The valid conclusion of the compromise/transaction contract. Special rules

• Author: Georgeta-Bianca Spîrchez
• Position: Faculty of Law and Administrative Sciences, University of Craiova
• Pages: 166-180

The valid conclusion of the compromise/transaction contract.

Special rules

Ph.D. student Georgeta-Bianca SPÎRCHEZ

1

Abstract

In this paper we aimed to examine the legal mechanisms that ensure the protection

of the pa rties within this form of pr ivate justice-that of compromise conclusion. F or a

systematic approach of this subject, we reported, first of all, to the genera l rules governing,

in ter ms of validity, the conclusion of c onventions, but mostly we leaned on the particula r

aspects relating to this specific contra ct. In order to respond to the main objectives, we

reviewed the legal requir ements in force a nd the way the case la w inter preted them a nd

also the relevant a rguments br ought by the doctrine. The resear ch methodology took into

account elements of compara tive la w; we followed, in t his respect, the French r egulatory

model and the Anglo-Saxon common law which is favorable to the conclusion of this type of

contract.

Keywords: compromise (contract), validity conditions, settlement over a void or ca ncelable

document, settlement based on false documents

JEL Classification: K12

1. Introductory issues

In negotiating a settlement, the force ratio is often the dominating one and

the interests at stake are not necessarily equivalent2. For the balance between

efficiency and justice to be respected, it is necessary that the legislative

mechanisms be sufficient to protect the sides.

As a contract, the compromise/transaction contract will be subject, firstly,

to the general rules concerning the validity of agreements3. No less though, the

specific coloring of this type of contract reflects in the adoption of special rules,

according to which the validity of a transaction contract is examined. We find these

special rules in the Romanian Civil Code, starting with art. 22714.

1 Georgeta-Bianca Trî (married Spîrchez), Faculty of Law and Administrative Sciences, University

of Craiova, bianca.tarata@gmail.com

2 As suggestively indicated in the French doctrine-C. Radé, „Les effets de la transa ction”, in «La

transac tion dans toutes ses dimensions», collective paper, Publishing House: Dalloz, 2006, page

88; the example is relevant in this regard: an economically strong and well organized company will

not fear the costs of a trial, but will want to avoid bad publicity, while the ‘weak part'' will have

nothing to lose, as image, in a trial, but can fear the duration of the trial, the costs and might need,

psychologically, to rapidly find a way out of the dispute …

3In this regard the provisions of art. 1179 Civil Code (corresponding of art. 948 of the old regulation).

Thus "the essential conditions for the validity of a contract are: 1) capacity to contract; 2) the parties

agreement; 3) a determined and lawful object; 4) a lawful and moral cause”. Also, according to

par.2 “to the extent the law provides a certain form of the contract, it must observed, under penalty

of the applicable laws”.

4 In the Civil Code of 1864, these special rules were set starting with art. 1706