16 TITUS PRESCURE, ROXANA MATEFI
est; being null or not existing there was the same thing from a legal point of view" 11”.
However, this conception has evolved over time, so there is now a series of
controversies in the legal doctrine, and there is no unitary point of view on the
issue of the non-existence of civil legal acts.
At the origin of the theory of non-existent acts, as the doctrine emphasizes12,
there was the principle governing the institution of marriage according to which in
that matter no nullity could be pronounced in the absence of a law. Relative to this
idea, it should be known that, for example, the Napoleon Code did not expressly
prohibit same-sex marriage but thanks to this institution, such marriages could be
considered as non-existent, as they could not be considered null.
According to some authors, non-existent acts are nothing but acts of absolute
According to another opinion outlined in the legal literature, nonexistence
should not be confused with absolute nullity, in the latter case the act exists, but it
will not produce its effects as it violates a legal provision. On the other hand, the
non-existent act is qualified as having no factual elements indispensable to its
Karl Zachariae, in his Handbuch des franzosischen Zivilrechts, published in
1808, makes a clear distinction between the concepts of inexistence and nullity. It
starts from the idea that any legal act owes its existence to generating factors,
which if not produced, there is no legal act, a situation that should not be confused
with the nullity, which presupposes the existence of the act.15
Other authors 16, identify a single distinction between nonexistence and
absolute nullity, namely that the origin of absolute nullity is in the provisions of
the positive law. As a consequence, an act may be null in accordance with the
provisions of Romanian law, but valid according to the legal norms of another
state. Instead, a non-existent act, which lacks an element of fact, can not be
validated under the rule of any Romanian or foreign norm.
In such conceptual circumstances, in order to be able to accept one of the
previously exposed concepts or to formulate one's own conception, it is necessary
to analyze the similarities and differences between nonexistence and relative
nullity, on the one hand, and between nonexistence and absolute nullity, on the
other hand. As far as anulability is concerned, it can not be confused with the
11 C. Hamangiu, I. Rosetti-Blnescu, Al. Bicoianu, Treaty of Roman civil law, vol.I, All Beck
Pubishing House, Bucharest, 2008, p. 113.
12 F. Drogoul, Essai d'une theorie generale des nullite, Paris, Arthur Rousseau, 1902, p. 137 apud
D. Gaudet, Inexistence, nullité et annulabilité du contrat :essai de synthèse, 1995, p. 312.
13 To be seen Demolombe, vol. 24, n. 76 apud C. Hamangiu, I. Rosetti – Blnescu, Al. Bicoianu,
Treaty of Roman civil law, Vol. I, All Beck Publishing House, Bucharest, 1995, p. 120.
14 Aubry et Rau, ed. 5, vol. 1, § 37, p. 180 – 181 apud C. Hamangiu, I. Rosetti – Blnescu,
Al. Bicoianu, Ibidem, p. 120.
15 D. Gaudet, op. cit., p. 311.
16 C. Hamangiu, I. Rosetti – Blnescu, Al. Bicoianu, Ibidem, p. 121.