Issues regarding the representation mandate contract 105
acceptance. Thus, in the absence of a timely refusal, the mandate is considered to
be accepted if it regards acts which are subject of the mandate or for which the
representative publicly offered his services or offered his services directly to the
In enforcing the previously mentioned provisions, according to article 2
second alignment of the Civil Code, the habits and the current practice of the
parties will be considered along with the legal provisions.
We wish to point out the differentiating elements between the representation
mandate and the non representation one, which entails that we first define the non
representation mandate. Thus, the non representation mandate is that contract
according to which one party, called a representative, concludes legal acts in his
name, but with effects for another party, called a principal, and assumes the
obligations which derive from these acts in relation to third parties, even if third
parties were aware of the mandate6. The differentiation element between the
representation mandate and the non representation mandate resides in the power
of representation. Thus, in case of the representation mandate, the representative
concludes legal acts in the name of the principal; in case of the non representation
mandate, the legal acts are concluded by the representative in his own name, but
with effects for the principal, which means that the effects of the acts will indirectly
produce on the patrimony of the representative7. As stated by doctrine8, in case of
the representation mandate, in relation with contracting third parties, the principal
is considered to be irrelevant, as third parties have no relation with the principal,
but with the representative. In case of the non representation mandate, the
relations between the representative and the principal are governed by the rules
which apply to the representation mandate. According to article 2039 first
alignment of the Civil Code, in relation to third parties, the representative
personally assumes obligations, even in the hypothesis in which the third party
was aware of the mandate.
2.2. The legal characteristics of the representation mandate.
As a general rule, mandate is a consensual contract, namely it occurs by the
simple manifestation of will of the parties and no special from is required9.
However, in certain cases, the law requires a certain form, namely for the mandate
given for the conclusion of a legal act which is subject to a certain form, in which
6 Article 2039 first alignment of the Civil Code
7 G.Boroi, I.Nicolae în G.Boroi, M.M.Pivinceru, C.A.Anghelescu, B.Nazat, I.Nicolae,
T.V.Rdulescu, Civil law charts, second revised and completed edition, Hamangiu Publishing House,
Bucharest, 2017, page 637.
8 A.T.Stnescu/Ş.A.Stnescu/Gh.Piperea in the New Civil Code. Comments by articles
(coordinators F.A.Baias, E.Chelaru, R.Constantinovici, I.Macovei), CH Beck Publishing House,
Bucharest, 2012, page 2016.
9 See the provisions of article 2.013 of the Civil Code, which we will analyze in the resent study.