Legal Act

The most accurate definition of a legal act is an expression of somebodys will

made with the intention to bear, modify or cease a juridical relationship.
Our law commonly uses this notion (act) with two different meanings:
1) Firstly, as we already defined it, as an expression of a persons will.
This is the negotium sense;
2) Secondly, this notion is used with the meaning of a written statement, which is
known as the instrumentumsense.
Civil code uses both of these meanings. For instance, the civil code provides that
the acceptance of a succession can be expressed or implied. It is expressed
whenever the successor makes an act in an authentic form (instrumentum sense) in
order to acquire the inheritance, and it is implied whenever he simply makes an act
(negotium sense) which can be concluded only by a person who has a successor
quality.

CLASSIFICATION OF LEGAL ACTS

There are different criteria to classify the civil acts as follows:
Unilateral and bilateral acts
A unilateral act is an act that involves the expression of a single persons will.
It means that, there is only one person expressing his intention to produce juridical
effects. It can be included in this category the will, the offer to contract, the
acceptance of a succession.
On the contrary, a bilateral or multilateral act is an agreement between two or
more parties with distinguished interests. A bilateral/multilateral act is a contract, a
legally recognized promise or bargains made by two or more persons and
including all rights and duties resulting from their promises or bargains.

Examples of contracts include: contract of sale, contract of exchange, loan, mandate,

consignment, employment contract, etc.
The process by which the parties arrive at a bargain will vary widely according to the
circumstances. It is common to assume that it involves two distinct steps: the first is
an offer by one party and the second is an acceptance by the other.
Moreover, contracts may be classified, in their turn, as unilateral. and bilateral
contracts.
Indeed, a contract may involve an exchange of promises in which two parties agree
that each of them will perform a certain obligation. The exchange of a promise for a
promise is known as a bilateral contract.
If there is no such exchange and only one part assumes obligations, the contract is
unilateral. For instance, in a loan contract, the loaner is the promisor, being entitled
to demand the loan, and the borrower is the promisee, being obliged to give it back.
We emphasize that, in this case, the contract involves two will but only one part
assumes obligations.

Acts made by onerous title and acts made by gratuitous title

The criterion of this distinction is the aim pursued by parties concluding the act.
An act made by onerous title is that act in which each party promises an
economic benefit to the other in exchange of another economic benefit.
On the contrary, an act made by gratuitous title is one in which one party
promises to the other an economic benefit without expecting, in exchange,
any promise.
Although many of the unilateral contracts are made by gratuitous title (e.g., the
donation or the gratuitous mandate), there are some which may have both gratuitous
or onerous titles (e.g., the loan contract without or with interests).
The acts made by onerous title subdivide into:

a) commutative act one in which the parties know, from the very moment
of concluding the act, which will be their mutual obligations (e.g., sale
contract).
b) aleatory act an agreement wherein the performance of one party
depends on the occurrence of an uncertain event (alea).
In fact, when the contract is concluded the parties do not know the extent of their
obligations because their performance depends of the occurrence of an uncertain and
fortuitous event. Examples of such acts include life and fire insurance contracts or life
annuity contracts. Such agreements are enforceable notwithstanding an uncertainty
of terms at the time of their conclusion or an undertaken risk clearly appears.
The acts made by gratuitous title are subdivided in:
a) grants a voluntary transfer of goods from a patrimony to another.This
transfer can be achieved either by a person to another.
b) acts of benevolence a favor made by a person to another without
decreasing the patrimony of the former(e.g., the gratuitous mandate).

Translative, constitutive and declarative act

The criterion of this classification is the effect of the act.
A constitutive act is one that constitutes a right which does not previously
exist. For instance, the juridical institutions of mortgage or of usufruct are such
constitutive acs. Accordind to the New Civil Code, the partition is a constitutive act. A
partition is a dissolution of the unity of a possession that exists between mutual
owners.
A translative act is an act which transfers a pre-existing right. The most
juridical acts have this character (e.g., sale contract or exchange contract).
A declarative act is one that consolidates a pre-existing subjective right. For
instance, the settlement is a declarative act.

Consensual, formal and real acts

A consensual act is an enforceable one with no formal conditions requested.
According to the civil code the most juridical acts are enforceable by simple consent.
A formal act is enforceable only if there are observed some additional
formal conditions, other than the simple consent. The form required for
concluding such acts is, most frequently, a written settlement. For instance, law
requires a written form, and sometimes even an authentic form, for concluding acts
as donation, will, mortgage or farm contract.
A real act is one that can be concluded only by delivering the thing by the
transferor to the transferee. Therefore, the deliverance of the goods is requested
not only to perform the real act, but to conclude it as well. There are real acts loan or
deposit contracts, whereby the simple consent is not enough for the validity of the
transaction. Thus, the deliverance of the goods is required by law for a valid
conclusion of the act itself.

Acts with instantaneous execution and acts with successive execution

An act with an instantaneous execution (uno ictu) is one that involves a
single performance, meaning made at once (e.g., sale contract).
An act with successive execution involves multiple performance. It means
that we have successive operations (e.g., life annuity contract, rent contract, etc.).
According to the New Civil Code, there is no difference in what concerns the nullity of
those acts. One of the most important differences is that the sanction for culpable
failure or improper performance will be rescission in case of the contracts with an
instantaneous execution, while for the contracts with successive execution the
sanction will be dissolution.

Principal and accessory acts

A principal act is one independent of any other act.

An accessory act is one that depends on a principal act. For instance, a

mortgage depends on the loan contracted by the mortgagor. It cannot continue after
the time when the mortgagor performed his obligation to the benefit of the
encumbrance. In this case, the rule is that the accessory act has the same destiny as
the principal one (accesorium sequitur principale).

Pure and simple acts and acts affected by modalities

A pure and simple act is one that does not contain a modality. There are
several acts that are incompatible with modalities, like marriage or adoption, but
most of them may be affected by the modalities.
A modality is a future event that determines the existence or
performance of a juridical act. There are modalities the term, the condition and
the task, which will be later treated in this chapter. Certain acts are essentially
dependent upon a modality, e.g., the loan, that always involves a term, the donation
with a task or the insurance contract.

Inter vivos acts and mortis causa acts

An inter vivos act (lifetime act) is that which produces its effects
unconditioned until the death of the promisor. That category includes all
contracts and the most of unilateral acts.
A mortis causa act is one which produces its effects after the death of the
promisor. In other words, until then it has no effects. (the will)

Named acts and unnamed acts

The named acts are the acts described and regulated by law. Their conclusion
and performance will be governed by the specific provision of law (e.g., civil code
regulates the sale contract in Art. 1650 1762, the donation in Art. 1011-1033, the
exchange contract in Art. 1763 -1765, etc.).

The unnamed acts are those created by the parties for their specific
interests. They are as legal as the named ones. In as much as there is not a specific
provision in law, they are governed by the rules determined according to the general
principles of contract law. Sometimes an unnamed contract may become a named
one, when a special law, which describes and regulates it, comes into force. It has
happened recently with the sponsorship contract, becoming a named act by coming
into force of Law no. 32/1994.

CONDITIONS OF VALIDITY
By conditions of validity of juridical acts we understand their elements of
enforceability. Thus, the civil code provides the main conditions for the validity of
juridical acts. These conditions are the following:
- the capacity of the parties to contract;
- a genuine assent of the promisor;
- a certain subject matter;
- a lawful consideration.

The capacity
To test the capacity of concluding a juridical act does not mean to see whether a
persons mind is impaired or unsound, and whether that person understands all the
terms of the act, but, it means, to see whether that person has the ability to
comprehend the nature of the transaction he or she is engaged in and understand its
consequences.
Essentially, any person unable to take care of his or her property for any reason,
including mental illness, advanced age, or disease is considered incompetent. The
capacity, which is a state of law (de jure) is distinguishable from judgment, which is a
state of fact (de facto).
Civil code provides that any person is assumed to be able to contract unless he is
declared incapable by law. It means that without a court determination of legal

incompetence, the presumption of law is that a person has the legal capacity to
contract or to make a unilateral act. In this matter, the rule is the capacity, and the
lack of capacity is the exception. Therefore, any legal provisions related to the
absence of capacity cannot be extensively construed.
In company law, the issue is analyzed according to the rule provided by Decree no.
31/1954, which prohibits in Art. 34 the ultra vires acts (meaning, the activities of a
corporation beyond the powers conferred upon it by its charter, or by the statute
under which it was created).

The assent
The assent and the consideration constitute the juridical will of the parties.
The parties voluntarily and knowingly conclude the act as a result of their intention.
In our legal system, the juridical will of parties is governed by two principles:
1) the principle of freedom of juridical will of the parties. It means that the
parties of a civil act are free to conclude or not a certain act, to stipulate any
particular clauses, to determine the specific content of the act, and, in most cases, to
determine the form of the act.
The parties freedom to conclude any juridical acts is limited by the compulsory rules
of law and by the public policy.
2) the principle of real will of the parties. According to this principle, if there is
any incongruity between the real intent of the parties and the expressed clauses of
the act, the former is the one which will be taken into account.
It should be mentioned that, in order to apply this principle, the proof of the real
intention of the parties is taken into account. Thus, if it is possible to determine the
real will of the parties, the act has to be construed upon the expressed words used by
parties.
It results there from that the validity of the act depends on the validity of the juridical
will of the parties. Indeed, in some cases, the elements required for a valid and
enforceable contract appear to be present but in reality they are not.

For example, if a store owner accepts a gang leaders offer to protect his property
from gang violence by agreeing to pay the gang $100 per month, the store owner is
not genuinely assenting to the terms of the act. Similarly, if a used-car salesperson
deceitfully states that a car has a rebuilt engine and has never been in an accident,
the buyer who relies on that information and signs a purchase contract does not have
a valid juridical will to conclude the act.
The assent externalizes the partys intent to conclude a juridical act. For being the
basis of a valid act, the assent has to fulfill several conditions, as follows:
1) It has to exist. Any act concluded in the absence of the assent will be declared
null and void;
2) It has to be unambiguously externalized. It means to result from the words of
the parties, either orally or written expressed, or even derived from their actions.
While, usually, any reasonable means of communication are effective to externalize a
valid assent, several problems arise in case of silence. Does silence have any juridical
value?
Generally speaking, the assent cannot be implied, and in case of silence it is
considered that it is no assent. Mere inaction and silence are usually not regarded as
manifestations of intention to agree over a contract. However, some exceptions to
this rule occur, depending on the subject matter of the act.
Firstly, law expressly provides, in some cases, that the silence of one of the parties
has to be considered an assent. For instance, the civil code stipulates that the rent
contract is considered restored in force if, after the term of the contract has been
fulfilled, the parties silently continue to perform it.
Secondly, the initial agreement between the parties may constitute the basis for
regarding silence as an assent.
Thirdly, certain conducts of the party may be assumed as expressing an assent. For
instance, if an heir conducts himself like an acceptant of an inheritance, law
considers that he has performed a tacit acceptance.
3) It has to be expressed by a person who is mentally competent to
conclude the act. In other words, the person is able to comprehend the nature of
the transaction he or she is engaged in and to understand its consequences.

4) It has to be expressed by a person who intents to engage himself in a

legal relationship.
5) It has to be definite and certain as the essential terms of the act are
concerned;
6) It has to be genuine. To be genuine, the assent must be conceded voluntarily
and knowingly by each of the parties, elsewhere there is no valid contract between
them.
The lack of genuine assent may arise by the so-called vices of consent or
defects. Law considers as vices of consent the following:
a) the mistake/error;
b) the misrepresentation;
c) the duress;
d) the injury.

a) The mistake (error)

The error is generally defined as a state of mind which has not accordance with
the facts. It is an erroneous belief about the facts as they exist at the time when the
agreement is concluded. It should be mentioned that the error is produced by the
person himself. In order to vitiate the partys assent, the error should be serious. In
that case, the party is entitled to claim the cancellation of the act.
Types of errors:
a) essential error, which refers to the nature of the act (error in negotium) or to the
identity of the subject matter (error in corpore). For instance, when one of the parties
believes that the act is a donation, and the other one believes that it is a sale.
A similar case is when one party believes that he or she buys a car while the other
party believes that he or she sells a toy car.
Another example of essential error is the one which refers to the qualities of the
subject matter of the act (error in substantiam) or to the contracting person (error in

personam). A case of error in substantiam arises, for example, when the seller
believes that the subject matter of the contract is an upright piano, and the buyer
believes that it is a grand piano.
Another type of error is one concerning a persons identity. Thus, generally, an act is
avoidable for error in personam only if it is concluded intuitu personae. These acts
are concluded on the ground of one of the parties qualities
If the offer or receives an acceptance from one whom he mistakenly believes to be
the addressee of the offer, the offer may avoid the contract for error in personam.
The sanction for these types of error is relative nullity.
b) nonessential error is the false representation of less important circumstances at
the moment when the contract was signed, in the sense that the mistaken party
would have signed the act whether he had had a fair representation of those
circumstances.
A nonessential error can attract a decrease or increase in value of the benefit, but
may remain even without any legal consequences
c) immaterial error, which refers to a contract. It doesnt confer to any of the
parties unenforceable.
From another point of view, an error could be bilateral or unilateral. A mutual
(bilateral) error means that both parties are misunderstood the same matter. For
example, a mutual error is where both parties understood that the real agreement
was what one party alleges it to be, but had unintentionally prepared and executed
one which did not express the true agreement.
A future distinction should be drawn up between an error about law and an error
about the facts. It should be mentioned that within our system of law, the error about
law is not accepted for pleading somebodys ignorance. This rule is based on the fact
that law is presumed to be known from the moment it is published in the Official
Monitor of Romania.
Thus, whenever somebody is fully cognizant of the facts and the substance of his
behavior, he cannot plead his ignorance regarding the legal consequences of his
conduct for justifying the rescission of the contract. By contrary, in case of errors
about the facts the party can claim the rescission of the contract.

b) The misrepresentation
The misrepresentation is the misrepresentation of a fact that is made with
knowledge and with intention to deceive the other party. The
misrepresentation has the same essence as the error/mistake, meaning the
misrepresentation. But unlike the error/mistake, the misrepresentation results from
one contracting party action. Thus, the party who misrepresents the facts clearly
intends to do it and to deceive the second party, who, relying on the
misrepresentations, changes his or her legal position in concluding the contract.
Sometimes, a misrepresentation of facts may be unintentional. It means that there is
no misrepresentation, but the act is still avoidable, because it was concluded by
mistake.
In order to have a misrepresentation, law commonly requires either an affirmative act
or an express statement. Occasionally, silence may constitute a misrepresentation of
facts leading to fraud. The intention to deceive is expressed by the partys intention
to create a false impression. Since misrepresentation requires this intent, mere
negligence or carelessness cannot constitute fraud.
From a structural point of view, the misrepresentation has two main elements:
1) intentional element (which consists of the will to fraud the other party),
2) material element (which consists of the activities performed in order to lead the
other party into mistake).
Generally, mere failure to disclose information to the other party does not constitute
a misrepresentation, because law does not impose a duty of disclosure. There are,
however, a number of exceptions to this rule. Suppose one party knows certain
material facts and knows the other party is not aware of them.
Moreover, he also knows that if those facts were known by the other party there
would be no contract. For example, when a prospective seller of land has knowledge
of a hidden defects in the property that cannot be observed through inspection. If the
seller fails to inform the purchaser about these defects, the seller could be held liable
for misrepresentation because his or her silence was intended to mislead the
purchaser into assuming there were no defects.

However, an active ceasing of the fact is the most obvious type of misrepresentation.
For instance, when the seller of a used car turns back the odometer to conceal the
number of kilometers the car has been driven, misrepresentation has occurred.
c) The duress
The relief from an agreement on the grounds of duress is clearly avoidable if a
person is deprived of his freedom or his property through physical or moral
force. Even the threat of physical force, although not carried out, constitutes duress.
It should be mentioned that duress is not limited to the above situations.
Indeed, undue influence, which exists when a person exercises mental coercion over
another, can also lead to lack of genuine assent.
Furthermore, the coercion exercised not only against the contractual party, but
against a relative or closed friend of the party as well constitutes duress, in a juridical
meaning.
The essence of duress is the lack of free will or voluntary assent. Any wrongful act or
threat that overcomes the free will of the consenting party constitutes duress. In
other words, any economic coercion, threats on a persons family and the beloved
ones, and other uses of moral or social force to put a person in such fear that his or
her act is not voluntary, constitutes duress.
In order to determine whether a contract can be avoided on account of duress, it is
necessary to ascertain whether the acts or the threats were wrongful and whether
these events and not the free will of the party have induced the required contractual
assent.
At the same time, it should be mentioned that duress cannot be limited to the fear
that might overcome an ordinary person. If a contracting party, whether brave or
timid, is actually coerced to conclude a contract, duress has occurred. Thus the state
of mind of the person who is being threatened must be examined.
Unlike misrepresentation, duress can arise not only from the activity of the
contracting party, but also from the wrongful activity of a third party.
As a conclusion, it should be mentioned that, as a vice, duress presupposes an
intentional element and a material one as well. Thus, the intentional element is the

fear induced to a contracting party for determining he or she to conclude a juridical

act.

d) Injury
Injury represents an obvious disproportion between mutual promises of the parties
within a bilateral contract.
In fact, injury is not provided by civil code as a real vice of consent, but it is
commonly recognized that it has this effect.
Injury includes the absence of the meaningful choice of one party together with the
terms of the contract, which are unreasonably favorable to the other party.
It should be mentioned that not every juridical act could be avoided on the ground of
injury. Law requires several conditions that have to be fulfilled to obtain the rescission
of the act based on injury.
Thus, for the injury in case of the underage child, the following conditions must be
fulfilled
*) it has to be a bilateral act (e.g. a contract). That condition is imposed by the fact
that only these kind of juridical acts are defined as promises made in exchange of
promises. As consequences, bilateral contracts are susceptible of disproportion of
parties mutual promises;
*) It has to be a commutative contract, otherwise the disproportion assumed by the
parties appears as a normal risk of an aleatory contract (the terms commutative
and aleatory contracts are explained in another chapter of this book); .
*) the party who alleges to avoid the contract has to be an underage person between
14 and 18 years old.
*) it has to be a contract whereby such minor can conclude on his own name and
without any additional consent.
For the injury on case of an adult, the following conditions must be fulfilled:

It has to be a bilateral contract

It has to be a commutative act, made by onerous title

It is necessary that one of the party, taking advantage of the state of need,
inexperience or lack of knowledge of the other party stipulates in its own
favour or another person a benefit of a considerably greater value at the time
of concluding the contract than the value of their own benefits. As an
exception, in case of the sale contract, the ridiculous low price is sanctioned
with the relative nullity of the contract without the need for the party to
demonstrate that the other had taken advantage of the state of need, lack of
experience or lack of knowledge of the seller.

In case of the adult, the action for annulment is admissible only if the damage
exceeds half the value of the performance guarantee or executed by the injured
party at the time of concluding the contract and the disproportion must subsist until
the request for cancellation.

The subject matter

Art. 1225 (1) NCC stipulates that the subject matter of the contract is the legal
operation, such as the sale, the lease, the loan and so on, agreed by the parties.
Art. 1226 (1) NCC stipulates that the subject mater of the obligation is the benefit to
which the debtor engages.
The distinction between the subject matter of the contract and the subject matter of
the obligation is very useful. Therefore, the subject matter of the contract is the same
with the subject matter of the civil legal relation and the subject matter of the
obligation consists of the positive or negative performance that contracting party
undertakes to each other.
Within a juridical act, the parties conduct can refer to goods and thus, the toads
become subsequent objects of the act.
In order to be valid, the subject matter of a juridical act has to fulfill seven different
conditions requested by law, as follows:
1. The subject matter has to exist. Law considers the subject matter as existing even
if it exists in the near future, unless it does not have an actual existence (e.g., the
sale of future harvest is a valid contract). A transaction in futures occurs when a

person contracts to deliver goods that either does not exist, or the seller does not
own them at the time of contracting. There is only one exception from this rule. It is
the case of the sale of future inheritance, which is completely prohibited by law, not
on the ground of non-existence of the subject matter, but on the ground of immoral
consideration.
If the object does no longer exist (at present), even if it has existed in the past, the
subject matter does not fulfill this requirement.
2. The subject matter has to belong to the civil circuit. Thus, according to the civil
code only the goods on the market can be the object of a contract.
3. The subject matter has to be identified or identifiable. The process of selecting or
setting aside the specific goods is referred to as identification of the goods within the
contract. According to the civil code, the goods individual established (res ceria) are
identified by their features, while general established goods (res genera) are
identified by their quantity, quality, number, size, etc.
The identification of goods has important legal consequences for the contracting
parties. Thus, if the goods are individual established and are lost, damaged, or
destroyed, the seller supports these risks. By contrary, when the goods are general
established, the seller is bound to deliver goods from the same category, unless the
risk has passed to the buyer. In this last case, the buyer bears the loss.
It should be mentioned that the act is null, unless its object/subsequent subject
matter is identified or, at least, identifiable.
4. The subject matter has to be legal or material possible (impossibilium nulla
obligatio est). The impossibility of the subject matter means the impossibility of
anyone to perform a particular promise. For example, is not material possible to
alienate the moon. It is neither legal possible to sell goods that belong to public
property of the state.
This requirement is not considered fulfilled if the performance of the contract is
impossible only for a particular promisor, but it is generally possible.
For instance, a contract whereby a part promises to the other to pay an amount of
5. The subject matter has to be free from legal or moral prohibition. It means that the
subject matter of the act should be lawful. Law usually cannot enforce an act

whereby the parties promise to do something illegal or against public policy or

morals.
6. Each party has to assume his or her owns behavior. It means that nobody can
promise somebody elses conduct. For example, it is forbidden to sell the goods
which belong to somebody else, or to engage performance the performance of
somebody else.

The consideration
In order to be enforceable, a legal consideration or cause must support a juridical act.
The consideration representsthe goal pursued by the parties who conclude a
particular juridical act.
The consideration is analyzed by our juridical literature from two points of view:
- the instant consideration, which is essentially the same in all acts of a certain type;
- the intermediate or specific consideration, which is different from a certain
agreement to another. For instance, the parties who conclude a sale contract resume
the same instant consideration in all cases; the seller is interested to obtain the price
while the purchaser is interested to acquire the goods.
Nevertheless, every seller has his or her own intermediate- consideration for selling
(e.g., he or she wants to buy another object with that money, or he wants to pay a
former debt, etc.). At the same time, every purchaser has his own intermediate
consideration for buying (e.g., he or she wants to use the object or he wants to sell it
for a better price, etc.).
In order to support a valid contract, the consideration has to fulfill several conditions
as follows:
- to exist;
- to be real;
- to be non-prohibited by law or public morals (contra bonos mores). For instance, a
promise to undertake a social obligation cannot be considered a valid one.

The problem of the validity of the consideration does not arise unless the
intermediate cause is analyzed. The instant cause is always valid, being an abstract
one.
In fact, the civil code provides two presumptions: firstly, that the consideration exists,
and, secondly that it is valid.

The form
The observance of the proper legal form is one of the validity conditions required for
concluding a juridical act.
Within the common understanding, many people assume that juridical acts should be
drawn up in a written form in order to be enforceable. In fact, law does not usually
impose that. There are only a few types of juridical acts that should be concluded in a
certain form imposed by law for their enforceability.
It means that within Romanian law system, the formalism does not apply as a
principle, despite the normal exceptions provided by law.
The legal rules, which stipulate formal requirements, are divided into three main
categories as follows:
1) form requested by law ad validitatem. This form has to be observed for
the very validity of the act, which is compulsory. The non-observance of this
form flaws the act and a later complaining with the legal rules cannot cover the
nullity of the act.
Therefore, several acts are valid only when they are drawn up in a deed stricto sensu,
meaning an authentic form (e.g. donation, sale of land, articles of partnership or
mortgage). Law also requires some formal conditions for certain other acts, as it is
the case of the will (the will is valid only if it is executed in the accordance with the
formalities prescribed by statute for each type of will).
2) Form requested ad probationem. This form has to be observed in order to
proof (to attest) the content of the act, although the act is valid even in the
absence of the due form.

Sometimes, the simple consent of the contracting parties is enough for concluding a
valid agreement and law requires a written form only for constituting evidences that
can be used within a lawsuit. Examples of such acts include insurance contract,
voluntary deposit, lease or settlement.
However, the civil code specifically requests the written form for an act with an
object having a value over 250 lei. Due to the power of the national currency, it
means that today, the written form is requested for proving any agreement.
3) Form requested for the opposability to third party. In other words, the act is
valid between contracting parties, but in order to make it opposable to third
parties, it should be concluded in a specific form. The form imposed by law has
to be also observed; otherwise the act could not produce its effects over any third
party. For example, there can be mentioned the legal requirement to notify the
debtor within the assignment of debts and the registration of selling and purchasing
contracts of land or of real estate.
In fact, the assignment of debts is a debt transfer to another persons benefit. Within
a contract, one of the contacting parties can transfer his contractual rights to a third
party. The person entitle to do that is the so-called assignor while the recipient of
these rights is the so-called assignee. The contract between the assignor and the
assignee has no effect against the debtor, unless he or she is informed about that
assignment, otherwise the debtor may validly pay his debts to the assignor.
Being governed by the same rule, a land or real estate contract has effects only
between the seller and the purchaser, unless it is registered in the real estate
register. This is why, the purchaser of the land or other real estate would not be able
to prove his rights in case of eviction from a third party, unless he or she has
observed the due form of act.

THE MODALITIES OF THE JURIDICAL ACT

As it was mentioned above, juridical acts may be pure and simple or affected by
modalities. The acts modalities are future events that determine the existence or
performance of the act.
The modalities of the juridical act are: the term, the condition and the task.

The term
A term is a sure and future event until the beginning or the extinguishing of
a right and of correlative duty adjourns. There are two categories of terms:
suspensive and extinctive terms.
A suspensive term is one that adjourns the beginning of enjoyment of a
right and of correlative duty (e.g. the term when the debtor becomes liable for
devolve duty, the so-called term of payment).
An extinctive term is one that adjourns the end of a right and of correlative
duty (e.g. the date of a creditors death within a life annuity contract).
The term, either suspensive or extinctive, affects only the performance of the act, not
its very existence. Therefore, each of the above categories of tenns produces
different effects as follows:
- If the promisor (the debtor) performs his obligation before the suspensive term
provided by the contract, the payment is valid. In other words, the debtor has
voluntarily renounced to the benefit of the term;
- Until the payment is not due, the creditor cannot claim the payment of his debt
right and the debtor is not liable to pay;
- After the payment is due, the creditor is entitled to pursue the debtor (to sue) for
imposing him to execute his obligation;
- Unlike the suspensive term, the extinctive term brings the debtors obligation to its
end. It means that the creditor may claim his debt right and the debtor is liable for
his duty;

The condition
A condition is a future and uncertain event, which suspends the creation or
the execution of legal obligation. Apart from term, within condition the
achievement of the future event is not sure. The conditions, as modalities of juridical
acts, can be classified upon many criteria.

Along with specific effects arising from them, there are suspensive conditions and
resolutive conditions.
A suspensive condition is one upon which the enforceability of a contractual
right and its correlative obligation depend. It should occur before the party
executes his obligation within the contract.
For instance, ,the further promise Ill sell you my apartment, if I have to move in
another locality is a suspensive condition.
A resolutive condition is one upon which the cancellation of a contractual
right and its correlative obligation depend. If that condition occurs any
performance under the contract takes end.
The following example expresses a promise affected by a resolutive condition Ill sell
you my car, but if I have to move in another locality, the sale is canceled.
A condition, either suspensive or resolutive, affects not only the Iperformance of the
act but its very existence. Therefore, the condition has the following effects:
- Until the achievement of the suspensive condition (pendente conditione), the
creditor is not entitled to request the performance of the contract and the debtor is
not liable to execute it. Nevertheless, if the debtor fulfils his obligation, he can claim
the refund of his payment because it was not due. In this case, he is entitle to obtain
the restitution;
- after the achievement of the suspensive condition (eveniente conditione), the act
becomes a, pure and simple one and as consequences the creditors right is
retroactively strengthened;
- if the suspensive condition cannot be achieved, any juridical relationship between
the parties is retroactively canceled;
- until the fulfillment of the resolutive condition (pendente conditione) the act has the
appearance of a pure an/d simple one and therefore the creditors right is
enforceable and the debtor is liable to execute his obligation;
- after the resolutive condition is achieved (eveniente conditione), the act is
retroactively canceled. Consequently, the parties should return their achieved
services, just as no contract had been concluded between them;

- if the resolutive condition cannot be achieved, the act is retroactively considered as

a pure and simple one.
Another distinction is made between the fortuitous (causative) condition, the joint
(mixed) condition and the willed (potestative) condition.
Firstly, a condition is fortuitous (causative) whenever it consists of a casual
event.
For instance Ill lend you my umbrella, if it rains.
Secondly, a condition is joint (mixed) whenever it depends on one of the
parties will.
For example Ill buy your apartment if I get married until the end of the year.
Finally, a condition is willed (potestative) whenever it depends only on one of
the parties will.
Law allows the conditions that depends on the promisees will (e.g., Ill buy your
apartment, whenever you want to sell it), but prohibits it if depends on the
promisors will (e.g. Ill buy your apartment, if I feel like it).
Since it affects the existence of the creditors right and the debtors duty,
the condition has a retroactive effect. It means that, its achievement makes the
act a pure and simple one (in case of a suspensive condition), and cancels it (in case
of a resolutive condition).

The task
A task is an obligation to give, to do or not to do, required by the grantor to
the grantee, within a gratuitous act(donation or a legacy, either bequest or
devise). It may be required to the benefit of the grantor, to the grantees benefit or to
the benefit of a third party.
An example of tasks provided to the grantors benefit includes the contract whereby
the grantor required to the grantee to pay an amount of money to a third person.
However, the task may never overtake the value of the gift, otherwise the contract
becomes a bilateral one.

A task may be also included in a will. For instance, the devise whereby the devisor
specifically requests that the devisee cultivate the land that constitutes the object of
the devise is a legacy affected by a task provided to the benefit of the grantee.
A task provided to the benefit of the third party is almost similar with the contract to
the benefit of a third party. Essentially, a contract to the benefit of a third party is a
contract whereby the promises primary interest is to bestow a ~ft upon a third party
(e.g. a life insurance whereby the insurance company promises to pay a certain
amount of money to the benefit of a non-contracting third party if the insured person
die).
Unlike the contract to the benefit of the third party, a donation or a legacy affected
by a task stipulated to the benefit of the third party grants the grantee (e.g., the task
imposed to the legatee to pay a certain alimony to the surviving spouse of the
legator).
Whether the grantee does not execute the task, the gratuitous act is not retroactively
canceled, but the grantor may revoke it.

THE EFFECTS OF JURIDICAL ACTS

The effects of the juridical act mean the rights and the correlative duties that
arise, modify or extinguish it. The effects of juridical acts are identically with their
content. Thus, in order to determine the acts effects, the content of the act (the
parties rights and obligations) should be analyzed together with the parties will.
It means that the following steps should be achieved:
1) to determine the existence of the act and to prove it through the means of
evidence;
2) to determine the acts effects through the interpretation of the acts provisions.
It should be mentioned that the content of each provision expresses the parties will
and their intention to conclude that particular act.
In order to analyze the content of the acts provisions the following interpretation
rules stipulated by civil code should be observed:

- juridical act has to be interpreted according to the real will of the parties, despite
the literal meaning of the words
- juridical act yields not only the effects the parties had in mind at the time it was
concluded, but also the effects requested by law or by public morals
- the usual clauses of the act are considered written, unless the parties expressly
forbid them
- the clauses of a juridical act are systematically interpreted, according to the
meaning of the whole act
- whenever a clause has two different meanings, it should be interpreted that it
produces effects, not in the way that excludes any effect
- doubtful clauses are interpreted according to the nature of the act ;
- if a doubtful clause cannot be understand otherwise, it is interpreted according to
the customs of the place where the act is concluded
- doubtful clauses are always interpreted to the debtors benefit
- the act will be essentially considered to cause the effects intended by the parties,
no matter how general are the words used in the act
- whenever the parties use an example within the act that does not mean they
intended to restrict their obligations at this example
The effects of a juridical act are governed by the following three principles:
a) the principle of compulsory force of the act;
b) .the principle of irrevocability of the act; c) the principle of relativeness (privacy)
of the acts effects.

The principle pacta sunt servanda

The principle of compulsory force of the act is expressed by the Latin I idiom pacta
sunt servanda. Indeed, the civil code synthetically expresses this idea by stipulating

that the conventions legally concluded have the force of law between contracting
parties.
Furthermore, the principle of compulsory force is effective even upon the court of law.
For instance, the court solves the litigation between parties according to the legal
provisions and also based on the convention existing between the litigants.
Nevertheless, law expressly provides the exceptions from the compulsory I force of
the act. Thus, despite the parties will the contract takes end is the following cases:
- the death, incompetence, insolvency or bankruptcy of any of the contracting parties
terminates the mandate contract
- the contracts concluded intuitu personae are generally terminated by the promises
death.

The principle of irrevocability of the act

The principle of irrevocability of the act restrains the promisor to revoke his promise.
This rule is a corollary of the. previous one (the principle of compulsory force of the
contract).
By way of exception, there are several cases where the unilateral revocation of the
act is allowed by law. For instance, law allows: the cancellation of a gift made by
one of the spouse to another
- the termination of a lease (rent) contract by the lessee, if there is no certain term
for the contract. A lease is an agreement whereby one party (the so-called landlord)
transfers his or her right into immediate possession to the other party (the so-called
lessee) for a commonly consideration, the so-called rent
- the dissolution of a partnership;
- the termination of the gratuitous mandate by any of the parties
- the termination of a gratuitous deposit by the deponent
There are also several unilateral juridical acts that may be merely revoked by their
author, such as:

- the will. The testator may revoke a will at any time until his or her death.
Notwithstanding, conceptually, a will is not a true juridical act until the testators
death, because it has no juridical force. Obviously, after the testators death it cannot
be revoked anymore;
- the relinquish of an inheritance. To revoke a relinquish of the inheritance means to
accept the inheritance. Therefore, the conditions requested for revocation of the
relinquish are the same as they are for the
- acceptance of an inheritance (the acceptance should be expressed within 6 months
from the death of the person inherited and the inheritance should not to be
previously accepted by another heir);

The principle of privacy of the act

According to the principle of relativeness (privacy) of the acts effects, the effects of a
juridical act are produced strictly between the parties of the act (promisor and the
promisee). Hence, a plaintiff can maintain a lawsuit only against the party with whom
the contract has been concluded.
In order to understand that principle, the following basic notions have to be
explained:
- party (the so-called contracting party in case of a bilateral act);
- third party;
- interested party.
A party is a person who concludes a juridical act, either referred to as an author
(in case of a unilateral act), or as a contracting party (in case of a bilateral act).
Depending on the nature of the act, the parties can have specific names: grantorgrantee, legator-legatee, assignor-assignee, bargainer-bargainee, leasor-Ieasee,
landlord-tenant, vendor-purchaser, consignor-consignee, devisordevisee, mortgagormortgagee, etc.
From a juridical point of view, a .party can be a single person or group of Itwo or
more persons, whether they have the same interest within the act.

A third party is a person who was not involved in the conclusion and the
performance of the act.
An interested party (known, also, as ayant cause or habentes causam) lis a noncontracting party who uses the existence of the act as a basis for a lawsuit.
Essentially, the interested parties are persons who are recognized either as aving
enforceable rights or as being liable for duties created by an act where they e not
parties. These persons are grouped into three classes:

1. Universal successors and successors with universal title, either intestate or

testamentary.
A universal heir succeeds an universitas bonorum, with assets and liabilities, and
every juridical act made by the deceased takes effects upon him or her.
In company law, a case of universal succession is the merging through absorption.
The absorption supposes that a company becomes a part of another company (the
so-called absorbent company). The former company ceases its existence but the
absorbent company continues to exist and succeeds into the rights and duties owed
by the former corporation. One of the absorption effects is that the absorbent
company retains its name and identity and, at the same time, acquires the assets,
liabilities, franchises and power of the company that ceases to exist. Another case
provided by company law is the merge. Within merge, two or more companies are
united and form a new company. At the same time, the original companies cease to
exist. In both the case, the absorbent company or the company resulted from merge
acquires the assets and liabilities of the former company/companies, being its
universal successor.
Successors with universal title are persons who bequeath a fraction of the deceaseds
patrimony. They have the same position like universal heirs, being bounded by any
contract or unilateral act made by the deceased. The only distinction between them
and the universal heirs is that the former inherits a fraction of the patrimony,
whereas the latter inherit a whole patrimony.
For example, within company law, the division of a company leads to such succession
with universal title. Thus, the divided company ceases to exist and the resultant
companies bequeath fraction of its patrimony.

Universal successors and successors with universal title are interested parties in any
act concluded by the deceased because they inherit the patrimony as it is (e.g.
decreased by expensive gifts). Thus, even if they were not parties of the act, due to
their inheritance right, they become interested parties. It should be mentioned that,
there are cases where law allows to a special category of heirs to avoid the gratuitous
acts made by the deceased.
2. Successors with a particular title
A successor with a particular title is a person who acquires a certain enforceable
right, by any lawful transfer. For instance, such persons are the purchasers, the
assignees, the heirs who inherit a specific right. The transferees are interested
persons only related to the acts which fulfill certain conditions as follows:
- the act is previously concluded;
- the transfer
- the act refers to the right acquired by the transferee.
We emphasize that the transferee can be either a party (in the act whereby he or she
acquires the right), or a third party (in the act which has another object than the
acquired right).

Simple creditors
A creditor is a person to whom an obligation is due. According to law, the creditor has
the right to demand and to be recovered by a certain performance of his debtor. The
creditors who are entitled to a lien (e.g. a charge, holds or claims upon the property
of another as security for some debt or charge) are generally referred to as secured
creditors. Apart from them, there are some creditors who have no such guarantees,
known as simple creditors.
Inasmuch as their claims are unsecured, the simple creditors are interested parties in
any juridical act made by their debtor, because such acts may influence the
promisees solvency. Therefore, law allows them to avoid the gratuitous acts
concluded by their debtor with the view to jeopardize the creditors rights.
Lets take the following example: we suppose that X owns $500,000 to Y.

There is considered real exception to the principle of relativeness effects of the act
the so-called contracts to the benefit of a third party (e.g. life insurance contract).
But, the universal successors and successors with universal title, as well as the
simple creditors are. considered apparent exceptions from above mentioned
principle.

THE NULLITY OF JURIDICAL ACTS

Definition
An act concluded with the observance of legal rules is a valid act. It can be
enforced under the contracting parties and can produces its legal effects stipulated
by law. But, whenever, the legal provisions are not observed and the act
disregards certain legal expressed rules, then the act is void or avoidable.
It means that, an act concluded against law is sanctioned through a specific
civil sanction, the so-called nullity.
The nullity is that juridical means which deprives the act of its effects. It should
be mentioned that, within Romanian legal system, the concept of nullity does not
destroy the act itself, but only its effects. Thus, nullity is not seeing as an organic
state of the act. It is only a sanction due to the non-observance of legal rules at the
time when the act was concluded.
The nullity fulfills a preventive function, because the parties refrain from concluding
an unlawful act. But, when the acts are concluded without the observance of legal
rules, then the nullity has a punitive function.
It should be noted that the nullity applies from the moment when the act was
concluded (ex tunc) and consequently the parties are restored to the
positions prior to their agreement. It is just as no act has been ever concluded
between them.
Nevertheless, the nullity is different from dissolution or rescission of the contract,
which presupposes a valid act that cannot produce its effects any more due to
specific events.
Thus, the nullity supposes that the act was defectively created, against law and as
result has never existed.

Classification of nullities.
a) The absolute and the relative nullity.
An act concluded disregarding the legal provisions could be void or avoidable,
according to the nature of the interests protected by nullity.
When the interests protected by nullity are public interests, the act is null
and void. It means that the nullity is absolute.
If the protected interests are private, the act is only avoidable and the
nullity is relative.
A void act is not enforceable by anyone. It is a null act or an act having no legal force
or validity because it was concluded disregarding the statutory provision of law. The
following reasons call the absolute nullity of an act:
- when one of the validity condition of the act is missing;
- when the object or consideration is prohibited by law or public morals;
- when the act has been concluded by fraud and evasion of law;
- in case of activities performed by a company beyond the powers
conferred upon it by its articles of association or other constitutive deeds (known as
ultra vires acts);
- when a special permission requested by law for the transaction is missing;
- in case the form requested ad validitatem by law has not been observed.
An avoidable act has an in-between status. It means that it can become a valid act
because one or more of the parties have the power to render it enforceable.
For example if the lack of genuine assent (error, mistake, duress or injury) occurs
within the conclusion of the act, it can be avoided.
This classification presents a particular importance because of the differences
between the rule governing the void and the avoidable acts. Thus:

1. Anybody may claim to make null and void a juridical act. In a such as it is a high
degree of irregularity, law draws no limits in enforceability of the right to sue.
By contrary, only the interested persons may avoid an act (e.g. the party whom
consent was affected by one of the vices of consent).
2. The absolute nullity can be claimed anytime; there are no limits in time for
claiming an act to be null and void.
As far as the relative nullity is concerned, a party who benefits from nullity can claim
the avoidance of the act only within a specific limit of time, the so-called extinctive
prescription (the general time of extinctive prescription is 3 years).
3. Generally speaking, an avoidable act can produces its effects until its avoidance is
claimed. Thus, it is up to the party who benefits from the nullity to claim the
cancellation of the act. But, if the party ratifies the act by covering its defects, then
the act is valid and produces its effects.
This situation cannot occur for a null and void act that cannot be subject of
ratification because its defects are so essential, that nothing can cover them.

b) According to the extent of the nullity, there are partial and total
nullities.
Total nullity affects the whole act, while partial nullity affects only a part of it. In
this latter case, the parts of the act, which are not avoided by nullity, produce their
legal effects.
It should be mentioned that, within Romanian legal system, the partial nullity is the
rule, and the total nullity is the exception, Therefore, whenever it is possible, the
tendency is to save the act, and to cancel only those clauses which have been drawn
up through the non-observance of legal rules.

The effects of nullity and avoidance

As it was mentioned above, the nullity of the act deprives it of its effects.

It is obvious that an act null and void or avoidable cannot produce any effects in the
future (ex nunc). As for the past (ex tunc), the effects should be retroactively
eliminated.
The nullity or avoidance of an act is governed by three principles:
- principle of retroactivity. The rule is that an act null or avoided cannot produce
effects in the future, and the effects already produced will be eliminated.
If the parties of the act have not fulfilled their obligation until the nullity is
established, the judge declares within the nullity the ineffectiveness of the act. But,
when the parties have total or partial fulfilled their obligations, the judge declares
within the nullity or the avoidance of the act the retroactive elimination f acts
effects. Consequently, the parties are liable to return each other the services already
carried.
Nevertheless, this principle has its exceptions. An example would be the case of a
putative marriage
- principle of restoring the parties into their positions before the contract (restitution
in integrum).
Exceptions to this rule include the right of the bona fide acquirer (i.e., the acquirer in
good faith, having no knowledge that the act is defective) to maintain the benefits
yielded by the goods acquired on the basis of a null act.
- principle of cancellation of accessory acts. It means that the nullity or avoidance of
the act also affects the subsequent acts concluded on the basis of a null act.
This principle represents an exception of the rule .that an accessory act has the same
destiny as the principal act has (accesorium sequitur principale). It should be
mentioned that the case of a good faith tenant is an exception to this principle.
This classification presents a particular importance because of the differences
between the rule governing the void and the avoidable acts. Thus:
1. Anybody may claim to make null and void a juridical act. Inasmuch as it is a high
degree of irregularity, law draws no limits in enforceability of the right to sue.
By contrary, only the interested persons may avoid an act (e.g. the party whom
consent was affected by one of the vices of consent).

2. The absolute nullity can be claimed anytime; there are no limits in time for
claiming an act to be null and void.
As far as the relative nullity is concerned, a party who benefits from nullity can claim
the avoidance of the act only within a specific limit of time, the so-called extinctive
prescription (the general time of extinctive prescription is 3 years).
3. Generally speaking, an avoidable act can produces its effects until its avoidance is
claimed. Thus, it is up to the party who benefits from the nullity to claim the
cancellation of the act. But, if the party ratifies the act by covering its defects, then
the act is valid and produces its effects.
This situation cannot occur for a null and void act that cannot be subject of
ratification because its defects are so essential, that nothing can cover them.
b) According to the extent of the nullity, there are partial and total nullities.
Total nullity affects the whole act, while partial nullity affects only a part of it. In this
latter case, the parts of the act, which are not avoided by nullity, produce their legal
effects.
It should be mentioned that, within Romanian legal system, the partial nullity is the
rule, and the total nullity is the exception, Therefore, whenever it is possible, the
tendency is to save the act, and to cancel only those clauses which have been drawn
up through the non-observance of legal rules.
c) Taking into account if the nullity is or is not provided by law, there are implied or
express nullities.
Whenever law expressly establishes that the infringement of the rule leads to the
state of nullity of the act ,the nullity is expressed.
By contrary, the nullity is implied when law does not expressly provide it, but the
cancellation (avoidance) of the act results indubitably from that legal provision. For
instance, according to civil code all donations should be concluded in authentic
form. In this case, even if law does not expressly provide the nullity, the act is null
because the conditions imposed for its validity have not been observed.