IDEAS home Printed from https://ideas.repec.org/a/pmu/cjurid/v49y2012p86-96.html
   My bibliography  Save this article

L’Inefficacité Des Clauses Vexatoires Dans Le Nouveau Code Civil Roumain

Author

Listed:
  • Juanita GOICOVICI

    (Chargée de cours, docteur en droit, Faculté de Droit de l’Université “Babeº-Bolyai” de Cluj-Napoca, ROUMANIE.)

Abstract

The 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.

Suggested Citation

  • Juanita GOICOVICI, 2012. "L’Inefficacité Des Clauses Vexatoires Dans Le Nouveau Code Civil Roumain," Curentul Juridic, The Juridical Current, Le Courant Juridique, Petru Maior University, Faculty of Economics Law and Administrative Sciences and Pro Iure Foundation, vol. 49, pages 86-96, June.
  • Handle: RePEc:pmu:cjurid:v:49:y:2012:p:86-96
    as

    Download full text from publisher

    File URL: http://www.upm.ro/facultati_departamente/ea/RePEc/curentul_juridic/rcj12/recjurid122_8F.pdf
    Download Restriction: no

    More about this item

    Keywords

    unfair clauses; consumer; nullity; invalidity of contract; New Civil Code.;

    JEL classification:

    • K - Law and Economics

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:pmu:cjurid:v:49:y:2012:p:86-96. See general 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) or (Christopher F. Baum). General contact details of provider: http://edirc.repec.org/data/feuttro.html .

    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.

    We have no references for this item. You can help adding them by using 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 RePEc Author Service 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.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.