The theory of unpredictability 'non haecin foedera veni

• Author: R. Matefi/L. Cernea
• Position: Law Department, Transilvania University of Brasov/Student within Law Department, Transilvania University of Brasov
• Pages: 191-198

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 9 (58) No. 1 - 2016

THE THEORY OF UNPREDICTABILITY

”NON HAECIN FOEDERA VENI”

R. MATEFI1 L. CERNEA2

Abstract: The present paper presents the institution of unpredictability, one of

a great impact within the actual economic context, introduced by the 2011

Romanian Civil Code. Before the coming into force of the present Civil Code,

there was no general regulation within this area as the previous regulations

contained only few particular ways of applying this theory. The need to regulate

this theory was generated by the fact that, while a contract is in effect, the

circumstances that existed when the parties concluded it, could suffer substantial

changes and, as a result, it needs to be adjusted. The regulation of this institution

should be regarded as a step forward, not an impediment, both theoretical and

practical in its application by the court. It is without doubt in the context of the

economic crisis, this institution had to find its legislative consecration.

Key words: unpredictability, contract, enforcement, risk, fluctuation,

equilibrium, circumstances.

1. Preliminary Issues

In analyzing the theory of unpredictability, we must begin by considering the “pacta

sunt servanda” principle, one which represents the basis of each contract.

Based on this principle, each party fulfills its obligations in good faith by relying on the

counter performance of the other party or parties. Stability and trust are essential elements

which must govern the execution of contracts.

According to the doctrine “the principle of pacta sund servanda requires that

agreements must be kept. However such rule is not absolute. When performance of a

contractual obligation becomes impracticable, i.e., considerably more burdensome

(expensive) than originally contemplated –albeit physically possible- due to an

unexpected event, this would lead to adaptation of the contract to the changed

circumstances or to avoidance of the contract.

In the law and economics literature, impracticability has been substantially studied to

figure out who should bear the risk of impracticability; and what would be the efficient

remedy for such breach of contract” (Aksoy, 2014).

“If all contracts were generally reviewable, the confidence of the economic agents

would vanish, and it is confidence that is fundamental in any economic system. In any

case, the idea that, as a general rule, contracts are binding and, therefore, in the case of

1 Law Department, Transilvania University of Braşov, roxana.matefi@gmail.com.

2 Student within Law Department, Transilvania University of Brasov.