Academic journal article Contemporary Readings in Law and Social Justice

Several Theoretical and Practical Aspects of the Transportation Contract: The Reglementation within the New Civil Code

Academic journal article Contemporary Readings in Law and Social Justice

Several Theoretical and Practical Aspects of the Transportation Contract: The Reglementation within the New Civil Code

Article excerpt

ABSTRACT.

The Civil Code obviously represents an important source for the transportation law. The common law insures the general principles of law applicable within this special area. The transportation law is using general notions from all types of law but there are also existing derogatory regulations of interest for this area. According to the dispositions of the New Civil Code, the transportation contract is a special civil contract, granting the legal basis which is common to other contracts of the private law area also, but with its specific particularities and autonomy.

Keywords: transportation contract, transporter/carrier, sender, recipient

Introduction

The general provisions that embody the rules of the common law for the transportation contract are provided for in the Romanian Commercial Code, Title XII "On the transportation contract;" they are completed under article 1 by the provisions of the Civil Code, which is the civil source of the transportation contract. These regulations, which have the nature of general law, are applicable regardless of the means of transportation, provided that there is no specific provision derogating from the general rules imposed by the specificity of each type of transport.'

At present, each type of transportation contract is governed by specific rules, which are determined in time by the particularities of each means of transportation; however, these contracts are basically civil contracts with certain specific "common characters, with certain principles induced by the autonomous and specific nature of this legal institution that allows such a separate scientific analysis in a general theoretical approach."2 Moreover, even the new regulation of the transportation contract, which we intend to examine in what follows, underlines, once again, the civil nature of the transportation contract.

The need for a uniform regulation of the legal relations of private law and the elimination of the dualism between the Civil Code and the Commercial Code determined the inclusion in the New Civil Code3 of as many contracts as possible, including those reserved exclusively for traders.4 Thus, in relation to the new regulation, the transportation contract is considered a special civil contract, being regulated in the Chapter reserved to special contracts, together with the currently regulated civil contracts5 and with the newly inserted commercial contracts.6

Unlike the currently existing texts in the Civil Code, which refer to the transportation contract only in isolated articles,7 the New Civil Code8 reserves it a major section, outlining a general regulation, able to provide solutions not only to the aspects which are not regulated by means of the special legislation incident to the different modes of transportation, but also to the interpretation of the contractual terms, when necessary. In addition, the new provisions will be applied "to the extent not otherwise provided by special laws, or if there are no applicable usage or practice established between parties."9

Defining the Transportation Contract

Art. 413 of the Commercial Code provides that "the legal operation of the transportation contract takes place between the sender or the one who gives the assignment of the transportation of an item and the entrepreneur who undertakes to make it on his own behalf and on the expense of another or between one of them and the carrier who takes upon himself the task of doing it. The carrier is the person who takes the assignment to transport or to arrange the transportation of a certain object, in any means."

This definition of the transportation contract has not been without criticism in the literature, being seen as "an amalgamated text, which refers into a single and ambiguously, worded sentence both to the transportation contract and to the dispatch agreement."10 It was also considered that the definition of the Commercial Code is "vague in defining the parties to the transportation contract and the transport operation in general. …

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