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universul juridic magazin
Revista Română de Drept Privat

The res perit domino rule in contractual terms, in between myth and reality

On the verge of enforcing the new Romanian Civil Code (2009) it appears that the rule having governed our jurisprudence and doctrine in matters of contractual risks for more than a century, „res perished Domino” is a myth. The source of this myth is reflected in the misinterpreted work of jus naturalists. Its appearance has been supported by the erroneous terminology of the French Civil Code stipulating the Obligation of „risque de la chose” terminology taken over by the Romanian Civil Code as well, the coincidence between ownership and risk for typical automatic transfers of ownership upon the conclusion of the contract and the credit insubstantially granted to pompous speeches that preceded the adoption of the French Civil Code. In reality, the archaeology of our civil code, and that of the French Civil Code, reveals a different reality which, we believe, the nineteenth century interpreters, especially Planiol and Capitant, discarded without reason, fatalistically resigning to the legislature’s confusion between labour risk and contractual risk. Article 971 of the Civil Code only regulates the hypothesis of automatic transfer of ownership by agreement, but it remains silent about the assumptions concerning delayed transfer of ownership, that is exactly about those situations where the identification of a general rule becomes practical. The innovation of Napoleon Code, the solo consensu transfer of property, merely strengthened the rule of Roman law with a new argument: the buyer bears the risk not as a creditor, but as owner.
However, in the case of synallagmatic contracts, the ownership status is irrelevant in terms of the contractual risk perspective, where the issue is judged in a binary register given by the quality of debtor or creditor. As in the case of the general rule of counterperformance risk, the exhaustion by execution of the legal relationship in its core elements is the one requiring risk settlement (art. 1020 Civil Code). In terms of sale, the obligation justifying the right price is the right to surrender the respective property. The surrender obligation was considered negligible by our legislature (Article 971 in fine Civil Code), probably considering its instrumental nature. The obligation to preserve the sold items, considered by the legislature to be a diligence duty, is deemed executed if the property is
fortuitously destroyed. Under these circumstances, the price risk must be associated with the fulfilment of the surrender obligation, which does not result in solutions identical to the criterion of ownership. If the case of actual sales, where the seller has no further obligation related to the transfer of ownership, the latter took enough measures to keep the right price. In the case of compulsory sales, when the transfer of ownership is not performed automatically, but still depends on a certain obligation of the buyer, the risk is transferred along with the performance of the urrender obligation.
This view changes the currently accepted solution related to the sale implying reservation of ownership, the sale where the transfer of ownership is affected by a suspensive term or the sale under resolutive terms, and it explains the required solution in these situations where the res perit domino adage was helpless (lawful sale of the goods of another).
Based on the limitations of res perit domino there will be no second rebirth of res perit creditors, as argued in the earlier doctrine under Art. 1074 par. 2 Civil Code. This text should be confined to the sphere of duty risks. In the essence, onerous ownership translation contracts within and especially beyond the limits of art. 971 Civil Code are also subject to res perit debtors rule, stipulating that
the surrender does not play any role in solving risk issues.