Excepţia de neexecutare: o formă de manifestare a potestativităţii în materie contractuală (noţiune, condiţii, natură juridică)
The exception of non-performance: a form of manifestation of contractual discretion (concept, conditions, legal nature)

Summary/Abstract: Expressly regulated by the Civil Code in force, the withholding of performance is a private justice mechanism which allows the excipiens to unilaterally suspend the performance of its own obligations. Such measure is temporary, as it lasts while the other party fails to perform its obligations or until a court decision will ascertain that the legal conditions for exercising the withholding of performance have not been satisfied. Also, this mechanism has a preemptive role, as the interested party can forestall the damages which may be faced in case that it would perform its own obligations without receiving a counter-performance from the party in breach. It should be however mentioned that the foremost benefit of performance withholding is represented by its unilateral characteristic, as it may be exercised without any formalities or prior authorizations and therefore the party in breach has no actual possibility of opposing its enforcement. In view of the above, we will further demonstrate that the right to withhold the performance of one’s obligations is a potestative contractual remedy. To come to such conclusion, we will priorly emphasize the scope of the withholding of performance and the conditions for exercising such right.

• Details
• Contents