ro en
universul juridic magazin
Revista Română de Drept Privat

Le fondement de la resolution et de la resiliation

The meaning of the two concepts, the particularities of the synallagmatic agreements, as well as the main conceptions in relation to the basis of the retroactive termination (rezolutiune) and termination with effects for the future (reziliere), lead to the conclusion that the fault remains, under the New Civil Code as well, an element on which the termination is based. Although there is no exact superposition between the concept of unjustified contractual nonperformance and the concept of non-performance due to debtor’s fault, they still intersect to a great extent. Trying to completely exclude from the basis of the termination the idea of fault, be it presumed, on the pretext that we would be in the presence of a sort of reminiscence of the canonic law, is the expression, intentionally or not, of a rather general tendency to ignore or even to deny the Christianity’s contribution to the founding of the Euro-Atlantic culture and civilization. In this respect, not just the Christian source of the idea of fault is important, but also the efficiency of this legal concept with regard to the secularized and globalized law. As compared to the Roman law, which highlighted the concept of causality, modern law has borrowed from the canonic law the idea of fault and released it from its religious meaning. By associating liberty and responsibility, this idea allowed not only the reconstruction of the concept of legal responsibility but also, from a more general perspective, the shaping of mentalities from the Euro-Atlantic civilization, and afterwards, by means of the globalization, from the whole world. Founding the responsibility only on the concept of causality would mean denying the liberty as well as an involution towards fatalist determinism. In civil law, in criminal law (even more), in law, generally speaking, the concept of fault must always be highlighted, not due to its Christian origins, but because of its civilizing potential.