DOCTRINAL CONTROVERSIES AND JURISPRUDENTIAL SOLUTIONS CONCERNING THE ''BILATERALIZATION'' OF THE DIRECT ACTION OF THE PRINCIPAL AGAINST THE SUBSTITUTE
DOCTRINAL CONTROVERSIES AND JURISPRUDENTIAL SOLUTIONS CONCERNING THE ''BILATERALIZATION'' OF THE DIRECT ACTION OF THE PRINCIPAL AGAINST THE SUBSTITUTE

Summary/Abstract: Our article brings to attention the operation of trustee substitution and its complex effects on the relations between all the parties involved, this study being focused more specifically on the relationship between the principal and the substitute agent. Thus, in a previous study, we have analyzed the agent substitution, as a exception from the rule that the trustee must personally carry out the mandate; we focused on the the legal nature of the operation, supporting its ''sui generis'' character, that differentiates it from the subcontract and the contract assignment; we also analized the effects of the substitution on the relations between the principal and the primary trustee, between the original trustee and substitute, as well as between the contracting parties and third parties. In this article, we shall approach the issue of the direct action that the principal can initiate against the substitute, as well as the intense debates generated in French and Romanian doctrine by the possibility of a jurisprudential recognition of its "bilateralization". French jurisprudence serves as an example of courage and pragmatism on the matter, by consecrating the reciprocity of the direct action, even in the absence of such legal provisions. However, given the fact that Romanian law does not recognize the ability of jurisprudence to establish a direct action, where it is not provided by express law, we highlight the importance of legislative consecration of a direct action of the substitute against the principal, on grounds of equity.

• Details
• Contents