On imprevision and its effect on the literary, artistic or scientific work copyright assignment agreement

• Author: Bujorel Florea
• Pages: 220-229

ON IMPREVISION AND ITS EFFECT ON THE LITERARY, ARTISTIC OR

SCIENTIFIC WORK COPYRIGHT ASSIGNMENT AGREEMENT

Lecturer Bujorel FLOREA

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Abstract

The re latively re cently lega l notion of imprevision brought under Romanian r egulation by the ne w Civil

code that came into force October 1st, 2011, is expected to be subject of numerous specialized analyses in order to

clarify the various aspects that make up its identity, characteristics a nd effectiveness. Following the purpose

described here -above, our study aims especially at conjugating the theory of imprevision with the copyright transfer

agreement. The article hereafter contains standpoints and de lege ferenda suggestions in relation to the pa rty

entitled to institute the l egal proceeding rela tive based upon the imprevision theory, the cr iteria to be observed in

order to adopt a solid legal settlement in this respect, the contracting parties and the court’s role in interpreting and

applying the imprevision theory.

Keywords: imprevision, special imprevision, copyright tra nsfer a greement, rebus sic stantibus principle, bona fide,

failure to execute liabilities.

JEL Classification: K12

1. Regulations, characteristics and imprevision fundamentation.

Within our law system, imprevision has found ground for regulation within the provisions

of article no. 1.271 of the Civil code

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, which repeats almost precisely article no. 6:111 („Change

of circumstances”) of the European Contract Law Principles

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.

According to article no. 1.271 of the Civil code, imprevision:

„(1) The parties are bound to execute their duties, even when the execution has become more

onerous, either due to the one’s own duty execution price augmentation, or due to value

diminution of the counterpart’s duty.

(2) Nevertheless, pr ovided the agreement execution has become excessively onerous, due to an

exceptional change of circumstances tha t would make downright unjust to coerce the pa rty liable

to execute his duty, the court may decide upon:

a) adaptation of the agreement, so as to distribute evenly among the par ties the losses and the

gains resulting from the change of circumstances;

b) termination of the agreement, at the date and with respect to the terms it shall set.

(3) The provisions of paragraph (2) are to be carried into effect only when:

a) the change of circumstances has appea red subsequently to closing the deal;

b) the cha nge of circumstances, altogether with its persistence in time, have not been, nor could

they have been foreseen by the debtor, in a reasonable manner, at the time of the deal closure.

c) the debtor did not take responsibility for the change of circumstances, nor could his will be

interpreted in a reasonable manner so as to result in having taken this responsibility;

d) the debtor has tried to initiate, within a rea sonable period of time and being of good faith, the

negotiation of the agreement adaptation in a reasonable and righteous manner.”.

Therefore, from a terminological point of view, we are in the presence of a theory

denominated traditionally as imprevision, but which has also been differently denominated within

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Bujorel Florea, Law and Public Administration Faculty, „Spiru Haret” University of Bucharest, Attorney-at-Law, Bucharest

Bar, floreabujorel@yahoo.com

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As modified by Law no. 71/2011 for the entering into force of Law no. 287/2009 concerning the Civil code, published in the

Official Gazette no. 409/June 10th, 2011

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Eur opean Contract Law Pr inciples, Prepared by the Comission of European Contract Law, Kluwer Law International, Ed. de

Lando, Hague, 2000, p. 322.