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
SUMMARY

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.

 
CONTENT
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