Principle of progressive (gradual) use of contractual remedies

Author:Bazil Oglinda
Position:Bucharest University of Economic Studies
Pages:226-239
SUMMARY

In this study, we intend to answer to the question whether, in the modern contract law, in general, and in Romanian contract law, in particular, the creditor may resort almost discretionary to remedies (contractual sanctions such as termination, rescission) without being opposed that he should have resorted to other more appropriate remedies. In order to answer to this question, we find it... (see full summary)

 
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Principle of progressive (gradual) use of contractual remedies
Lecturer Bazil OGLINDĂ1
It is in the interest of the society to offer to each party to a contract
a reasonable security for the protection of its legitimate interests.
But it is not in the interest of the society to allow that party to abuse of
such protection using an insignificant breach in order to
circumvent its own contractual obligations.
(Allan Farnsworth)
Abstract
In this study, we intend to answer to the question whether, in the modern contract
law, in general, and in Romanian contract law, in particular, the creditor may resort
almost discretionary to remedies (contractual sanctions such as termination, rescission)
without being opposed that he should have resorted to other more appropriate remedies.
In order to answer to this question, we find it extremely useful to define the term of
contractual remedy and to analyse the correlation of this principle with other principles of
modern contract law.
Also, last but not least, we intend to define the principle of progressive (gradual)
use of the contractual remedies and to detail the vocation (legal nature) of this principle in
the modern contract law, having as starting point the provisions of the new Romanian Civil
Code.
Keywords: principle of progressive (gradual) use of the contractual remedies,
modern contract law, contractual remedy, new Romanian Civil Code.
JEL Classification: K12
1. Theory of Contractual Remedies in correlation with the Principle
of Safeguarding of Contracts
A) The Concept of Contractual Remedy
Lato sensu remedies mean those legal means, both in-court and out-of court
(mainly the contractual sanctions – termination or rescission when they have a
judiciary nature) irrespective of the purpose pursued b y the creditor, whose exercise
may lead to the safeguard of the contract or, to the contrary, to the cessation of its
effects.2
The proper remedies are those legal means made available, in principle, fo r
the creditor, and which may lead to safeguard of the contract by having its effects
1 Bazil Oglindă – Bucharest University of Economic Studies, Law Department, office@onvlaw.ro
2 L. Pop, I. F. Popa, S.I. Vidu, Elementary Treaty of Civil Law. Obligations, Universul Juridic
Publishing House, Bucharest, 2012, pp. 254-262.

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