ro fr
universul juridic magazin
Revista Română de Drept Privat

The qualitative moment of the Agreement’s entering into. The essential elements of the Agreement

In this article we intended to analyse what is the moment of the Agreement’s entering into in relation to the provisions put forth under Article 1.182 (2) of the Civil Code and to define in terms of content the phrase “essential elements of the Agreement”. To achieve this, we tried in the first place to analyse this concept in relation to other similar ones and see how this is reflected in other encodings. Further on, the article attempts to define the meaning in the Romanian law of the phrase “essential elements of the Agreement”. The conclusion we reached was that Article 1.182 (2) of the Civil Code implies a substantive analysis of the parties’ agreement and is aimed at a qualitative moment of the Agreement’s entering into. At the same time, the essential elements of the Agreement are distinguished from its validity elements. Taking our stand upon the purpose which grounds the entering into of a specific legal instrument, we have identified the essential elements of the Agreement as being those without which the legal mandatory contractual relationship could not be enforced or voluntary executed. From our point of view, the parties’ intent to be legally bound does not fall within the category of essential elements provided for in Article 1.182 (2) of the Civil Code, but, despite the categorical wording of this rule, remains a prerequisite for the expression of one’s wishes to acquire contractual value. Finally, we argued that Article 1.182 (2) of the Civil Code has a dual legal nature, i.e. presumption and condition.