Voinescu, S.: Absolute and Relative Nullity of Legal Transactions under the New Civil Code

• Author: Tita-Nicolescu, G.
• Position: Associate Professor Transilvania University of Brasov, Lawyer Brasov Bar - Lawyer Brasov Bar
• Pages: 191-198

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 7 (56) No. 1 - 2014

ABSOLUTE AND RELATIVE NULLITY OF

LEGAL TRANSACTIONS

UNDER THE NEW CIVIL CODE

G. TIXA-NICOLESCU1 S.VOINESCU2

Abstract: This article is aimed at a very detailed approach of the question

of nullity of legal deed as provided by the New Civil Code, which brings

important new elements in this matter. The research is based on the

theoretical considerations of the article writer, who also quotes other writers,

on the conclusions derived from the national and european case law on

nullity, as well as on the relevant elements of comparative law. Several civil

codes have been taken into consideration, firstly the Civil Code of Quebec

and have been used as correction source and comparison model for the

regulations of the Romanian New Civil Code on the matter of nullity.

Key words: nullity, absolute nullity, relative nullity, acknowledging /

ratifying cancellation.

1 Associate Professor Transilvania University of Braşov, Lawyer Brasov Bar.

2 Lawyer Brasov Bar.

1. Introductory remarks on the

classification of nullity.

In the literature as well as in the case law

previous to the passing of the new civil

code, several classifications of nullity were

formulated, some of them having been

deliberately taken over by the current

regulation, while others remaining only

legal literature theories. We hereby remind

the readership that the old civil code did

not contain a chapter on nullity as a legal

institution, as is the case with the new civil

code, and therefore, there was no express

classification of nullity types. Currently,

the law regulates and defines three nullity

categories:

- Absolute nullity / relative nullity;

- Express nullity / virtual nullity;

- In full nullity / partial nullity.

Currently, other two categories (of a

lesser importance) are possible without any

error, namely:

- Nullity of form / substantive nullity;

- Nullity by party agreement / judicial

nullity.

The most significant classification of

nullity is that based on the importance of

violated legal provisions or on the nature

of the interest envisaged by the violated

legal provisions – general or individual (as

often distinguished betwe en in doctrine);

from this viewpoint, there are two types of

nullity: absolute and relative nullity.

In terms of terminology, the civil code

refers to two distinct concepts: we may

speak about a null contract (or absolutely

null) or void contract when we have

absolute nullity, or about an annullable

contract when we have relative nullity.