The conclusion of the contract from the perspective of the new civil code

• Author: Stanciu D. Carpenaru
• Position: Professor, Ph.D., Faculty of Law, 'Nicolae Titulescu' University, Bucharest, Romania
• Pages: 7-18

Stanciu D. Carpenaru

7

LESIJ NO. XIX, VOL. 1/2012

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THE CONCLUSION OF THE CONTRACT FROM THE PERSPECTIVE

OF THE NEW CIVIL CODE

Stanciu D. C;RPENARU*

Abstract

The New Civil Code regulates in large the general rules regarding the conclusion of the

contract. These rules regard the formation of the contract, between parties that are either present or

at a distance. The rules in question have as foundation the classical principles regarding the

formation of the contract and also reflect the realities of the modern society.

Keywords: offer to contract, offer's acceptance, offer's withdrawal, acceptance withdrawal,

offer's ineffectiveness, closing of the contract

1. Having as basis the dogma of will autonomy, The Romanian Civil Code of 1864 did not

regulate formation of contract. Such loophole was partially covered, by The Commercial Code of

1887, which, in art. 35-39, regulated the conclusion of contract ”between remote persons”.

Taking into consideration this reality, the new Civil Code comprehensively regulated the

general rules of form and contract (art. 1182-1203). These rules regard the conclusion of contract

both between present persons and between absent ones.

The rules established by The Civil Code rely on the classic principles of contract conclusion,

yet considering also the realities of modern society.

2. The contract is the will agreement between two or more persons intending to constitute,

modify or terminate a legal relation (art. 1166 of The Civil Code).

Any natural or legal person may freely manifest their will, according to their interests, it being

possible for them to conclude any contract, with any partner and having the contents the parties have

agreed on, within the limits imposed by the law, public order and good customs.

Concluding the contract means, in essence, reaching the parties’ will agreement on the

contractual clauses.

The contract is concluded by the parties’ simple will agreement, if the law does not impose a

certain formality for its valid conclusion, such as in the case of real and solemn contracts.

Will agreement, which signifies the conclusion of the contract, is achieved by th e concordant

match of an offer to contract with the acceptance of such offer1. To this end, pursuant to art. 1182 of

The Civil Code, the contract shall be concluded by its negotiation by the parties2 or by acceptance

without reference of an offer to contract.

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* Professor, Ph.D., Faculty of Law, “Nicolae Titulescu” University, Bucharest, Romania (e-mail:

carpenaru_stan@yahoo.com).

1 See C. St<tescu, C. Bîrsan, Civil Law, General Theory of Obligations, 9th Edition, revised and enlarged,

Bucharest, Hamangiu Printing House, 2008, p. 37

2 On contract negotiation, see Gh. Piperea, Introduction in Professional Contract Law, C.H. Beck Printing

House, Bucharest, 2011, p.86 and the next; Mariana Buric, Legal Aspects of Contract Negotiation, in Revista de drept

comercial no. 11/2004, p.114 and the next; IvaniYa Goicovici, Progresive Formation of Contract – Notion and Scope,

Walters Printing House, Bucharest, 2009; S. Deleanu, Letters of Interest, in Revista de drept comercial no. 1/C 995, p.

110 and the next.