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universul juridic magazin

Details related to contractual liability. Part I – Fundamentals of contractual liability

The recent doctrine of the private law in the last 150 years was seriously concerned with the concept of contractual liability, varying between its strong denial and the holistic nature of the concept. The practical reverberations of the respective theory were evidential and reflected by the case-law evolution. Without emphasizing the historical evolution of the institution and insisting on its practical valences, this study proposes to determine the logical limits of the contractual liability, as it was surprised by the current regulation (especially, by art. 1.350 and art. 1.530 of the Civil Code).The conventional and limitative perspective of the Romanian lawmaker shall prove to be the most practical among all the solutions, which could be adopted for a new codification process. Following-up with the traditional research line, this first part of the study deals with the logical and legal signification of the contractual liability, the origin of the concept, the differences preserved between contractual liability and tort liability, as well as the general conditions for invoking it. The follow-up appeals, in an equal measure, to the arguments of comparative law (intended to faithfully and correctly “replace” the institution in the background of the private contractual law), as well as to those arguments insistently and repeatedly used by the previous and subsequent doctrine to the entry into force of the new Code. The result leads to the conclusion of a formal, but stable regulation, in relation to the contractual liability – a practical version that is needed for the applied law of contracts. Such a result was necessary to correctly circumscribe the concept and to separate it from the neighboring institutions (particularly, tort liability and law of restitution).