ro fr
universul juridic magazin

Special issues regarding the risks in agreements non-translative of ownership in the previous and new civil code

Despite the apparent simplicity of res perit debitori rule, applicable to risks regarding synallagmatic agreements, both the Civil Code enacted in the year 1864 and the New Civil Code (2009) hide some unsolved issues of clarity, which shed a new light over the matter regarding who should bear the inauspicious consequences of fortuitous impossibility of execution. The study tries to demonstrate, with concrete application to some special agreements non-translative of ownership, that, in reality, the real and challenging problem of risks arises only when the parties, both or one of them, have commenced the execution of the agreement.

The hidden side of the risk theory is rendered by the method used to manage the agreement in case of fortuitous impossibility of execution, as it is or not annulled in whole or partially, retrospective or just for the future. Even if this matter will be solved, the localization of the prejudice between the parties shall still depend on how the object of the obligation shall be defined and what „partial” execution means.

Finally, the regime of restitutions, when applicable, shall also render, in turn, the measure of the agreement risks, even if, paradoxically, the restitution obligations are not, from our point of view, contractual obligations, but arise from a licit legal deed.

The analysis of this array of issues, applied in correlation with some relevant provisions established for some special agreements, can complicate the assertion of a settlement, as in the case of the storage agreement, transport agreement or mandate agreement.