ro fr
universul juridic magazin
Revista Română de Drept Privat

Unenforceability as sanction under the civil Law. Introduction. Context

The civil law requires that the rights and obligations undertaken based on legal instruments produce only the effects for which these were entered into and which are allowed under the rule of law. For all other effects, which circumvent the mandatory rules or are motivated by fraudulent intents or driven in bad faith, the development of effective penalty mechanisms was deemed necessary, aiming to protect the impaired rights. The civil penalties are presented in a wide spectrum; the civil code also brings novelties in this matter, the clauses deemed unwritten being for the first time regulated by the Romanian law. However, other penalties, more traditional, have “escaped” the legislator, not being treated expressly, even though their legal regime can be shaped by analysing the regulation as a whole. Pursuing the thread of this idea and for a better understanding of the concept, the analysis of unenforceability herein is made in accordance with the following paradigm: the principles governing the contractual effects, how were these perceived in the Romanian legal environment and what are the obligation relations generated thereunder; further to this approach shall be outlined the general coordinates defining unenforceability, the legal mechanisms and actions available to lenders. Moreover, lacking explicit rules, this penalty shall be placed within the framework of loopholes that the body referred to implement the law must make up for. Beyond the inconveniences that the lack of express rules creates, this approach aims to elucidate whether there is a common law of unenforceability, the characters and the legal regime thereof as penalty under the civil law.