Resolution and Termination

• Author: Foltis, A.
• Position: Law Faculty, Transilvania University of Brasov
• Pages: 59-64

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 5 (54) No. 2 - 2012

RESOLUTION AND TERMINATION

Adina FOLTIŞ1

Abstract: The resolution, the termination and the reduction of labour

conscription are regulated by articles 1549-1554 in the new Civil Code,

which represents the common law in this matter. We appreciate that the new

regulation does not conclusively clarify the issue related to whether the

existence of liability in order to call upon the resolution is necessary or not,

because the existence of this condition has been inferred under the previous

regulation from the fact that the absence of liability shifts the inexecution

issue on the domain of fortuitous impossibility of execution, situation in

which the resolution of the contract is not in question, but that of the risk it

implies.

Key words: resolution, termination, contract, effects, inexecution.

1 Law Faculty, Transilvania University of Braşov.

1. Resolution and termination in the old

Civil code

In the old Civil Code, the institution of

resolution was regulated in articles 1020-

1021 which stipulated the following: “The

condition is always implicit in reciprocal

contracts, when one of the parties does

not fulfill its commitments or”, thenceforth

article 1021 states that: “In this case, the

contract is not voided by right. The party

whose commitment was not completed has

the choice to force the other to execute the

agreement when it is possible or to request

its voidance with penalties. Voidance must

be demanded only from legal authorities

who, according to circumstances, can

grant a term to the party brought to

justice.”

Starting from these two legal texts, in

doctrine and jurisprudence, the following

have taken shape:

a) the basis of resolution`, on a legal

basis it was that of the existence in any

contract of a tacit resolutive or implicit

condition, so in case of inexecution of the

obligations derived from the contract, an

implicit commissary pact was activated or

even more, an implicit resolutive

condition in any reciprocal contract.

In the doctrine, this explanation of the

legal foundation of resolution has been

criticized, as it is considered that the

execution of the assumed obligation

represents an essential effect of the

contract, being impossible for it to be

considered only an incidental form of it, as

the condition exists [3].

Moreover, if the resolution had not been

based on the idea of meeting a resolutive

condition, it should operate by right, like

any condition, without the intervention of

the court or, as it was provided in article

1021 Civil Code, a legal decision was

necessary for the resolution of the contract.

Consequently, in reference sources [3] it

was asserted that the legal basis of

resolution consists in reciprocity and

interaction of the obligations in the

reciprocal contract, the circumstance that