Construction And Execution Of Works Contract. Contractual Balance In The Application Of Contractual Remedies Stage

• Author: Eugen Sârbu
• Pages: 57-67

CONSTRUCTION AND EXECUTION OF WORKS CONTRACT.

CONTRACTUAL BALANCE IN THE APPLICATION OF CONTRACTUAL

REMEDIES STAGE

PhD. student Eugen SÂRBU1

Abstract

Through this study, we analyze how the regulations in the field of general theory of obligations h ave influenced

the field of administrative contracts. By the way of issuing the model of purchase agreement for design and execution of

work, adopted by the Decision no. 1/2018, the field of administrative contra cts took over the mechanisms of balancing

the contract laid down by legislation by adopting the Civil Code from 2011. Through the method of research on document

analysis, we show that, including in the field of administrative contracts, an efficient contractual relationship is dependent

on the existence of principles that allow the contract to be concluded, by providing concrete mechanisms for responding

to unpredictable situations. In the present article we will analyze ho w the administrative contract model applies the rule

“favor contractus”, the practical impact of our effort is to guide the actors involved in the development of such contracts,

so controversial in the Romanian space, by showing the concrete ways of applying the contractual remedies in balance

with the gravity of the violated obligation or the impediment involved in the fate of the contract.

Keywords: administrative contract for design and execution o f works; balance of contractua l remedies; favor

contractus; harmonizing the administrative contract with the principles of private law.

JEL Classification: K12, K23

1. Non – performance remedies of the contract

The contractual balance is defined in the doctrine as a way of reflecting a concept

corresponding to equivalence, which applies not only to the administrative contract, but also to other

matters of private and administrative law. Also, it corresponds to a principle, without being expressly

provided for by legislation, which favors the stability of the contract2. Thus, firstly, in the contract

economy, the contractual balance has an important role for achieving the interest of each party, which

has the purpose of preventing, correcting and even sanctioning excesses. This does not mean that the

obligations of the parties to a synallagmatic contract must necessarily be economically and

mathematically equivalent, but just have to be no obvious imbalance between them, and the

imbalance that has occurred after the conclusion of the contract must be remedied3.

The creditor has the fundamental right to require the debtor to voluntarily execute the

obligation stipulated in the contract or provided by law4, having the right to resort to the remedies for

non-execution provided by the Civil Code.

The contractual imbalance resulting from the failure of one of the parties to fulfill its

obligation translates into the absence of the cause of the other party's obligation due to the

interdependence between it and the unfulfilled mutual obligation. In such a case, the creditor of the

unexecuted obligation, which has fulfilled or is ready to fulfill his own obligation, is in a situation in

which he loses the motivation to carry out his contractual obligation. The creditor is found in the

hypothesis of being under the authority of “pacta sunt servanda” principle, which means that it is

required to execute his own freely assumed obligations, but faced with a lack of motivation by the

fact that the mutual and interdependent obligation of the debtor has not been fulfilled. This situation

fades his initial determination (to execute in good faith and properly all the obligations he has assumed

1 Eugen Sârbu - Faculty of Law, University of Bucharest, lawyer Oglindă & Partners, Romania, eugen.sarbu@oglindalawyers.ro.

2 I. Turcu, Tratat teoretic și practic de drept comercial, vol. III, Ed. C.H. Beck, Bucharest, 2009, p.136, apud A. Almășan, Drept civil.

Dinamica Obligațiilor, Ed. Hamangiu, Bucharest, 2018, p. 172.

3 L. P op, Solidarismul contractual şi obligaţiile părţilor în cursul executării contractelor, „Revista Română de Drept Privat” no. 1/

2017, p. 258.

4 Also see: J.L. Baudouin, Y. Renaud, Code civil du Québec annoté, 14th ed., remarks by the Minister of Justice on Art. 1590 of the

Québec Civil Code, Ed. Wilson & Lafleur Ltée, Montréal, 2011, p. 1760 ; apud I. Ninu, Rezoluțiunea și rezilierea, excepția de

neexecutare, riscul contractului. Practică judiciară și reglementarea din noul Cod civil, Ed. Hamangiu, Bucharest, 2014, p.2.