The required form of a pre-contract allowing for a court judgment to stand for a sale contract

Author:Delia Narcisa Theohari
Position:Judge, Assistant Professor, PhD Candidate, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (email: deliasterescu@yahoo.com).
Pages:7-13
LESIJ NO. XXIV, VOL. 1/2017
THE REQUIRED FORM OF A PRE-CONTRACT ALLOWING FOR A COURT
JUDGMENT TO STAND FOR A SALE CONTRACT
Delia Narcisa THEOHARI*
Abstract
A bilateral promissory agreement for sale needs no notarial deed to constitute, in case of non-
fulfillment, grounds for the delivery of a judgment which takes the place of a sale contract, a private
agreement being sufficient whereas the judgment it self represents the sale contract and both the
substantive and formal conditions are therefore satisfied.
Keywords: pre-contract, sale, judgment taking the place of a contract, formal requirements
1. Introduction
This article provides an analysis of the
form which a bilateral promissory
agreement for sale should take so that, unless
fulfilled, it allows for a judgment to be
delivered and stand for of the sale contract.
This analysis is important because it i s a
matter of non-unitary judicial practice due to
the ambiguity of the legal regulation of the
issue at debate.
1.1. The legal regulation
According to Article 1669 (1) Civil
Code, if one of the parties to a bilateral
promissory agreement for sale unreasonably
refuses to conclude the promised contract,
the other party may apply for the delivery of
a judgment which would stand for a contract,
provided that all the other validity conditions
are fulfilled.
Furthermore, in accordance with
Article 1.279 (3) Civil Code, if the promisor
refuses to conclude the promised contract,
the court, upo n the request of the party that
did perform its own obligations, the court
may deliver a judgment to stand for a
contract, where the nature of the contract
Judge, Assistant Professor, PhD Candidate, Faculty of Law, "Nicolae Titulescu" University of Bucharest (email:
deliasterescu@yahoo.com).
allows that and the legal requirements for its
validity are fulfilled.
1.2. Legal solutions adopted in
judicial practice
By the civil sentence no. 267/2016
delivered by the Court of Blaj in the case no.
173/191/2016, the application of applicant A
against respondents B for the delivery of a
judgment to take place of the sale contract,
was dismissed as unfounded. Among the
grounds for its judgment, the first instance
court basicall y held the following: "In
accordance with the 1st sentence of Article
1270 (3) Civil Code and the final sentence of
Article 1669 (1) Civil Code, the pre-contract
subject to examination should have been
concluded in notarial deed, given that it
envisaged the conclusion of a contract for
the transfer of a right in rem in immovable
property. Article 1179 (2) Civil Code
stipulates that, in so far as the law provides
a certain form of the contract, that form
should be respected subject to the sanction
provided by the applicable law. Article 1244
Civil Code stipulates that, except other cases
provided by law, any agreement for the
transfer or constitution of rights in rem to be

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