The conclusion of the caretaking contract. Between theory and practice

• Author: Diana-Geanina Ionas
• Position: Transilvania University of Brasov
• Pages: 403-410

Bulletin of the Transilvania University of Braşo v

Series VII: Social Sciences • Law • Vol. 12(61) No. 2 – 2019

https://doi.org/10.31926/but.ssl.2019.12.61.2.23

THE CONCLUSION OF THE CARETAKING CONTRACT.

BETWEEN THEORY AND PRACTICE

Diana-Geanina IONAȘ1

Abstract: The caretaking contract is the judicial bilateral act by which one party, the

debtor of the caretaking obligation, is obliged to provide and care for another party

or for a third party, the creditor of the caretaking obligation, all the necessary acts in

order to provide and care for a certain amount of time or for the rest of the creditor’s

life. The current article presents aspects regarding the conclusion of the caretaking

contract, in regard to its validity conditions as well as the creditor’s possibility to

forgo the benefit of the legal mortgage. As it is frequently used in practice, the

detailed conditions of this contract are extremely important in order to avoid

litigation which might arise from the vice of this contract.

Key words: caretaking, validity conditions, form, legal mortgage .

1. General aspects regarding the caretaki ng contract

The caretaking contract is the judicial bilateral act by which one party, the debtor of the

caretaking obligation, is obliged to provide and care for another party or for a third party, the

creditor of the caretaking obligation, for a certain amount of time.

While the former Civil Code did not contain legal provisions regarding the caretaking contract,

the present Civil Code expressly regulates this type of contract in articles 2254-2263, stating the

definitions phrased by doctrine and jurisprudence. By this regulat ion, the caretaking contract,

seen as a contract especially designed for poor elderly people, satisfies the need for security on

the one hand and the search for speculation on the other hand (Malaurie Ph., Aynes L., ș.a.,

2007, p.541). This is why, the main characteristic of the caretaking contract is the random

character, as it depends on hazard and the fact that it pertains to an alimentary obligation.

As it is a contract especially designed for a certain social category, that of poor elderly people,

it is regulated as a contract in the former Soviet states, including in the Moldavian Republic,

without having a specific regulation in the Western European laws. By exception, the French

jurisprudence and doctrine acknowledges the so-called „le bail a nourriture”, a variety of the life

annuity contract, which creates a contractual alimentary obligation (Benabent A., 2013, p. 661).

In regard to its legal characteristics (Moțiu F., 2017, p. 350-352), the caretaking contract is

characterized by the fact that: it represents a bilateral judicial act, resulting from an agreement

of will, even if it creates obligations for just one of the parties; it is a named contract, as it has an

express regulation in articles 2254-2264 of the Civil Code; it is a bilateral contract, by exception a

1 Transilvania University of Braşov, diana.ionas@unitbv.ro, corresponding author