Juridical will in contracts

Author:Emilian Ciongaru
Position:Associate Professor, PhD, Hyperion University of Bucharest; Associate researcher - Romanian Academy, Institute of Legal Research 'Acad. Andrei Radulescu' (e-mail: emilian.ciongaru@yahoo.com).
Pages:82-88
SUMMARY

In the business law, almost all judicial relationships of private law are obligational juridical relationships which are made up of legal acts and facts. The most important legal act is the contract since it is the basis of the social life in any community meaning that it represents the most important economic and juridical instrument for the participants to a contract. The persons are free and... (see full summary)

 
FREE EXCERPT
JURIDICAL WILL IN CONTRACTS
Emilian CIONGARU*
Abstract
In the business law, almost all judicial relationships of private law are obligational juridical
relationships which are made up of legal acts and facts. The most important legal act is the contract
since it is the basis of the social life in any community meaning that it represents the most important
economic and juridical instrument for the participants to a contract. The persons are free and equal in
society and, consequently, no power is valid and fundamental unless it relies on their consent, namely
on a contract. So, the existence of a civil contract relies on the principles of consensualism, a perception
based on moral rules to observe one’s promises, to have good faith and to observe the interests of your
fellow creature. The exterior manifestation, the expression or declaration of the juridical will
constitutes th e consent of such person in making the structure of contract. The declared will must
correspond to the person’s real will and the adoption and declaration of the juridical will must take
place consciously. Any contract that does not derive from juridical will is null and the civilizing
character is inexistent. The principles g iving sense to consensualism is the one of agreement between
parties so as to produce legal effects by itself and it is enough for the conclusion of a contract,
regardless of the form in which it is exteriorized, a principle expressed by the Latin adagio pacta sunt
servanda.
Keywords: business law, principles of consensualism, juridical will, contract.
1. Introduction*
The liberty of contract principle has
been initially taken over by the private
international law in ter ms of the co nflict of
laws, and then it was consecrated in the
internal law of the European states starting
with Napoleon’s Civil code, a codification
work massively taken over by the
Romanian Civil Code of 1864, then in the
New Civil Code which take effect from
2011. We might say that by the r ecognition
of the liberty of contract and the fact that the
subjects of law are free to conclude or not
any contracts and to establish their content
in an unhampered manner being able to
modify or extinguish the assumed
* Associate Professor, PhD, Hyperion University of Bucharest; Associate researcher - Romanian Academy,
Institute of Legal Research “Acad. Andrei Radulescu” (e-mail: emilian.ciongaru@yahoo.com).
obligations, the science of law has evolved
from the rigidity of the quiritarian Roman
law to the flexibility of consensualism from
the modern era of law.
Will is undoub tedly one of the words
having a high frequency in the c urrent
language mainly due to the fact that this
term is associated to the human be ing’s
will to tend to something, to achi eve
something, to attain certa in goals, to obtain
the things necessary for the daily life, to
fulfill a dr eam etc.
In the field of law, the will is met very
often in cases such as the will of state
incorporated into the juridical norm (t he
juridical norm being the expression of s uch
will), the individual (unilateral) will that
may manifest to achieve some agreements

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