The prejudice and the imprevision - situations that cause a contractual imbalance

• Author: Adina Foltis
• Position: Law Department, Transilvania University of Brasov
• Pages: 147-154

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 8 (57) No. 1 - 2015

THE PREJUDICE AND THE IMPREVISION

- SITUATIONS THAT CAUSE A

CONTRACTUAL IMBALANCE

Adina FOLTIŞ1

Abstract: The prejudice and imprevision are two situations that cause a

contractual imbalance. Although in the case of both institutions of civil law

there is a clear disproportion between the parties' services, the disparities

among these are the ones that determine their existence as autonomous

institutions regulated distinctly by the Civil Code, the prejudice being

considered a vice of consent, while imprevision is appreciated as an

exception from the principle of binding force of a contract, which has as its

basis the principle of good faith and fairness.

Key words: prejudice, imprevision, obligation, contract.

1 Law Department, Transilvania University of Braşov.

1. The statutory regulation of the two

institutions of civil law: the prejudice

and the imprevision

The prejudice is a vice of consent

governed by the Civil Code in art.1221-

1224.According to art. 1221 of the Civil

Code, "(1) We deal with an prejudice when

one party, taking advantage of a state of

need, the inexperience or lack of

knowledge of the other party, stipulates in

its favour or of another person, services of

a considerably higher value at the date of

concluding the contract than the value of

their services.(2) The existence of the

prejudice must be assessed according to

the nature and purpose of the contract.(3)

The prejudice may also exist where the

child assumes an excessive obligation

related to his/her heritage status, the

services one gets from the contract or to

all the circumstances. "

The sanction, in the event of prejudice, is

provided by art.1222 of the Civil Code:

"1) The party whose consent was vitiated

by prejudice may demand, at their option,

the cancellation of the contract or the

reduction of his/her obligations to the

amount of damages-interests which would

be justified.(2) Except for the case

provided in article 1221 par. (3), the

action for annulment is admissible only if

the damage exceeds half the value it had at

the time of conclusion, the benefit

promised or performed by the damaged

party. 3) In all the cases, the court may

maintain the contract if the other party

fairly provides a reduction of their claims

or, where appropriate, an increase of their

own obligations.

The provisions of art. 1213 concerning

the adaptation of the contract shall apply

accordingly. In accordance with the

provisions of art. 1223 of the Civil Code,