General considerations regarding contractual civil liability in the new civil code

• Author: Cristina Dinu - Diana-Geanina Ionas
• Position: Assistant Lecturer, PhD, Faculty of Law, Department of Law, 'Transilvania' University of Brasov - Assistant Lecturer, PhD, Faculty of Law, Department of Law, 'Transilvania' University of Brasov
• Pages: 154-161

154 CRISTINA DINU, DIANA-GEANINA IONAŞ

GENERAL CONSIDERATIONS REGARDING CONTRACTUAL

CIVIL LIABILITY IN THE NEW CIVIL CODE

Cristina DINU

Assistant Lecturer, PhD, Faculty of Law, Department of Law,

“Transilvania” University of Braşov

cristina.dinu@unitbv.ro

Diana-Geanina IONAŞ

Assistant Lecturer, PhD, Faculty of Law, Department of Law

“Transilvania” University of Braşov

diana.ionas@unitbv.ro

Abstract:

The contract, as source of rights and obligations, has the most important consequences in day to

day life, sometimes being called “the law of given word”. Through the current paper, we aim to

analyze contractual liability given the current laws, starting from pointing out the general legislative

background and reaching the conditions for contractual liability, as well as the causes for exoneration

and the effects of contractual liability, as regulated by the new Civil Code.

Keywords: contract, contractual liability, changes of law, new Civil Code, exoneration of

contractual liability.

Introduction

The basis of modern society is social liability, which can manifest under

different forms, such as judicial liability, moral liability, political liability and

religious liability. In this paper, we will discuss judicial liability as means of social

liability, but also as a fundament of modern society, as it is extremely important

given its functions and specifics, but also because it represent the essence of law, as

a receptor of the dynamics of social life1.

Judicial liability manifests under specific and particular forms, as it applies to

different branches of law. These different forms create common traits, but also

multiple elements meant to differentiate and particularize each branch of law, as

well as the factors which attract liability, the legal regime, the specific sanctions,

1 M-L. Belu Magdo, Contractual civil liability in the new Civil Code, Hamangiu Publishing House,

Bucharest, page 1

Law Review  vol. VII, special issue, December 2017, p. 154-161

General considerations regarding contractual civil liability in the New Civil... 155

the purpose of the lawmaker and the nature of the rights and interests which were

breached2.

Thus, judicial liability is a mix of rights and obligations which arise as a result

of an illicit deed and which are managed with the help of state’s constricting force,

by applying judicial sanctions3.

Starting from the legal content of articles 1349-1350 of the new Civil Code, civil

liability is that obligation to fully repair any prejudice caused to another person. Any

person who breaches this rule to respect the general rules of conduct stated by law or by the

habits of that certain place or impairs, by his actions or inactions, the legitimate rights and

obligations of another person, is liable for any caused prejudices, as he is forced to fully

repair the prejudice.

Given the current regulation, we define civil liability as that form of judicial

liability which creates a judicial obligation relation by which a person is forced to

repair any unjust prejudice suffered by another person, a prejudice caused by its

own deed and for which that person is liable4.

Civil liability knows two forms, namely tort liability and contractual liability.

The present article aims to analyze the second form of civil liability, namely

contractual liability, as this analysis is useful in case of tort liability, considering

that both forms of liability are based on common principles and ideas such as the

repair of a prejudice caused by an illicit deed of the liable person.

On the other hand, there are plenty of differentiating elements between the

two types of liability, in order to provide contractual liability the character of civil

judicial institution, such as: the necessity of a contract in order to attract contractual

liability, the need for the generating fact of the prejudice to be committed during

the validity time of the contract. The annulment of the contract be it absolute or

relative, draws the incidence of tort liability5; thus, it is necessary that the deed be

committed during the validity period of the contract in order to cause legal effect

and attract contractual liability.

The conditions of contractual liability

As stated before, the essence of contractual liability is the existence of a

contract between the parties of the obligation relation, as the contract must be valid

between the person who suffered damage and the person who caused it. The

retroactive dissolution of contractual obligations, as an effect of the annulment of

the contract, can no longer attract contractual liability for the damage, as there is no

2 L. Pop, I.F. Popa, S. I. Vidu, Civil law course. Obligations, Ed. Universul Juridic Publishing

House, Bucharest, 2015, page 300

3 M. Costin, An attempt to define the notion of judicial liability, in R.R.D. no 5/1970, page 8

4 R. Motica, E. Lupan, The general theory of obligations, Lumina Lex Publishing House, Bucharest,

2005, page 390

5 M-L. Belu Magdo, op cit., page 43

156 CRISTINA DINU, DIANA-GEANINA IONAŞ

contractual obligation, but merely tort liability6 (since annulment most often causes

retroactive effects - ex tunc).

Also, contractual liability derives from disrespecting obligations of the contract

and the prejudice must result from the non execution of contractual obligations.

For these reasons, the interpretation of contractual clauses is of significant

importance in contractual civil liability. The contract must be widely analyzed, not

only by analyzing the clauses expressly stated by the parties, but also by

considering the consequences of these clauses, according to the law.

As a result, contractual liability is closely connected to the institution of

contract, thus there are a few issues we must mention.

Contract is an agreement between the will of several people, in order to create

a legal relation (thus giving rise to obligations or a real right) or in order to change

or end a preexisting judicial relation. The valid contract creates the premises of

contractual liability of the debtor of the unexecuted obligation, but also in case of

the forced execution of the obligations. Article 1182 of the new Civil Code regulates

the fact that a contract is concluded when the parties reach an agreement regarding

the essential elements of the contract, even if the secondary elements will be agreed

upon at a later date or the determination of secondary elements will be performed

by a third party.

This form of concluding a contract is called sufficient agreement; however, it

does not apply to the situation in which, in order to legally conclude a contract, the

lawmaker stated a certain form, such as the authentic form required for

selling/buying immobile goods.

Engaging contractual liability

In order to engage contractual liability, several conditions must be met: the

existence of an illicit deed which caused prejudice, the existence of a prejudice, the

guilt of the person who caused the prejudice and the causality relation between the

deed that generated the prejudice and the prejudice itself.

If, in the case of tort liability, the illicit deed can have different issues, in case of

contractual liability, the deed which generates the prejudice is connected with the

non execution of contractual obligation. Based on a valid contract, both contracting

parties have rights and obligations. Each party is the creditor of an obligation, thus

entitled to claim and obtain the exact fulfillment of the contractual obligation, and

the debtor must execute what he owes.

According to article 1350 of the new Civil Code, when the debtor, without any

just cause, fails to fulfill his contracted obligation, he is directly liable for the

prejudice caused to the other party, as, by this conduct, the debtor of the

unexecuted obligation violates not only the legal regulations (for example, the

provisions of article 1270 of the new Civil Code which regulate the mandatory

6 C. Statescu, C. Birsan, Civil law treaty, Academiei Publishing House, 1981, op cit., page 149

General considerations regarding contractual civil liability in the New Civil... 157

force of contract – pacta sunt servanda) but also the private regulations, which result

from the contract and its power of law between the parties. The partial execution of

an obligation is equivalent to the non execution although, in this case, we must

distinguish depending on the object of the partially executed obligation, if the

benefit is indivisible (by nature or by the parties’ convention) or divisible7.

Thus, if the benefit is indivisible, partial execution is assimilated with the non

execution of the obligation while, as for the divisible obligation, the court of law

can appreciate the extent to which the obligation was executed, thus diminishing

the damage the debtor must pay to the creditor8.

The situation of the improper execution of obligations is also assimilated to

contractual non execution, which entails the fulfilling of the obligation either by

disrespecting the contractual clauses, or by disrespecting usual standards9. The

improper execution of the obligation is assimilated to total non execution of the

contractual obligation if the resulting good is unfit to be used. When the good,

although unfit for use by the standards set by contractual clauses, respects the

imperative regulations of law, thus not being a good which is unfit for use, we are

discussing a partial execution of contract which can result in diminishing the price

and forcing the debtor to pay damages for the difference of price. Practice in this

area often presents the situation in which an obligation is executed with delays; in

this particular situation, of great importance is the essential character or the term

the parties have established in order to execute the benefit. When the term is

essential and the debtor fails to meet it, executing the obligation with delays is

assimilated to complete non execution of contract. However, if the creditor receives

the benefit with delays, he owes a counter benefit, as he is entitled not only to

damages (in order to execute the obligation with delays). As a result, damages can

be cumulated with the executed benefit, either in nature or with delay.

Any contractual non execution (total or partial, with delays or in an inadequate

manner) must be proven by the creditor, according to the principle the one who

claims something against other people must be able to prove his allegations.

Article 1481 of the new Civil Code defines result obligations as those obligations by

which the debtor is held to procure the result he promised; proof of non execution

is made by not obtaining the promised result. Things are a little bit more difficult

in case of diligence obligations, as the debtor must make all necessary diligence in

achieving the desired result.

The distinction between the two types of obligations is a major one especially

in regard to proof, as in the case of result obligations, the lack of desired result ,is

the ipso factor proof of presumed guilt of the debtor (according to article 1548 of the

new Civil Code), whereas in case of diligence (means) obligations the lack of

7 M-L. Belu Magdo, op cit., page 145

8 L. Pop, The general theory of obligations, Lumina Lex Publishing House, op cit., pages 337-338.

9 R. Motica, E. Lupan, op cit., page 555

158 CRISTINA DINU, DIANA-GEANINA IONAŞ

results is not in itself proof of the debtor’s guilt; thus, the creditor must directly

prove that his debtor din not undertake all necessary diligence in order to obtain

the desired result.

In regard to guilt, as a necessary condition in order to engage contractual

liability, the voluntary unfulfilling of obligations must be made with guilt, without

just reason, thus liability becomes subjective. Article 1516 and 1530 of the new Civil

Code regulates unjust non execution of contractual obligation, an expression which

must be understood in correlation with guilt, as a reason of contractual liability10.

Guilt is seen as a subjective, negative attitude of the debtor in relation to the

deed and its results. Article 16 of the new Civil Code regulates the forms of guilt as

intent and fault; both are regulated and defined in the above mentioned

regulations. Similar to criminal law, guilt is formed of two factors: intellectual one

and volitional one; the first entails the capacity to understand the social meaning of

the deed and its results, whereas the second one entails an individual’s capacity to

make a conscious, rational and free decision to act or not act in a certain manner

(thus choosing between at least two or more ways of conduct). Although we have

presented theory and conceptions above, we must mention that, in civil law, this

distinction is not necessary as, unlike criminal law, in civil law, the individual is

not convicted, but forced to repair the prejudice he caused. However, at times, this

distinction is applied to jurisprudence when the deed is committed by several

people and the court must award the proportional damage to each person,

according to his participation in causing the prejudice or proportional to the

gravity of his guilt, if participation can’t be established11.

Prejudice is the essence of contractual liability. Contractual liability is

engaged only when a prejudice was caused, a prejudice which must be repaired.

There is no liability in the lack of damage, as the creditor must not only prove

contractual non execution but also the damage and its extent. Thus, prejudice is not

only the condition but also the measure of contractual liability, as the debtor is only

liable within the limits of prejudice12.

In regard to repairing the prejudice, we notice a legislative evolution in the

current regulation, which provides the character of principle to certain previously

regulated aspects which were seen only in judicial practice. Article 1359 of the new

Civil Code states that, in order to engage civil liability the prejudice must not

necessarily represent the result of violating a subjective right, stricto sensu, as

obligation to pay damages is possible in case simple legitimate interest of certain

people were harmed13. In this situation, the guilty person will be forced to repair

the prejudice he caused by harming a certain interest, if the interest meets 3

10 M-L. Belu Magdo, op cit., page 161

11 See the provisions of articles 1382-1383 of the new Civil Code

12 I. Anghel, Fr. Deak, M. F. Popa, Civil liability. Stiintifica Publishing House, Bucharest, 1970,

page 81

13 Supreme court, civil decision no 495/1966 in C.D. 1966, page 432

General considerations regarding contractual civil liability in the New Civil... 159

conditions: it is legitimate, serious (reasonable and in agreement with good

morals), it creates the appearance of a civil subjective right (the appearance of the

victim’s right to have a certain conduct and to claim that other people have a

normal conduct as well)14.

Unfortunately, the current regulation lacks provisions which regulate

prejudice, as it does not mention any classification of the repairable prejudice. The

only distinction is made by article 1391 of the new Civil Code which vaguely

discusses patrimonial prejudice and non patrimonial one. Patrimonial prejudice is

that certain prejudice which can be evaluated in money, whereas non patrimonial

prejudice can’t be evaluated in money. In order to repair the prejudice, it is

necessary for it to be certain (the existence and the possibility to evaluate it are

certain), direct (according to article 1530 of the new Civil Code, a person must

repair the prejudice which is the direct and necessary consequence of the unjust

non execution or the guilty non execution of the obligation) and predictable (only

prejudice which could have been reasonably foreseen when the contract was

concluded can be subject to repair).

Repairing the prejudice means awarding damages, money wise, which the

debtor must pay to the creditor in order to repair the prejudice caused by the guilty

non execution of the contractual obligation. In Romanian civil law, the principle of

the fully repaired prejudice operates and the damages are owed based on the

initial obligation. Thus, the main contractual obligation, in nature, is replaced, with

a pecuniary one, namely paying an amount of money which represents the

equivalent of the prejudice suffered by the creditor15.

The causes which exonerate from civil contractual liability

Regulated by article 1351-1352 of the new Civil Code, the causes which

exonerate from civil contractual liability are fortuity, cases of emergency, and the

deed of the victim or that of the third party. Unlike the old regulation, when

fortuity and emergency were seen as synonymous notions, with specific effects, the

current civil Code defined cases of emergency and fortuity by regulating the same

effect, that of removing contractual liability for the caused prejudice, if the law

does not state otherwise or if the parties did not regulate it otherwise in their

contract.

Cases of emergency are defined by article 1531 second alignment of the new

Civil Code as any extreme events, invincible and inevitable; the same article, in the

third alignment, defines fortuity as an event which can’t be foreseen and prevented

by the party who is held to answer, if the event hadn’t occurred. However, we

believe there are differentiating elements between the two institutions, namely the

case of emergency does not entail lack of guilt of the fortuity which can be directly

14 A. G. Atanasiu, A.P. Dumitriu, A. Dobre, s.a., The new Civil Code. Notes. Correlations.

Explanations, C. H. Beck Publishing House, Bucharest, 2011, pages 505-506

15 M-L. Belu Magdo, op cit., page 221

160 CRISTINA DINU, DIANA-GEANINA IONAŞ

proven by due diligence and the law required prudence. However, cases of

emergency can be proven indirectly, by an unpredictable, irresistible and exterior

event which prevents the due diligence obligations16.

Except for the two cases of exoneration from contractual liability, the law

maker stated a third, namely the deed of the victim or the deed of a third party; in

order for this to be a cause which removes contractual liability, it must not be the

fault of the debtor, as, in regard to the debtor, the deed must meet the

requirements of cases of emergency.

There is also the possibility that contracting parties must state contractual

clauses which modify contractual liability. According to article 1355 of the new

Civil Code, the parties can agree on the following:

- clauses which remove liability for prejudice caused to the goods of the victim

by simple imprudence or negligence

- clauses which remove or diminish liability for prejudice caused to the

physical or mental integrity or the health of a person, but only under the

conditions stated by law

- clauses of accepting the risk of a prejudice without meaning that the victim

wavers his right to obtain damages.

As a result, according to the principle of contractual liability, the parties of a

contract, can agree on clauses which remove liability or clauses which limit

contractual liability but also aggravate it.

The legal effects of civil contractual liability

The essence of civil contractual liability entails the full repair of the prejudice

caused by the non execution or execution with delays or in an improper manner if

it involves an obligation contained in a valid contract.

As stated above, in order to activate contractual liabity, it is necessary that the

parties conclude a valid contract, which causes legal effects.

Once the conditions of civil contractual liability are met, the creditor of the

obligation is entitled to demand from his debtor to pay damages. By regulating

these means of repairing the prejudice, the obligation to execute it in nature is

replaced with that of paying an amount of money, as a reparatory measure, which

entails the execution of the obligation and paying of damages can’t exist together.

Damages can represent either compensation (damages for the non execution,

the partial or improper execution of the contract, except for the prejudice which

results from delayed execution) or money equivalent (the pecuniary equivalent of

the prejudice caused to the creditor by the delayed execution of the obligation).

In the meaning of article 1551 of the new Civil Code, any abnormality, even an

insignificant one, from the principle of the mandatory force of contract, represents

16 M-L. Belu Magdo, op cit., page 173

General considerations regarding contractual civil liability in the New Civil... 161

a condition for awarding damages17. Compensation damages are, by their nature

of sanction, often cumulated with other reparatory functions such as the

dissolution of contract or invoking the execution of non execution of contract.

However, damages can’t be cumulated with the normal execution of the contract,

since, as stated above, compensation damages replace the main obligation of

executing the contract.

Conclusions

Contractual liability is a civil institution which is extremely important in

Romanian law and frequently used in judicial practice as, many aspects of day to

day life, insignificant ones (like the mere acquiring of food or products which are

indispensable to an individual) are in close connection with the execution of a civil

contract. As a result, judicial liability is the fundament of the modern civil society

which we live in; knowing the way in which each individual must behave in our

society is mandatory in order to maintain good social relations but also in order to

develop the concept of contemporary modern society.

Contractual civil liability is a significant component of each individual’s daily

life, but also in judicial practice which is frequently confronted with the notions

discussed in this paper.

Bibliography

M-L. Belu Magdo, Contractual civil liability in the new Civil Code, Hamangiu

Publishing House, Bucharest, 2017,

L. Pop, I.F. Popa, S. I. Vidu, Civil law course. Obligations, Universul Juridic

Publishing House, Bucharest, 2015,

M. Costin, An attempt to define the notion of judicial liability, in R.R.D.

no 5/1970,

R. Motica, E. Lupan, The general theory of obligations, Lumina Lex Publishing

House, Bucharest, 2005,

C. Statescu, C. Birsan, Civil law treaty, Academiei Publishing House, 1981,

L. Pop, The general theory of obligations, Lumina Lex Publishing House, 1998,

I. Anghel, Fr. Deak, M. F. Popa, Civil liabilty, Stiintifica Publishing House,

Bucharest, 1970,

A. G. Atanasiu, A.P. Dumitriu, A. Dobre, s.a., The new Civil Code. Notes.

Correlations. Explanations, C. H. Beck Publishing House, Bucharest, 2011

17 M-L. Belu Magdo, op cit., page 222