A New Approach regarding the Legal Contract Lesion

Author:Sache Neculaescu, Liviu Vasilescu
Position:Valahia University of Targoviste, Faculty of Social and Political Legal Sciences
Pages:95-103
SUMMARY

Why not agreeing upon a contract based on misbalanced services: because the party benefiting from an excessive service unlawfully exploited the precarious situation of the other party as a result of whom came to accept an unfair contract, or because contractual balance must be an essential feature of which and every contract with clearly established services? Which of the two reasons mentioned... (see full summary)

 
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Legal Sciences
95
A New Approach Regarding
the Legal Contract Lesion
Sache Neculaescu
1
, Liviu Vasilescu
2
1
Valahia University of Targoviste, Faculty of Social and Political Legal Sciences,
sache_neculaescu@yahoo.com
2
Valahia University of Targoviste, Faculty of Social and Political Legal Sciences,
lvvasilescu@yahoo.com
Abstract: Why not agreeing upon a contract based on misbalanced services: because the part y benefiting
from an excessive service unlawfully exploited the precarious situation of the other party as a result of whom
came to accept an unfair contract, or because contractual balance must be an essential feature of which and
every contract with clear ly established services? Which of the two reasons mentioned above is more
important in terms of current contractual discipline? These are two questions which, n o matter what answers
will get, will involve an important matter of choice, in relation to which it will be possible to assess correctly
the solutions proposed by the new Romanian Civil Code, as well as by the main bills on European
codification of contract law. The present study upholds the idea of misbalanced services only if it constitutes
rather a remedy f or a contractual problem, if it is oriented to wards the legitimate interests of the most
vulnerable party of that contract and less interested in sanctioning the guilty conduct of the person w ho took
advantage from an excessive service. As a consequence, we support the objective perspective in what
misbalanced services are concerned, a reason for which we shall be making a few comments on s ome of the
new legal provisions, by referring to the main bills on the Eur opean codification of contract law, and stating
later on a few de lege ferenda proposals, in terms of contracts based on misbalanced services.
Keywords: misbalanced services; contractual balance; disproportioned contractual ser vices; rescission of the
contract based on misbalanced services; adapting the contract based on misbalanced services.
1. Definition and Regulation
Etymologically, the term “lesion” of Latin origin (laesio), means physical or moral harm. However, in
the field of law the concept has a t echnical meaning that occurs both in relation to the contract, in
which the parties conclude disproportionate benefits in an agreement and in civil offenses designating
the alteration of property and person.
1
1
Referring to the second area, we noted that, paradoxically, civil law proved to have foc used more on person al property
matters and less on those related to the moral asp ects, that is why, for economic injuries there have been devoted more legal
terms such as damage, loss, prejudice, whereas for the moral aspects, the expressions are not sufficiently nuanced. Thus the
term "moral damage" refers to both the effects of harmful act, produced on the l evel of indi vidual subjectivity and to the
financial reward for the da mages to the victim, the meaning of each being clearly understood only in the context. In the case
of property alteration, French civil law property doct rine of recent years has proposed a distinction b etween "damage" and
"prejudice," in relation to moral damages terminology has remained unchanged. Therefore, without issuing the claim for the
development of new legal terms, we prefer to describe the moral harm in the term of "moral lesion" instead of "moral
damage". In fact, the ter m "lesion" may be used to describe both the economic and moral damage; consequently, the view to

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