ro fr
universul juridic magazin
Revista Română de Drept Privat

Contractual liability and the system of remedies for non-p erformance of contractual obligations

In the current legislative context, the notion of contractual liability should be understood as encompassing all remedies which the law provides to the creditor with a view to restoring the interest harmed by the debtor’s non-performance of their contractual obligation. These remedies, inferred from Article 1.516 of the Civil Code, may enable either the specific performance of the duty or the payment of damages, or the creditor’s discharge from the performance of their own duty, by way of determining total or partial ineffectiveness of the contract (termination for breach and reduction of duties). Thus understood, contractual liability is not synonymous with the equivalent performance of the contractual obligation (damages). This form of performance is only one of the remedies which, taken together, make up contractual liability. The forms of civil liability present similarities of aims and functions, but do not have the same legal nature. While tortuous liability is a legal relation of obligation which arises out of the commission of a tort, contractual liability overlaps with the constraint element of the pre-existing legal relation of obligation, flowing from the contract, or – which is the same – with the substantive right to action associated with the creditor’s right. This view implies accepting a structural dualism of the obligation, the explanatory value of which exceeds the domain of contractual liability, constituting the seed for a set of theoretical instruments which are useful, for example, in the matters of limitations and securities. The general substantive requirement of contractual liability is non-excused non-performance of the obligation, as per Articles 1.350 and 1.516 of the Civil Code. Non-excused non-performance is not synonymous with culpable nonperformance within the meaning of Article 16 of the Civil Code. The Romanian Civil Code system of excuses for non-performance is modelled, to a significant extent, after the Civil Code of Québec, which operates with an antithetical design of the concepts of force majeure (which includes the casus, as well as assimilated events) and fault. In the Romanian Civil Code, this antithesis is absent as a result of the specific meaning attributed to fault along the lines of post-war jurisprudential tradition and of the influences exerted, over time, by the science of criminal law. These circumstances lead to the existence of cases where nonperformance of the obligation is not excused, but where there is also no fault within the meaning of Article 16 of the Civil Code. The distinction between non-excused non-performance and culpable non-performance enables an interpretation of Article 1.530 of the Civil Code in light of the differences between obligations of results and obligations of best endeavours. Considering, strictly, the meaning which Article 16 of the Civil Code attributes to fault, contractual liability in the particular form of damages is objective in the case of obligations of results and subjective in the case of obligations of best endeavours. Finally, the analysis of excuses for non-performance, taking into account the models employed for the drafting of the Romanian Civil Code and the evolution of the relevant provisions during the legislative process which preceded the enactment of the Code, entails a number of conclusions with regard to the theory of contractual risks and termination for breach. Specifically, termination for breach and the reduction of duties (there are arguments, in addition, for damages meant to substitute an impossible reduction of duties) are not prevented by the excuses for nonperformance which consist of fortuitous events the consequence of which is the (fortuitous) partial or temporary impossibility to perform. Through this paper, the author aims to contribute usefully to the development of the arena for debates concerning the new fundamental structure of Romanian private law, with such debates being indispensable to improving the interpretations of the Civil Code and even the Code’s provisions.