314 MARIA DUMITRU
two separate regulations for almost 150 years - the Civil Code and the Commercial
Code have not disappeared.
Seven years after this formal abolition, there are more and more acclaimed
voices supporting the need to adopt a new Commercial Code that corresponds to
the economic reality and business life specific to the 21st century.
4. Civil liability or equivalent performance? The dilemma - 150 years old - has
not been clarified by the current Civil Code.
The legal nature of the lender’s right to damages in the event of non-fulfilment
of an obligation has generated doctrinal controversies, asking whether we are in
the presence of either an enforceability of the initial obligation1, or whether it is the
execution of another obligation, that is to say, if the damage to the creditor
represents a way of fulfilling the obligation or a form of liability, or in other words
if the right to damages is an effect of the obligation or an effect of the non-
fulfilment of the obligation (ie a form of liability).
The analysis of the nature and the subject of contractual liability reveals the
clear distinction between repair and execution, between contractual liability and
execution.2 If the execution allows the creditor to obtain the object of the promised
benefit, the contractual liability has as its purpose the reparation of the damage
caused by non-execution, and the creditor’s proxy cannot be a compensation, an
5. The new Civil Code maintains the duality of tort liability3 - contractual
liability, although there are more and more voices that cast doubt on the need for
contractual liability4, arguing for a common law liability to be enforced with the
specific responsibilities of different branches of private law or - many authors - a
common law responsibility from which the liability of professionals is waived5.
1 T.R. Popescu, P. Anca, Teoria general a obligaiilor, Ed. Ştiinific, Bucureşti, 1968, p.318; E. Safta-
Romano, Drept civil. Obligaii. Curs teoretic şi practic, Ed. Neuron, Focşani, 1994, p.265, C. Sttescu, C.
Bârsan, Drept civil. Teoria general a obligaiilor, Ed ALL, Bucureşti, 1997, p.300-301; these authors
initially assert that it is an equivalent execution by showing that “by means of execution by an
equivalent is intended to obtain an amount to replace in the patrimony of the creditor the value of the
benefit to which the debtor was entitled”, then argue that the obligation arising from the contract is
replaced by another obligation resulting from the non-performance of the old contractual obligation
and which has a totally different content from that of the contract: that of repairing the damage
caused by non-performance, the initial claim being replaced by an amount of money representing the
equivalent of the injury.
2 See M. Dumitru, Regimul juridic al dobânzii moratorii, Editura Universul Juridic, Bucureşti, 2010,
3 Art. 998 of O. Civ. C. “Every act of man, which causes another injury, compels the one whose
error has occurred, to repair it”, and Art. 999 of O. Civ. C. had the following content: “Man is
responsible not only for the damage he caused by his deed, but also for what he caused by his
negligence or by his imprudence”.
4 G. Viney, Introduction a la responsabilite, ed a 3-a LGDJ, Paris, 2008, pp.35 and next.
5 The notion of “professional” has the meaning indicated by Art. 3 of N. Civ. C., non-existent term
before the adoption of the indicated normative act.