A Comparative View on Regulating the Transaction Agreement

Author:Georgeta-Bianca Tarita (Spirchez)
Position:PhD Student, Faculty of Law and Administrative Sciences, University of Craiova, Romania
Pages:206-212
SUMMARY

Over the few decades there has been a steady growth in the conclusion of the transaction contracts, given the multiple needs it responds to-it avoids long delays and high costs associated with the legal proceeding and it ensures the removal of doubt as regards the legal proceeding result. It is the purpose of this article to provide a comparative analysis over the legal regulation of the... (see full summary)

 
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European Integration - Realities and Perspectives
2012
206
A Comparative View on Regulating the Transaction Agreement.
French, German and British Law
Georgeta-Bianca T (Spîrchez)
1
Abstract: Over the few decades there has been a steady growth in the conclusion of the transaction contracts,
given the multiple needs it responds to-it avoids long delays and high costs associated with the legal
proceeding and it ensures t he removal of doubt as regards the legal proceeding r esult. It is the purpose of this
article to provide a comparative analysis over the legal regulation of the transaction contract in several
European member states and to examine the legal changes brought by the New R omanian Civil Code. In
order to achieve these objectives, we have examined the national and foreign legislation and doctrine,
confirmed by the case law. Therefore, this study contributes to knowledge of the defining aspects of the
transaction contract at European level, following the crystallization of the legal concept and its normative
evolution.
Keywords: settlement, compromise, mutual concessions, judgment by consent, alternative dispute resolution
1. Introduction. Practical Importance of the Transaction Agreement as an Alternative
Way of Dispute Settlement
Seen as a remedy to the state justice imperfections, the conclusion of the transaction contract is today
one of the increasingly spreading phenomenon, being used by the parties seeking to extinguish the
litigiousness right disputed by them, based on mutual concessions.
There have been identified (Jeammaud, 2006) a number of philosophical and especially civic virtues
of this type of agreement: the parties do their own justice, in the sense that the protagonists get back to
being partners and agree somehow to do each other's justice, without resorting to court proceedings.
The French doctrine (Malaurie, Aynes & Gautier, 2007) defines the utility and complexity of this legal
instrument in a suggestive way by the formula “a poor arrangement is worth more than a good
lawsuit” („un mauvais arrangement vaut mieux qu’un bon procès”), this because “a legal agreement is
more acceptable and less dramatic”. This is natural, as long as a free and mutual consent requires a
higher degree of acceptance than in the case of imposing a legal order. Settlement of disputes by
courts should be regarded as a last resort, for as long as the subjective law protection can be made by
agreement of the parties.
Thus, the interest in the transaction agreement is not surprising at all, given the multiple practical
needs it responds to, as this is a solution required in nowadays practice especially to avoid long delays
and high costs associated with legal proceedings, i.e. removal of doubt as regards the legal proceeding
result.
In UK, in the “Review of Civil Litigation Costs” carried out by Lord Justice Jackson, the Final Report
issued in December 2009, included as recommendation the view that in general the alternative dispute
resolution (ADR) has a vital role to play (Blake, Browne & Sime, 2011).
1
PhD Student, Faculty of Law and Administrative Sciences, University of Craiova, Romania, A ddress: 13 A. I. Cuza Str.,
Craiova 200585, Romania, Tel.: +40 251 414398, fax: +40 251 411688, Corresponding author: bianca.tarata@gmail.com.

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