Juxtapunerea remediilor şi a sancţiunilor în dreptul contractelor
Juxtaposition of remedies and sanctions in contract law

Summary/Abstract: Situations of convergence – hypotheses in which the same circumstance can receive several legal qualifications, are designated in comparative law by the overlapping remedies phrase. The most common example is where the same fact is a basis both for the annulment of a contract on the grounds of material mistake and for the remedies that make up the warranty against latent defects. In the present study, we set out to verify how this hypothesis works in Romanian law and what are the solutions offered by the legislator, doctrine and case law to such situations of convergence, with a preference for situations that may constitute, at the same time, an obstacle in the valid formation of the contract, namely a non-execution of the contract. The inventory is rich and covers: the juxtaposition between the regime of defects of consent and that of remedies for non-performance (mistake and fraud vs. hidden defects, eviction and non-conforming delivery; initial impossibility vs. defects of consent and remedies for non-performance; conflict between sanctions applicable to unfair and unjust terms; conflict between contractual liability and non-contractual forms of liability; conflict, cumulation and option between remedies for non-performance). The central concern is the existence or non-existence of a right of choice between the multiple legal regimes that are virtually applicable. Freedom of choice seems to be the predominant solution and non-option between legal regimes seems to be the exception in Romanian law. However, the solution is not immune from criticism or doubt.

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