Principle of progressive (gradual) use of contractual remedies

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

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.