Reglementarea principiului non-cumulului răspunderii civile contractuale cu răspunderea civilă extracontractuală
Regulation of the principle of non-cumulation of contractual and extracontractual civil liability

Summary/Abstract: The principle of non-cumulation of contractual and extracontractual liability implies that the victim of a loss does not have the option to choose between the contractual and the extracontractual (tort) regime when the conditions for contractual liability are met. This principle does not refer to a prohibition against obtaining double compensation – one on a contractual basis and another in tort, through concurrent or successive actions – as such cumulation is already excluded by the principle of equivalence between damage and reparation. Likewise, the principle does not concern the prohibition of invoking certain rules belonging to the contractual liability regime and others belonging to the tort regime, based on the victim's preferences; the victim is bound to invoke a single regime, which shall be applied according to its own specific rules.The principle of non-option between contractual and extracontractual liability, established for the first time in the Civil Code under Article 1350, does not constitute an innovation for legal practitioners who, even in the absence of a specific regulation, applied the principle under the 1864 Civil Code. However, its legislative codification reflects the vision of the national legislator, who sought to achieve a strict separation between contractual and extracontractual liability.The inspiration for the current regulation is found in the Civil Code of Québec, but the rule is one specific to Francophone legal systems. In countries such as France, Luxembourg, and the province of Québec in Can ada, the non-cumulation rule is applied. Until recently, the rule also applied in Belgium, but the latter has abandoned its application, instead regulating a right of option between the two regimes.The paradigm shift adopted by the Belgian legislator aligns with a European trend toward the unification of civil liability regimes, which leads us to question whether the regulation of the non-cumulation principle in the 2009 Civil Code is legitimate. Given the overall framework of civil liability within the Civil Code, as well as the distinctions between contractual and extracontractual liability established by the legislator, the regulation of the non-option principle is a natural one. Nevertheless, in the future – given the practical difficulties created by the application of the non cumulation principle and the inequality of treatment it generates between a creditor who is a victim of a loss and a third party in an identical situation – it is possible that the Romanian legislator may also choose to abandon its application.

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