The option agreement in the new romanian civil code

AuthorTudor Vlad Radulescu
PositionAssistant professor
Assistant professor, Ph.D. student Tudor Vlad RDULESCU
The Romanian Civil Code of 2009 intr oduces a new legal construct in the Romanian lega l system, i.e. the
option agreement, mainly taken from French law. This paper a ims at highlighting the differences between the option
agreement and other legal constructs which constitute acts pr eceding the conclusion of a contract and have alrea dy
been discussed in the Romanian literatur e. Thus, we intend to offer a comparat ive view with reference to the offer to
contract, a s well as the unilatera l and bilateral pr omises, highlighting the similarities a nd, especially, the differences
between such constructs. F inally, we wish to dr aw a ttention to some confusions to be a voided with the introduction
of the option agreement in the New Romania n Civil Code, as well as to some omissions or regrettable er rors that the
legislator of 2009 has failed to notice in the text of the code.
Keywords: New Romanian Civil Code, option agr eement, promise, offer to contract.
JEL Classification: K12
The New Civil Code (NCC)
introduces in the sphere of preparatory acts, besides the
promise to contract, a legal construct unique to our country’s legislation, i.e. the option
This construct, as regulated by the New Civil Code, is not an absolute novelty; it is
inspired from the French (and not only) doctrinal and case law solutions and represents a
recognition of some opinions expressed in the Romanian juridical literature
which, at the time of
their formulation, did not produce the necessary echo in order to become established as dominant
views. At the same time, the New Civil Code preserved the classic construct of the preliminary
contract, as a bilateral promise to contract.
The option agreement is the bilateral legal act whereby a party, called promissory,
expresses his or her consent to the conclusion of a contract whose content is accurately
established, while providing the other party, the beneficiary of the option, with the right to accept
or decline the conclusion of the contract, within a specified or ascertainable period of time.
The New Civil Code establishes the legal regime generally applicable to the option
agreement in Article §1278 and subsequently stipulates, in Article §1668, a particular application
of the option agreement in relation to the sales contract.
The option agreement is therefore a contract and not a unilateral act, as two wills are
necessary for its valid conclusion. This follows from the wording of Article §1278 NCC, which
states from the first thesis t hat “when the parties agree (our emphasis) that one of them remains
bound to its own declaration of will, whereas the other may accept or refuse it, that declaration
is considered a binding offer ... .
By its conclusion, the option agreement produces two effects: on the one hand, for the
promissory, the contract to which the agreement refers is half completed (as the party manifests
irrevocably its wish to do so); on the other hand, for the beneficiary of the option, the right arises
to choose freely whether or not to conclude the contract, within a period of time that is either
Tudor Vlad Rdulescu, Alexandru Ioan Cuza University of Iaşi, Faculty of Law,
Law No. 278/2009, republished in the Official Journal of Romania, Part I, No. 505 of 15/07/2011.
See Dan Chiric, Tratat de drept civil. Contracte speciale. Vol. I. Vânzarea i schimbul [Treatise of Civil Law. Special
Contracts. Volume I. Sale a nd Exchange] , C.H. Beck, Bucharest, 2008, pp. 147-162; Juanita Goicovici, Formarea progresiv a
contractului [P rogressive Formation of the Contract] ,Wolters Kluwer Publishing House, Bucharest, 2008, pp. 34-41.

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