Aspects concerning the joint venture under the regulation of the new civil code

• Author: Ana-Maria Lupulescu
• Position: Law Department, Bucharest University of Economic Studies, Romania
• Pages: 127-132

ASPECTS CONCERNING THE JOINT VENTURE

1 UNDER THE REGULATION OF THE

NEW CIVIL CODE

Lecturer Ana-Maria LUPULESCU2, PhD.

Abstract

The New Civil Code makes the transition, for the first time in the Romania n legal system, from the dua lity to

the unity of private law. Consequently, the Civil Code conta ins a legal regulation more str uctured and comprehensive,

although not entirely safe from any criticism, in r elation to the company, with pa rticular reference to the simple

company, regulation tha t expressly cha racterizes itself as the common law in this field. Within these general provisions,

the legisla tor ha s considered the joint venture, to which, however, a s in the previous re gulation contained in the old

Commercial Code – now r epealed –, it does not devote too many lega l provisions, in order to mainta in the flexibility of

this form of company. Therefore, this appr oach a ppears particular ly useful for analysts in la w and, especially, for

practition ers, since it aims to achieve a comprehensive ana lysis of the joint venture, form of company with pr actical

incidence.

Keywords: companies, joint venture, company contra ct, juridical natur e and juridical cha racters

JEL Classification: K12

1. Preliminary considerations

By adopting the new Civil Code3 of 2011, the Romanian legislator has set an ambitious goal,

namely the establishment of a modern legislative instrument, adapted in all respects, including the

terminology, to the current economic and social realities. Equally, however, this normative act has

achieved the abandonment of the traditional division (for our system of law) of private law, in favor

of the monist approach, that integrates all regulations relating to individuals, the family and the

business relations. In this respect, art. 2 of the Civil Code states the general applicability of the Civil

Code to all categories of persons, both professionals and non-professionals, as subjects of law

within patrimonial and non-patrimonial relations, this normative act constituting the common law

for all areas of private law.

In relation to companies, in the same spirit of unification of private law, the Civil Code

contains, in Chapter VII, entitled Company Contract, of Title IX - Miscellaneous special contracts,

the general regulation applicable to all companies, according to article 1887 paragraph 1 of the Civil

Code, which is, however, to be completed with the special legal provisions relating to different

categories of companies, that have remained outside the Civil Code.

Among the forms of company prescribed by article 1888 of the Civil Code, the legislator has

also included the joint venture, providing, in articles 1949-1954, a concise regulation, which

focuses on its essentially contractual character and the flexibility that should characterize it. As a

consequence, an analysis of the legal provisions in this matter is extremely useful both for the

analysts in law and, especially, for practitioners.

2. The definition and the juridical nature of the joint venture

In accordance with the provisions of article 1949 of the Civil Code, "The joint venture

agreement is a contract by which a person grants to one or more persons a participation in the

profits and losses of one or more operations he undertakes."

Taking into account the quoted legal provision, we should define the joint venture as a

contract by which two or more persons agree that one of them grants to the others a participation in

1 This denomination do es not accurately describe the juridical instit ution – societate în participaiune, which is the object of this

analysis, because it is not regulated, under the form provided by the Romanian law, in the English or American system of law.

2 Ana-Maria Lupulescu - Law Department, Bucharest University of Economic Studies, Romania, anamarialupulescu@yahoo.com

3 Law no. 287/2009, republished in the Official Journal of Romania, Part I, no. 505/15.07.2011.