Problematica restituirilor în materia contractelor civile sau despre cum retroactivează rezilierea
The issue of restitution in civil contracts or the retroactive effects of termination

Summary/Abstract: Any discussion on restitution seems to reiterate the same ideas: he who has received what is not due to him is obliged to return the benefit. And yet... a few more or less trivial questions risk undermining what creates the impression of a solid foundation for the obligation to restitution. First, how do we determine the unfairness of the service? It would seem that the obligation is non-existent or that the obligation has been abolished with retroactive effect. We will show that it is equally possible that restitution is due because the payment is without cause, although the obligation existed and still exists. Moreover, repayment may also occur if, after the valid payment, the subject matter of the enforced obligation is reduced. Secondly, what is the relevance of retroactivity in generating repayment obligations? We will try to argue that retroactive termination is not incompatible with contracts with successive performance. These too are subject to termination for the past, both by nullity and by termination. Even termination – as a particular application of partial termination – is likely to create the context for restitution. Finally, what do we mean by restitution in kind and under what conditions is restitution by equivalent required? Where the claims refers to a property, can an action for restitution be classified as an application of an action for recovery? Is this the explanation for the apparent extension of the action for restitution brought by the solvency action to the sub-acquirers (Art. 1.648 Civil Code)? These are some of the questions we will try to answer in the following analysis.

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