Some theoretical and practical aspects concerning the nullity of trading companies

AuthorAlexandra Gabriela Rolea
PhD student Alexandra Gabriela ROLEA
Nullity is the civil legal sa nction which determines the ineffectiveness of the juridical a ct, by depriving it of
those effects that do not comply with the legal provisions enacted for its la wful conclusion. The sanction is
applicable to both civil legal a cts, among which the company contract, and lega l entities, including tra ding
companies, however, with different gr ounds and effects. In time, the legal doctr ine ha s created a special category of
commercial law nullities, with distinct features from those of common law nullities. In the new Civil code, the causes
and effects of the company’s nullity have been taken in toto f rom the trading legislation and applied to all legal
entities, ir respective of their legal status, which in tur n has led to fierce controversies. The Article begins with a
general overview of the causes and effects of the civil legal act’s nullity, including that of the company contract. The
second part tackles the isssue of trading companies’ nullity, as well as that of all legal entities, a ccording to both
national a nd European legislation. The final pa rt of the paper is dedicated to some proposals for the a mendment and
harmonization of the common law with the specific legislation on trading companies.
Keywords: nullity, civil legal act, tra ding company, constitutive act
JEL Classification: K12
1. The nullity of the civil legal act. The nullity of the company contract and the nullity of the
trading company’s constitutive act.
1.1 The nullity of the civil legal act. The legal institution of nullity holds, among other types of
civil sanctions (the inexistence, the statutory limitation, the civil penalty), a central place in the
entirety of the private law provisions, aiming to strike down the effects of the juridical acts
concluded by disregarding the relevant legal requirements.
The new Civil Code
does not define the concept of nullity, therefore this task remains
assigned to the juridical doctrine, which has seeked as far as possible to comprise all its features.
Consequently, nullity was deemed to be ‘’the civil legal sanction that repeals the juridical act
each and every time it was concluded with the nonobservance of the legal formal and substantive
provisions enacted for its validity’’
Nevertheless, the new regulation has the merit of explicitly integrating the institution of
nullity into a normative source, concerning both the topic of contracts and legal persons in
general and the common law company in particular
The classifications laid down by the private law (absolute/relative nullity; partial/total
nullity; express/virtual nullity) have been maintained, but the new Civil Code enacts a
presumption of nullity relative, the latter thus becoming the common law sanction
The absolute nullity is applicable only when it clearly follows from the legal provisions that
the protected interest is a general one. Moreover, it circumvents the parties’ choice, as it can be
enforced ex officio, at the court’s initiative. Nullity relative preserves its total subordination to the
dicretionary right of the subject of the juridical relationship.
Alexandra Gabriela Rolea, The Bucharest University of Economic Studies,
Law no. 287/2009 regarding the Civil Code , republished under the Article 218 from Law no. 71/2011 for its implementation in
the Official Gazette of Romania, First Part, no. 505 from 15 July 2011
Ovidiu Ungureanu, Civil law. Introduction, Rosetti Publishing House, Bucharest, 2002, page 238
Articles 196-199, 1246-1265 and 1932-1936 of the new Civil Code
Article 1252 of the new Civil Code

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