Despre locul nulităţii în spaţiul ineficacităţii actului juridic
On The Place Of Nullity Within The Framework Of The Ineffectiveness Of Legal Acts

Summary/Abstract: Nullity is the typical, presumed sanction for failure to comply with the validity requirements of a civil legal act. However, this central role does not preclude the application of a special legal regime where the law provides for a different sanction or another legal solution better suited to the circumstances. Systematizing the relationship between nullity and other derogatory legal mechanisms requires clarification of the scope of the validity requirements applicable to civil legal acts. In this respect, the statutory definition of virtual nullity provides a useful criterion for determining the nature of the requirement that has been infringed. A reflexive preference for nullity may lead to an unjustified expansion of its field of application in situations where the legislative purpose may be, or was intended to be, achieved through other legal mechanisms, such as treating the act as devoid of legal effect or as unenforceable against third parties, as the case may be, in light of the principles governing the effects of legal acts. The study examines several situations in which reliance on nullity is inappropriate, including representation (where the proper remedy is the absence of legal effects vis à vis the represented person) and the setting aside of subsequent acts following the invalidation of the prior acts upon which they are based (a situation resolved through the substantive unenforceability of the subsequent act). It then focuses in greater depth on two particular situations. The first concerns a notice of termination issued without complying with the statutory requirements governing unilateral termination, arguing that the sanction of nullity should be excluded. The principle of the relativity of the effects of legal acts, together with the recognition that the effects of termination derive from a combination of legal acts and legal facts, best explains why such an irregular unilateral act is without legal effect in relation to the debtor. The second illustration concerns the ostensible act, which forms part of the mechanism of simulation. Although the nullity of such an act is theoretically conceivable, the statutory regulation of simulation demonstrates the legislature's intention to exclude nullity as the appropriate remedy by expressly governing the effects of lawful simulation vis à vis third parties.

• Details
• Contents