The unilateral declaration of rescission - an extrajudicial mean of terminating a contract

• Author: Diana Geanina Ionas
• Position: Faculty of Law, Transylvania University of Brasov, Romania
• Pages: 108-117

The unilateral declaration of rescission - an extrajudicial mean

of terminating a contract

Assistant professor Diana Geanina IONAȘ

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Abstract

Based on the provisions of article 1169 of the Civil Code, the pa rties are free to

conclude any contract; however, based on the principle of the mandatory fo rce of contract,

the parties are held to execute the contract as sign ed. According to article 1549 of the new

Civil Code, in case the debtor fails to execute its obligations accordingly, the creditor is

entitled to invoke one of the following remedies: execution by equivalent; foreclosure;

rescission or termination of contract or the reduction of the debtor’s performance or the

use of any other legal mean available in order to achieve his right

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. Rescission can

manifest under any of the two forms: judicial and extrajudicial. Extra judicial rescission

also has two forms: unilateral rescission and conventional rescission. Unilateral rescission

operates based on the unilateral declaration of rescission. At first sigh t, the creditor’s

possibility to terminate the contract by rescission presents some practical issues regarding

the conditions when it can be invoked, the form of the declaration, its legal effects (namely

the real possibility of reinstating the parties in their previous position) and the statute of

limitation of the right to invoke rescission. All these aspects were subject to our analysis,

thus attempting to find the practical solution for enforcing this highly a nticipated solution

in the new social-legal context.

Keywords: remedy, rescission, unilateral act, form, effects, contract.

JEL Classification: K12

1. Will and contractual freedom

Man’s will is a complex process which comprises facts of intelligence,

affective facts and facts of will. In case these facts cause legal effects, a person’s

will acquires a judicial character. Judicial will is a person’s decision of committing

a deed which causes legal consequences. In other words, will has a legal character

when it manifests under the form of a judicial act.

Will is governed by the principle of the autonomous will. The principle of

the autonomous will or that of contractual freedom

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entails the fact that individual

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Diana Geanina Ionaş – Faculty of Law, Transylvania University of Brasov, Romania,

diana_ionas@yahoo.com .

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Decision no 2060 of April 24th, 2012 of section II of the High Court of Justice regarding the

recession of a contract available at http://www.scj.ro/1093/Detalii-jurisprudenta?customQuery

%5B0%5D.Key=id&customQuery %5B0%5D. Value=82922 on 25.04.2016.

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The Constitutional Court, through decision no 365 of July 5th, 2005 regarding the unconstitutional

exception of article 38 of Law no 53/2003 - Code of Employment, published in the Official Bulletin

of Romania no 825 of September 13 th, 2005, offers a definition of contractual freedom as follows:

“contractual freedom is the possibility of every subject of law to conclude a contract, mutuus

consensus, to manifest its will, in accordance with the will of the other party, to est ablish the

content and the object of the contract, thus acquiring rights and obligations which are mandatory for

both parties”.