Academic journal article Contemporary Readings in Law and Social Justice

Considerations regarding the Deceit under the New Regulation

Academic journal article Contemporary Readings in Law and Social Justice

Considerations regarding the Deceit under the New Regulation

Article excerpt

ABSTRACT.

The civil code came into force on October 1st, 2011 regulates the deceit - vice of consent within articles 1214-1215. Without being essentially different from the former regulation, the new provisions bring however on one hand some clarifications upon matters argued upon in the doctrine and on another some amendments. Our study, without being exhaustive, analyzes the deceit as vice of consent according to the new civil code.

Keywords: deceit, deceitful reticence, obligation to inform, annulment, damages

1. Notion

By deceit (in Romanian dol from the Latin dolosus, dolus, deceit, fraud, bad faith) one understands the inducing one person in an error through cunning means in order to conclude a juridical act; the deceit in direct relation with the dishonesty. So, this vice of consent is also an error, but in this case the error is not spontaneous, but is provoked by the other party or by a tertiary, through deceptive (cunning) maneuvers that are used. It is vice of consent, but an illicit deed causing prejudices as well; but it is the victim's consent appreciation that is underlined to see whether it was altered and only after the civil tort is sanctioned. There shall be no deceit in the hypothesis in which one party takes advantages of the error of the other contractual party, if it is not aware of the error in which happens to be the co-signing party, because there is no intention of deceiving.

Denominated cunning (< dolosus, sly) as well, the deceit appears in an empirical acceptation as a perfidy, a guile that surprises the contractual party through a false or lying representation of the reality; so be it, the victim (etymologically rooted from the Latin victima - the animal offered to the Gods and personalizing the suffering or victus - the defeated) of the deceit cannot have a free and conscious consent.1

Regulating the deceit as vice of consent, the civil Code in article 1214 paragraph (1) establishes: "The consent is vitiated through deceit when the party falls in error provoked by the fraudulent maneuvers the other party or when the late omitted, unlawfully, to inform the contractual party upon certain aspects that must have been mentioned."

In principle, the deceit may constitute a vice of consent for any juridical act, patrimonial or non-patrimonial, unilateral or bilateral, between livings or for death cause etc.

2. The Structure of the Deceit

It is composed by two elements:

a) an intentional (subjective) element that comprises the intention of inducing error to a person in order to determine her or him to conclude a juridical act. The act of inducing the error must though constitute the condition sine qua non for concluding a deed; the intention is based on an illicit purposes. Then, the action of inducing into error must be made by bad will, what is with intention to provoke the error. In this respect the doctrine and the jurisprudence have established that provoking of the state of error without bad faith, only upon simple negligence, does not constitute a deceit. This means that the author who undertakes action (or the passive one, in the case of deceitful reticence) must realize the consequences and let them happen; in this case, the author is engaging actions with prospective intention (dolus eventualis).

If the inducing into error has been produced by negligence, the deceived party may demand damages, if case may be, but not the cancellation of the deed; as it is possible that a party, without bad faith may provoke a spontaneous error, situation in which, if this cumulates the characters of a vice of consent (the essential error) to lead to the annulment of the agreement. But there is no deceit when one of the parties is the author of an affirmation which does not correspond to the truth, being his/ herself in error.

b) a material (objective) element that consists in using the jraudulent maneuvers (fraudulent representation, deceptions, acts of cunning, skill or machinations, staging, fireworks, false statements etc. …

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