coherence principle in European contract law

The coherence principle was elaborated by the legal scholar Dimitri Houtcieff in the field of contract law of the French legal system as an instrument for overcoming those contradictions regarding the contract or the contractual behavior which may be damaging for the other party or even for third parties. The coherence principle relies on the hypothesis that a contract, as the agreement of the parties, is a coherent system, and that whatever contradictions it may contain are irreducible oppositions within the system, deriving either from certain explicit provisions in the contract or from the behavior of the party, which can affect the dynamics of the contract in various ways. The article intends to elaborate on the notion of contractual contradiction as it was developed in the French doctrine, to analyze such contradictions in the French contract law and to verify, on the one hand, if there can be established any relation of equivalence between the legal notions employed in the French legal doctrine and the Romanian one, and, on the other hand, if the coherence principle may prove to be applicable in the Romanian contract law as an equally useful tool

Legal Limitations of the Anthropological Notion of the Gift in Roman Law

AbstractThe gift from an anthropological perspective differs from the rigid civil notion of donation, which presupposes an unilateral, gratuitous transfer from one person to another. The anthropological notion of the gift includes all gratuitous transfers, either material or non-material. Therefore, the relation between the anthropological notion of the gift and the legal notion of donation is one of inclusion. However, limitations imposed on donations in Roman law follow the same logic of the legal limitations on other gratuitous transfers such as the ones prohibited by leges sumptuaria. In this article I will analyze the reasons behind the legal interdictions in Roman law on some gratuitous spending, including donations between spouses, the ones prohibited by Lex cincia de donis et muneribus and by leges sumptuaria, interdictions that deal with the anthropological function of the gift in the greco-roman world