L’Inefficacité Des Clauses Vexatoires Dans Le Nouveau Code Civil Roumain
AbstractThe article focuses on the complexity of the contemporary diversification of the sanctions applicable to unfair clauses, in the context of the entering into force of the Romanian New Civil Code on October 1st, 2011, as well as on the persisting difficulties surrounding the distinction between the relative nullity of an unfair clause, the inexistence and the rescission, as potential remedies. The new regulation marks one step towards a timid convergence of the respective regimes of nullity and rescission, while in contracts concluded by consumers the judge remains able to eliminate unfair contractual terms as being “struck out” or “unwritten”. The duty of fair dealing appears as a generally applicable obligation, in the sense that the parties are subject to it from he start of the negotiations through the formation of the contract or even beyond it, through the performance of the contractual duties. Secondly, the texts of the New Civil Code forbid taking an excessive benefit from the contract when the other party is in a situation of weakness, emotional, informational or economic. We also insist on the sanction for the bad faith in Consumer Law, applicable in parallel to the new regulation of contracts, in hypotheses in which a professional party is in an advantageous contractual position resulting from the use of unfair contractual terms. The legal texts according to which a special duty of fairness is imposed on the “strong” party when consumers are not able, because of their position, their situation or their competence, to negotiate the contract or its terms, is also analysed in correlation with the repression of unfair terms by the New Civil Code, thus being enclosed the clauses which aim to create or result in the creation, to the detriment of the non-professional or the consumer, of a significant imbalance between the rights and obligations of the contractual parties.
Download InfoIf you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.
Bibliographic InfoArticle provided by Petru Maior University, Faculty of Economics Law and Administrative Sciences and Pro Iure Foundation in its journal Curentul Juridic, The Juridical Current.
Volume (Year): 49 (2012)
Issue (Month): (June)
unfair clauses; consumer; nullity; invalidity of contract; New Civil Code.;
Find related papers by JEL classification:
- K - Law and Economics
You can help add them by filling out this form.
reading list or among the top items on IDEAS.Access and download statisticsgeneral information about how to correct material in RePEc.
For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Bogdan Voaidas).
If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.
If references are entirely missing, you can add them using this form.
If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.
If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.
Please note that corrections may take a couple of weeks to filter through the various RePEc services.