Academic journal article Contemporary Readings in Law and Social Justice

Particularities of Contractor Agreement in Civil Code Regulation

Academic journal article Contemporary Readings in Law and Social Justice

Particularities of Contractor Agreement in Civil Code Regulation

Article excerpt

1. Concept and Regulation

In the previous regulation, the contractor agreement was included in the scope of the institution of lease; thus, the Civil Code of 1864 distinguished between lease of things (locatio rei - article 1411 which defined the notion of lease, by using the term of lease of things) and lease of works (the employment contract, the contractor agreement and the transport contract - article 1413). For those reasons, the previous Code used other terms to designate the contractor, such as, depending on the situation: worker (article 1479), craftsman (article 1480), entrepreneur (article 1483) or architect (article 1483).

The new Civil Code abandons this approach, regulating under the general name of lease (article 1851-1880), what the old code considered a lease of things. Consequently, the concept of lease of works has disappeared and the employment contract, the contractor agreement and the transport contract (referred to in article 1413 of the Civil Code of1864 when it analyzed the lease of works) have been totally removed from the scope of the institution of lease (Lazăr, 2013: 118).

The contractor agreement is a contract whereby one party, the contractor, undertakes, at his own risk, to execute a certain material or intellectual work or to provide a service to the beneficiary, in exchange of a price. The general rule in the matter of the contract risk is that the risk is borne by the debtor of the obligation impossible to execute, meaning that he will not be able to claim the other party, the execution of the correlative contractual obligation, but also the other party will not be able to claim compensation from the debtor of the obligation impossible to execute, not being at fault (Lazăr, 2007: 42). In the new Civil Code, this rule is confirmed by the provisions of article 1634, applicable in principle to all agreements and with regard to transferable ownership agreements is reinforced by article 1274 par. 1. The doctrine uses the term "client" for the beneficiary (Chirică, 2007: 251).

It results from the analysis of the definition given by article 1851 Civil Code that the legislature intended to comply with the opinions constantly expressed in the doctrine published under the previous Code which mentioned the "dematerialization" of the contractor agreement (Deak, 2001: 292), in the sense of applicability of rules concerning the contract, not only to material works, but also to intellectual activities, such as professional consultations provided by a public notary or lawyer under the law governing such activities (Rudăreanu, 2006: 168). We emphasize, only in terms of consultations, as in the case of the notary, as in that of the lawyer, other professional activities are governed by other rules, such as for lawyers, legal representation, which is a form of mandate.

As for the object of the legal relationship emerged as a result of the contractor agreement, it is the obligation of the contractor to perform independently (Turianu, 1999: 292). With regard to the independent nature of the contractor's work, the author refers to Dec. no. 912/1954 and Dec.501/1957 of the former Supreme Court, published in Collections of decisions), a material work (for example, the construction of a building) or intellectual work (legal or medical advice) or to provide a service (the repair of an appliance) and to hand over to the beneficiary, the outcome of his work, performing the work at his own risk.

2.Legal Features

1.The contractor agreement is a designated agreement, expressly regulated in the current Civil Code, as in the previous one.

2. The consensual nature stems from the lack of form conditions, the mere agreement of will being sufficient to conclude the contract. Only exceptionally, the contractor agreement has solemn nature when it relates to public works, in such case, public auction being required (Motiu, 2012: 106).

3. The contractor agreement is synallagmatical, characterized by mutual obligations of the parties and by the interdependence of these mutual obligations. …

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