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

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