Mutual concessions - specific element of the compromise/transaction contract

• Author: Georgeta-Bianca Spîrchez
• Pages: 115-118

MUTUAL CONCESSIONS - SPECIFIC ELEMENT OF THE

COMPROMISE/TRANSACTION CONTRACT

PhD student Georgeta-Bianca SPÎRCHEZ

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Abstract

Given the usefulness and practical importance of the compromise contract conclusion and of the amicably

dispute resolution, within the business world, we aim to analyze, in what follows, the concrete means by which these

kind of settlement are a chieved. Two questions become legitimate in the context of concerns about mutual

concessions which the par ties make in a compromise contract. These questions are the following: “What are the

mutual concessions? Do mutual concessions mean equivalent concessions?” and “How mutual concessions are

required to complete a valid settlement? Is the requirement of mutual concessions grounded?”

Keywords: compromise (contra ct), mutual concessions, waiving the right, waiving the claim

JEL Classification: K12

1. Introductory remarks

Given the usefulness and practical importance of the compromise contract conclusion and

of the amicably dispute resolution, within the business world, we aim to analyze, in what follows,

the concrete means by which these kind of settlement are achieved.

Although the Romanian law, before the first October 2011 moment, did not address in the

content of the legal de finition to this characteristic element, however this requirement of “mutual

concessions” was imposed by the case law

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who ruled in the sense that: “within the civil

procedural law, the transaction/compromise contract is the agreement of the parties made in order

to end an existing litigation by which the parties make mutual concessions, giving up certain

rights or claims”.

The Romanian legislator endorsed all the critical comments and in an attempt to overcome

the shortcomings of the legal definition of the transaction, adopted in Art. 2267 of the New Civil

Code the following definition: ”The transaction is the contract by which the parties prevent or

settle a litigation, including during forced execution, by mutual concessions or waiving rights or

by the transfer of rights from one to the other”.

This agreement involves

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:

1) the pre-existence of a dispute (triggered or imminent);

2) the parties’ intention to put an end to the existing dispute or to prevent a dispute to arise;

3) the existence of mutual concessions, mutual waiving rights or transfer of rights.

Two questions become legitimate in the context of concerns about mutual concessions

which the parties make in a compromise contract. These questions are the following:

A. What are the mutual concessions? Do mutual concessions mean equivalent

concessions?

B. How mutual concessions ar e required to complete a valid settlement? Is the

requirement of mutual concessions grounded?

2. What are the mutual concessions?

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Georgeta-Bianca Spîrchez, University of Craiova, Faculty of Law and Administrative Sciences, bianca.tarata@gmail.com

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recently High Court of Cassation and Justice, Civil and Intellectual Property Section, Decision no. 3256 of 22 May 2008 ,

available on the Internet: www.scj.ro.

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F. Moiu, „Contractele speciale în Noul Cod Civil”, Publisher Wolters Kluwer, 2010, p. 316