Academic journal article Contemporary Readings in Law and Social Justice

New Regulations concerning the Contractual Risk in Internal Legal Circuit

Academic journal article Contemporary Readings in Law and Social Justice

New Regulations concerning the Contractual Risk in Internal Legal Circuit

Article excerpt


The failure in complying civil contract due to the will of the parties above trips, carrying the question of risk only if the obligations of result (a quantity of freight transportation to the destination specified, performing work, gathering a harvest, manufacture products, etc.) and not for the obligations of means (or diligent caution) because the latter require the debtor only correct behavior, which if followed, his performance. Fortuitous event dependent on the idea of risk can lead to total or partial obstruction, permanent or temporary duty performance, may cause damage or even total destruction of property, the material object of the obligation. The new Civil Code provisions relating to the effects of the new contract offer innovative solutions, such as: relocation translative risk in contracts with the delivery of the asset ownership, express rules for hardship and unilateral termination as a way of stopping any kind of contract concluded for an indefinite term.

Key words: contract, obligation, fortuitous failure, risk, regulations

In a mutually binding contract when one party does not want to fulfill its obligation, or it is in any other way culpable for this failure, it is natural that the other party should be released from the execution of its correlative obligation. Sometimes, because of circumstances beyond parties' control, one of the parties could be unable to fulfill its obligation. In that situation, the real issue is to know whether the other party is bound to fulfill its obligation or, in other words, who will bear the contractual risk in case of the fortuitous impossibility to fulfill the obligation on either party.

The contractual risk issue was differently resolved over time. In Roman law, mutually binding contracts were based on two independent stipulations: for example, in the sale-purchase contract, there was the stipulation under which the seller was bound to sell the asset to the purchaser and the stipulation under which the buyer was obliged to pay the price to the seller. Therefore, obligations arising from the two stipulations were also independent of one another. As a result, the fortuitous loss of the asset before delivery released the seller from obligation, but not the purchaser who still had to pay the price, meaning to bear the contractual risk, so res perit emptori, expressing the application of the maxim res perit creditori to the sale-purchase process.

In medieval law, the unjust solution from Roman law was replaced, for reasons of fairness, by the solution res perit domino. This solution has been transferred, as a rule, into the modern civil law, not in the res perit domino extracontractual expression, but in the res perit debitori contractual expression. The rule above mentioned means that the debtor of the impossible obligation can not claim from the other party to fulfill its correlative obligation, but neither the other party can claim damages from the debtor, for the obligation failure. The basis or foundation of the res perit debitori rule is the reciprocal and interdependent nature of the obligation incumbent on the contracting parties. In mutually binding contracts, each contractor's obligation is the cause of the other contractor's fulfillment of obligation. The debtor's fortuitous failure to carry out his obligation deprives of cause the creditor's obligation. In other words, the failure of obligation of one party lacks of legal support the obligation of the other, which means that that obligation will not have to be executed.

The rule according to which the contractual risk is borne by the debtor of the impossible obligation, is not formulated by the Civil Code, however the Code makes some applications of the rule, in various fields. Thus: for rental matters, if during lease, the rented thing is entirely destroyed, by unforeseeable circumstances, the contract is considered broken, which means that the lodger is not entitled to claim rent from the tenant (art. …

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