Adaptation of contract in case of vice of consent by error. Application before the court of article 1213 civ. c.

• Author: Emilian-Constantin Meiu
• Position: PhD Candidate, Faculty of Law, ?Nicolae Titulescu' University of Bucharest (e-mail: meiuemilian@yahoo.com).
• Pages: 34-39

LESIJ NO. XXIII, VOL. 1/2016

ADAPTATION OF CONTRACT IN CASE OF VICE OF CONSENT

BY ERROR. APPLICATION BEFORE THE COURT OF ARTICLE

1213 CIV. C.

Emilian-Constantin MEIU

Abstract

We propose further brief analysis of the substantive conditions that should be met in order to be

covered by the contract adaptation r egulated by the Romanian Civil Code art. 1213 Civ. C. By virtue

of the novelty of this institution in the Romanian legislation could be some pra ctical difficulties before

the court that we briefly consider in our work and pr opose possible solutions.

Keywords: error , nullity, contract adapta tion, consent.

1. Introduction

In regulating the error as vice of

consent the Civil Code introduced by art.

1213 a new institution, namely adaptation of

contract, as an alternative for voidability.

Usually, violation of a condition

provided by law for the validity of the

document is sanctioned b y nullity. But

nullity, although limited the application of

the principle of contractual freedom, it must

be exceptional, so it shall not work unless

the law provides another remedy to cover the

deficiencies underlying the regulated

 PhD Candidate, Faculty of Law, „Nicolae Titulescu” University of Bucharest (e-mail:

meiuemilian@yahoo.com).

1

G.A. Ilie, Consideraii asupra posibilitii aplicrii adaptrii contractului în cazul dolului în lucrarea In

honorem Cornliu Bârsan, Editura Hamangiu, 2013, p. 244-245.

2

”Art. 1432, Mantenimento del contratto rettificato, La parte in errore non può domandare l'annullamento del

contratto se, prima che ad essa possa derivarne pregiudizio, l'altra offre di eseguirlo in modo conforme al contenuto

e alle modalità del contratto che quella intendeva concludere.”

3

”Article 3.2.10 (Loss of right to avoid) (1) If a party is entitled to avoid the contract for mistake but the other

party d eclares itself willing to perform or performs the contract as it was understood by the party entitled to

avoidance, the contract is considered to have been concluded as the latter party understood it. The other party must

make such a declaration or render such performance promptly after havin g been informed of the manner in which

the party entitled to avoidance had understood the contract and before that party has reasonably acted in reliance on

a notice of avoidance. (2) After such a declaration or performance the right to avoidance is lost and any earlier

notice of avoidance is ineffective.”

4

M.W. Hesselink, G.J.P, Principles of European Contract Law, Ed. Kluwer, Deventer, 2001, p. 91.

condition that is not observed by the parties.

Also, in case that the nullity protects a

private interest, the protected person may

cover it.

1

Contract adaptation provided by art.

1213 of Civil Code seems to have its origins

in the Italian Civil Code

2

, but is very similar

with the suitable regulation of the

UNIDROIT

3

Principles. The new institution

is part of the modern orientation expressed

by the phrase favor contr actus, according to

which nullity shall not operate to the extent

that there is the legitimate interest of one of

the parties under the contract as it was

understood by the mistaken party

4

.