The option agreement in the new romanian civil code

• Author: Tudor Vlad Radulescu
• Position: Assistant professor
• Pages: 260-267

THE OPTION AGREEMENT IN THE NEW ROMANIAN CIVIL CODE

Assistant professor, Ph.D. student Tudor Vlad RDULESCU

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Abstract

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)

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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

agreement.

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

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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

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Tudor Vlad Rdulescu, Alexandru Ioan Cuza University of Iaşi, Faculty of Law, tradulescu@yahoo.com.

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Law No. 278/2009, republished in the Official Journal of Romania, Part I, No. 505 of 15/07/2011.

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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.