Despre clauzele considerate nescrise. Aspecte de istorie, taxonomie şi regim juridic
On clauses deemed unwritten. Elements of history, taxonomy and legal regime

Summary/Abstract: The goal of the present article is to give a better conceptual understanding over what is known as clauses deemed unwritten and to strive to make sense of where this „new old” institution finds its place in an apparently nullity first legal ecosystem. The clauses deemed unwritten are an institution of law situated somewhere within the communication pathway between private will and the protective instinct of the law. Throughout the chapters of this article, we will first follow the evolution of the institution starting from ancient Rome, through revolutionary France and until the recodification efforts of the late XXth and early XXIst centuries to then discern between the proper classification of such clauses. We will then put together all the essential characteristics of the clauses deemed unwritten in order to create a full picture understanding of their nature so as to properly identify veritable such clauses form misnomers and to differentiate this institution form others and, especially, from nullity. The proper legal regime that is hereby proposed is, naturally, the bearer of certain legal consequences that are, to some extent, also treated in the last part of the article, but which do not represent the focus of the research undertaken here. The article is interested to find whether or not the clauses deemed unwritten, which are proposed to have a distinct legal regime from nullity, can find their place in a legal system which already bears the means to eliminate the undesirable missteps of private will.

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