Repere metodologice de aplicare a prezumţiei de nulitate relativă prin raportare la interesul ocrotit
Methodological Guidelines For Applying The Presumption Of Relative Nullity By Reference To The Protected Interest

Summary/Abstract: The purpose of this article is to identify a coherent methodology for the application of the presumption of relative nullity, regulated as a novelty in the 2011 Romanian Civil Code. Thus, a simple text, inspired by the 1991 Québec codification, serves as a basis for applying relative nullity in cases where it is impossible to determine the nature of the protected interest and, consequently, the nature of the nullity. This new expression of the principles of contractual freedom and favor contractus establishes a rebuttable presumption (présomption simple) of the relative nature of the nullity and sets forth criteria that allow this presumption to be set aside. The central point of the analysis required to apply or set aside the presumption of absolute nullity remains, as with the entirety of modern nullity regulation, the protected interest. Judicial practice is not abundant in this matter and targets specific situations, such as company law, in which sanctions are not expressly indicated by law and therefore offer an ideal setting for illustrating the application of the presumption of relative nullity.

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