Some theoretical and practical aspects concerning the nullity of trading companies

• Author: Alexandra Gabriela Rolea
• Pages: 130-141

SOME THEORETICAL AND PRACTICAL ASPECTS CONCERNING THE NULLITY

OF TRADING COMPANIES

PhD student Alexandra Gabriela ROLEA

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Abstract

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

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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’’

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.

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

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.

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

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.

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.

1

Alexandra Gabriela Rolea, The Bucharest University of Economic Studies, alexandra.rolea@yahoo.com.

2

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

3

Ovidiu Ungureanu, Civil law. Introduction, Rosetti Publishing House, Bucharest, 2002, page 238

4

Articles 196-199, 1246-1265 and 1932-1936 of the new Civil Code

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Article 1252 of the new Civil Code