Academic journal article Contemporary Readings in Law and Social Justice

The Game and Bet under New Civil Code Provisions

Academic journal article Contemporary Readings in Law and Social Justice

The Game and Bet under New Civil Code Provisions

Article excerpt

1. Historical Backgrounds Regarding the Gambling and Betting

Historically, it is necessary to notice that the old Romanian laws contain regulations concerning gambling, the legislators' position at that time was generally hostile: the Article 1706 of the Calimach Code forbade card games based solely on chance and The Caragea Rules, in Part I, Chapter 5, considered the contracts as void when concluded by wasteful people, i.e. those who "destroy their wealth without word."1

After the 1989 Revolution, the game and the bet had for common legislation the Civil Code of 1864, and in terms of an organized practice of these activities, there were special laws such as GO no. 16/1993 on licensing fees to gambling, GD no. 181/1992 on the definition and establishment gambling offenses to the regime of practicing these games in Romania, GUO no. 69/1998 on the authorization of gambling activities approved and amended by Law no. 166/1999 and GO no. 36/2000 and GD no. 251/1999 on conditions for authorization, organization and operation of gambling.

The Civil Code of 1864 devoted three articles to the contract of gaming and betting in the Title 13 About aleatory contracts, Chapter I About aleatory contracts in general, according to which: "The law gives no action to pay a debt in the game or wager" (Article 1636); "The games that contribute to physical exercises are exempted, as follows: weapons, races on foot, horseback or by cart and the bike. However, the judge may reject the claim when the amount at stake or bet would be excessive (Article 1637) ; "The loser can not in any case pretend what he paid voluntarily, except for the cases when winner used fraud, deceit or deception (Article 1638) .

Under this rule, the doctrine, both the former and the most recent, has defined the wager as a contract whereby the parties, adopting each an opposite point of view from each other stipulates a fixed gain, remaining that the winner to be determined by assessing the event or fact which has been at stake, event that was unknown at the concluding of the contract.2

Also, despite the fact that the law did not distinguish, the distinction between gaming and betting was emphasized according to the role of the parties in making the event: if the parties, or at least one of them fulfilled an active role, even if the result depended exclusively on hazard, the contract was of gaming, and if the parties did nothing for the event, the contract was described as being at stake. Regardless of this distinction, the doctrine held that the effects of contracts covered by Articles 1636 to 1638 Civil Code of 1864 were subscribed to the following realities: the game and the wager did not produce mandatory effects and therefore the winning lender had no legal action in order to claim his/her gain (Article 1636), the loser debtor could not repeat what it has been paid voluntarily and consciously, unless the winner had used fraud, deceit or deception (thus removing the chance of gain for the other side) and the fact that, notwithstanding the obligation arising out of "games contributing to the body exercise" had a perfect character, in terms of contracts between participants in sports game, and not from other people, especially from the audience.3

2. Present Regulation Regarding the Gambling and Betting Contracts

The new Civil Code regulates within three articles (Articles 2264-2266) the gambling and betting, as subspecies of aleatory contracts. The contract of gambling can be defined as a contract whereby the parties agree to provide each other a determined gain consisting of money or property, subject to fulfillment or failure of an event or fact which depends on the strength, dexterity, intelligence or knowledge of the parties contracting or other persons, or exclusively on chance, random element that frames chances for gains or losses for all contracting parties.4

The contract of bet or wager is a contract whereby the parties who claim contradictory things shall set that the one who is right shall receive a determined gain, the winner shall be determined objectively by checking the submitted opinions of the parties. …

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