Lesion In Contracts Between Professionals

• Author: Eugen Sârbu
• Position: Faculty of Law, University of Bucharest, Romania
• Pages: 216-223

LESION IN CONTRACTS BETWEEN PROFESSIONALS

PhD. student Eugen SÂRBU1

Abstract

The current study aims to bring to the foreground a practical perception of lesion, both as a vice of consent and

as a mechanism for balancing a contract, by putting this institution in the context of modern economic reality. Section I

offers a short historical analysis of lesion in Romanian law, presenting the innovation brought by the Civil Code in force

and the applicability of lesion in professional relation ships. Section II aims to explain the particularities of this vice of

consent regarded as a contractual imba lance. Section III offers an analysis of the conditions of existence of lesion, by

contextualizing them in relations between professionals. Section IV introdu ces an analysis of the way in which the

institution of lesion, when correctly pu t into practice by the interpreter of the law, could influence business actors when

making decisions in the phase of concluding the contract. Section V refers to the application of lesion by courts and to

the effects produced by this institution.

Keywords: lesion; professionals; business medium; contractual balance; economic analysis of contract;

disproportion of benefits.

JEL Classification: K12

1. Preliminaries

The authors of the Romanian Civil Code of 2011, inspired by the civil legislation of

Germany2, Switzerland3, Quebec4 and also by Principles of European Contract Law5 and other such

instruments for the unification of private law at European and global level, operated a substantial

change in the juridical regime of lesion in contracts, by extending its scope. While in the previous

legislation lesion could only occur in the case of the minor with limited capacity to contract (Art.

1165 Civil Code of 1864 expressly stated: “Adults cannot exercise the action in rescission for

lesion”), the Civil Code of 2011 radically changes the paradigm by including lesion in the category

of vices of consent, with general applicability, therefore applicable for all persons. In the current

regulation6, “lesion is the vice of consent that consists of the damage suffered by one party (usually

found in a weaker position) and that, according to the law, may result in legal sanctions at the

disposal of the protected party.”7

This legislative novelty has been well-received by doctrine8, which considered the new

regulation to be more in line with economic and social realities, while offering a mechanism for

1 Eugen Sârbu - Faculty of Law, University of Bucharest, Romania, eugen.sarbu@oglindalawyers.ro.

2 §138 par. (2) German Civil Code: ”In pa rticular, a legal transaction is void by which a person, by exploiting the predicament,

inexperience, lack of sound judgement or considerable weakness of will of another, causes himself or a third party, in exchange for an

act of performance, to be promised or granted pecuniary advantages which are clearly disproportionate to the performance.”

3 Art. 21 par. (1) Swiss Code of Obligations: "En ca s de disproportion evidente entre la prestation promise par l'une des parties et la

contre-prestation de l'autre, la partie lesee peut, dans le delai d'un an, declarer qu'elle resilie le contrat et repeter ce qu'elle a paye, si

la lesion a ete determinee par l'exploitation de sa gene, de sa legerete ou de son inexperience."

4 Art. 1406 Quebec Civil Code: "La lesion resulte de l'exploitation de l'une des parties par l'autre, qui entraîne une disproportion

importante entre les prestations des parties; le fait meme qu'il y ait disproportion importante fait presumer l'exploitation. Elle peut

aussi resulter, lorsqu'un mineur ou un majeur protege est en cause, d'une obligation estimee excessive eu egard a la situation

patrimoniale de la personne, aux avantages qu'elle retire du contrat et a l'ensemble des circonstances."

5 Art. 4:109 PECL: ”(1) A party may avoid a contract if, at the time of the conclusion of the contract:

(a) it was dependent on or had a relationship of trust with the other party, was in economic d istress or had urgent needs, was

improvident, ignorant, inexperienced or lacking in bargaining skill, and

(b)the other party knew or ought to have known of this and, given the circumstances and purpose of the contract, took advantage of

the first party's situation in a way which was grossly unfair or took an excessive benefit.”

6 Art. 1221 Romanian Civil Code: “(1) Lesion occurs when one of the parties, taking advantage of the state of need, lack of experience

or lack of knowledge of the other party, stipulates in its or other person’s favour a benefit that is considerably larger than the value of

its own benefit, at the time of the conclusion of the contract.

(2) Lesion must also be assessed by considering the nature and scope of the contract.

(3) Lesion may also occur when a minor assumes an obligation that is excessive in relation to its assets, to the advantages gained from

the contract or to the overall circumstances.”

7 G-A. Ilie, Leziunea în reglementarea noului Cod civil, ”Revista Română de Drept Privat” no. 6/2016.

8 S. Neculaescu, Leziunea – viciu de consimţământ sau dezechilibru contractual?, ”Revista Română de Drept Privat” no. 3/2010.