Academic journal article Contemporary Readings in Law and Social Justice

The Passenger Transport Contract in the Civil Code

Academic journal article Contemporary Readings in Law and Social Justice

The Passenger Transport Contract in the Civil Code

Article excerpt

ABSTRACT.

Before the New Civil Code came into force, the passenger transport had not benefited from the general rules governing this activity, the legal framework being set by the special rules enacted separately for each mode of transport. Without prejudice to specific provisions, the new regulation now provides the general legal framework for the conduct of this activity.

Keywords: transport contract, carrier, traveler, passenger, liability

1. Introductory Specifications

The new regulation has created, by self-contained provisions, the general framework applicable to the legal relations established in the passenger transport activity. The provisions of the Civil Code1 apply to any passenger transport contract, regardless of the mode of transport, provided there are no other provisions settled by special laws or practices according to the systematic interpretation of the rule "specialia generalibus derogant" (article 1958, paragraph 1 of the Civil Code). In the category of special laws there have to be included the uniform regulations ratified by Romania in the field of transport. In this sense, article 140 of Law no.71/20112 provides that these regulations shall prevail over the provisions of the Civil Code. The Civil Code envisages, in particular, the movement activities by onerous title. The free transport may be governed by the new provisions only to the extent that they would be offered, exceptionally, by the carrier, in his professional activity (article 1958, paragraph 2 of the Civil Code).

2. The Structure of the Passenger Transport Contract

The legal definition of the passenger transport contract is found in article 1955 of the Civil Code. Referring only to the transport of people, we can define this contract as the agreement by means of which the carrier undertakes, in full title, to carry passengers, from one place to another, in exchange for a price. The valid conclusion of the passenger transport contract requires, like any other agreement, the compliance with the content and form conditions prescribed by the law. Article 1179 of the Civil Code provides for "the essential conditions for the validity of the contract," establishing both the content and form conditions, where the law requires a certain contract form.

The content conditions, i.e. the capacity to conclude a contract, the consent of the parties, a certain lawful object, a legal and moral issue, are analyzed by the rules of the common law, which is supplemented by certain elements in relation to the specific operation concerned. Thus, in addition, regarding its capacity, as the main subject of the operation, the carrier is required to be a professional within the meaning of article 3, paragraph 2 of the Civil Code.3 However, the contractual partner's capacity has no special importance.4 It is generally considered that, for people, these contracts have the legal value of small acts that can be also concluded by persons lacking legal capacity. Some features also appear in relation to the expression of the will to conclude contracts. According to the legal provisions in this field, the carrier who provides its services to the public must, in principle, respond to any request to make a transport. The form of the consent in this field is based on the idea that the carrier is in a state of permanent offer addressed to any person who can call on it. Basically, the carrier can not refuse any request unless it has a reason for refusal (article 1958, paragraph 3 of the Civil Code). For this purpose there are the special provisions regarding the carrier's possibility to deny or to accept the transportation in certain circumstances, in cases stipulated by the special legislation5. Under the principle of mutual consent, the mere agreement of the wills manifested creates the contract. Given the consensual nature of this contract, the written form is not a condition of validity (Article 1956 of the Civil Code). However, the original nature of the passenger transport contract involves the carrier's general obligation to issue a transport document6. …

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