CONTRACT LAW

OVIDIU IOAN DUMITRU

Introduction

In the absence of a unified European contract law, the study of the various laws of contract is
one of the core subjects of comparative law.

Farnsworth said that ”Of all the areas of law, perhaps none has been subject to comparative
study as consistently, frequently, and intensely as contract law”

Over the decades, contracts have become more numerous, more sophisticated and also more
international. As surprising as it may sound, most cross-border transactions are still governed by
national jurisdictions.
However, the continuous development of party autonomy, with the party autonomy in the center,
increased the need of information of the contracting parties on the national contract law
applicable.

Despite the failure to create a common European Contract law, there are common principles
inherited from the history and rediscovered in the last centuries.

Next to principles of equality, proportionality, subsidiarity and legal certainty, national contract
laws share other guiding principles, like: contractual freedom, binding force of contracts, and,
to a certain extent, good faith and legitimate expectations.
DEFINITION OF
CONTRACTS
Contract is a concept which has evolved over time and which, from a comparative
point of view does not take the form of a uniform model.

There is a common understanding all over the world on what means a contract and no
matter the legal system, we may simply say that a contract is a legally binding, oral
or written agreement, in which parties exchange their will.

As a definition, in Romania, the contract is the „agreement between two or more

persons with the intent to establish, modify, transfer or extinguish a legal
relation.”
(Art.1166 Romanian Civil Code)
Draft Common Fram of Reference
Article II-1:101

Common European Sales Law

5.2.(INT)

Principles of European Contract Law (PECL)

Code civil 1804
Art. 1101
A contract is a agreement (convention) by which one or several persons bind themselves towards one or
several others to transfer, to do or not to do something

Code civil 2016

Art 1101
A contract is a concordance of wills of two or mode persons intended to create, modify, transfer or extinguish
obligations

BW (Dutch Code)
Art. 3:33
A juridical act requires an intention to produce juridical effects, which intention has manifested itself by a
declaration
Art. 6:213
A contract in the sense of this title is a multi-lateral juridical act whereby one or more parties assume an
obligation towards one or mode other parties

BGB (German Code)

BGB merely explains that contracts are species of a broader category of legal transactions
 CLASSIFICATION OF CONTRACTS
The Classification of contracts has a purely scientific purpose in helping people to better understand the legal nature of the
contract.
By the way they were created
contracts may have more or less requirements which have to be verified.

If for some we need just to check the validity conditions, for other types of contracts we have to verify, under the risk of avoidance of the contract, the required form or the
deliverance of the good.

We may find these types of contracts far away in history, in the period of social and political enrichment of the Roman Empire, when only some contracts were possible to
be enforced.

1. Consensual contracts. They are enforceable with no formal conditions requested, re enforceable by simple consent.

a sale-purchase of a mobile phone or any other movable good,

a mandate,
a construction contract,
a supply contract

2. Formal contracts. They are enforceable only if there are observed some additional formal conditions, other than the simple consent.
a sale-purchase of a land,
mortgage
farming (agriculture) contract

3. Real contracts. They can be concluded only by delivering the good by the transferor to the transferee.
loan or deposit contracts
In Europe there the real contracts vary a lot from state to state, depending on the their evolution, in UK remains one of the origins of the binding force of contracts, in
France we have the same as in Romania, being our source of inspiration, in Germany there are as examples the mortgage or loan, in Switzerland we may see also the
transportation contract
By the way they are carried out

Contract with an instantaneous execution (uno ictu), those in which the parties
are required to performe the benefits they owe to each other in one and the same
time, usually the moment when the contract is concluded.

Examples: sale contract, donation, the exchange contract etc

Contracts with continous performace = those in which the obligation of both

parties or at least one of them must be carried out gradually over a period of time.

Example: rent contract, maintenance contract etc.

We should mention that a sale contract where the price is paid in monthly rates is a
contract with an instantaneous performance, even if the parties agreed that the
transfer of property right will take place upon payment of the final installment of the
payment price.
 By their content, meaning the reason why parties want to conclude the contract, the contracts
can be:

Unilateral: one or more parties assume an obligation, without in exchange for the other party assuming
one, as a result having obligations for only one of the parties and lacking the interdependency and
reciprocity of the bilateral ones

Examples: donation contract, free lease contract

Bilateral contracts are the ones when the obligations arising from it are reciprocal and interdependent.
The majority of contracts are bilateral, mainly because the intention of the parties when they want to
contract is to gain something in exchange of another good and by that both parties assume obligations.
Example: sale contract, rent contract, maintenance contract etc.

In most of the legal systems around the world,

France: contract synallagmatique and unilatéral,
Germany: gegenseitiger and einseitiger Vertrag,
 By the the aim pursued

All European jurisdictions provide that an agreement is binding and enforceable if both parties promise nothing in
return for what they have received.

Contracts made by onerous title are those contracts in which each party promises an economic benefit
to the other in exchange of another economic benefit
commutative contracts – those in which the parties know, from the very moment of concluding the
contract, which will be their mutual obligations.
Examples: sale contract, lease contract, construction contract
aleatory contracts – an agreement wherein the performance of one party depends on the occurrence of
an uncertain event
Examples: insurance contract

Contracts made by gratuitous title are, on the other hand, the ones in which one party promises to the
other an economic benefit without expecting, in exchange, any promise
 By the effects they produce

Constitutive or translative contracts.

These contracts are concluded in order to transfer real rights, contracts giving rise to debt rights
The number of these contracts are unlimited.

Declarative contracts are the ones that consolidates a pre-existing juridical situation.
For instance, the settlement is a declarative contract.
 By the way the parties express their will

Negotiated contracts, those that are entirely negociated by the parties.

Adhesion contracts, those contracts whose content is predetermined entirely by one party. The other party is free to
agree to them or not. If he agrees, he simply joines to the specific contract, without any possibility to negociate.
Examples: insurance contract, communication, utilities etc.