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
.

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