The legal transaction – an efficient solution for dispute settlement 21
of a „general trend for Justice Privatizing” 1
. At the same time, it is considered that
through the existence of such means which allow involved parties to settle
disputes, „such parties can clear off the judicial hazard, or at least partly limit it”2
Transaction is defined in the New Civil Code (article 2,267, paragraph 1)3 as
being a contract through which two or more parties end a dispute or prevent it, by
means of reciprocal concessions, waivers or transfer of rights from one of party’s
patrimony to the other party’s patrimony. The New Civil Code represents a
solution to the criticism brought against the Old Civil Code which did not include
any reference to reciprocal concessions the parties might undergo for concluding a
transaction. Reciprocal concession is essential in order to distinguish between a
transaction and a simple acquiescence or a general release with no other equivalent
response form the other party4. In this sense, the New Civil Code makes express
reference to such aspects.
The transaction might hold as object judicial reports different from those
which are the object of disputes between the parties that might emerge, cease or
suffer alteration through transaction.
The premises for concluding a transaction agreement consist in the existence of
a lawsuit and of a right to litigation, which is the object of a demand to appeal that
a judicial instance was invested with, or of a right to litigation which can lead to
the investment of the court with a civil cause and the intention of parties to
amicably settle their disputes.
Nevertheless, the transaction can end litigation even in the case of a forced
execution, on condition that the parties are fully aware of the fact that their
litigation was solved by judgement and decree.
In the absence of litigation, the existence of reciprocal concessions is ruled out,
since such concessions would lack their object. Since it might as well be possible
that the litigation has not yet emerged or is about to emerge, there still exists the
right which makes the object of further uncertainties. By means of reciprocal
concessions that parties undergo, they prevent the hazard regarding a possible
right to litigation, namely that a Court acquires jurisdiction of a particular civil
Since reciprocal transactions are the essence of the transaction, their existence
will lead to the conclusion of the transaction agreement. A simple
acknowledgement of the demands of a party will lead to the involvement of other
civil right institutions or civil law of procedure such as a waiver or acquiescence.
1 Philippe Malaurie, Laurent Aynes, Pierre Yves Gautier, ”Droit Civil : Les contracts speciaux”, 3rd
edition, Defrenois, Paris 2007.
3 Art. 2.267 paragraph (1) New Civil Code: (1) The transaction is the contract by means of which the
parties prevent or terminate litigation, including during the procedure of forced execution, by means of
concessions or reciprocal waiver, or by means of right transfe r from ne party to the other.
4 Mihai Cantacuzino, ”Elementele Dreptului Civil”.