Nulităţi, prejudicii, restituiri, ieri şi azi. De la Vechiul Cod la Noul Cod civil şi mai departe?
Nullities, damages, refunds, yesterday and today. From the old Code to the new Civil Code and beyond?

Summary/Abstract: In a codified civil law system such as Romanian civil law, the issue of nullities, damages and restitution cannot disregard and must start from the data of positive law, in this case the two civil codes, the Civil Code of 1864 and the New Civil Code of 2009. As far as the Old Civil Code is concerned, the French and then the Romanian legislator, only in the area of nullity, established sufficient normative benchmarks for the construction of a theory of nullity, in accordance with the tradition in the matter, while in the area of civil liability and, partially, in that of restitution, it has fallen to legal doctrine and judicial practice to carry out the noble but difficult task of elaborating (the theory of civil liability) or, where appropriate, revising (the theory of restitution) the theories in this area, establishing which is the really applicable law (ius vivens, law in the action, diritto vivente). On the other hand, in the system of the New Civil Code, a theory of nullity of Bartholomew’s origin is undoubtedly enshrined, based on the distinction between so-called “absolute” nullity, instituted to protect a general, public interest, and so-called “relative” nullity, instituted to protect an individual, particular interest, but also a theory of civil liability, based on fault, in principle, to which is added the unitary theory of restitution of benefits rendered without legitimate cause or on the basis of an inoperative cause, as the case may be.Although independent, or rather autonomous, between nullity, civil liability, property rights and the right to restitution of benefits, there are or may be interactions and mutual influences (contamination), so that it remains to be investigated in depth the rules of validity, liability, property and restitution in Romanian civil law, first and foremost, those contained in the new Civil Code, and their critical assessment in relation to other continental and transcontinental civil codifications, as well as to the international and European instruments mentioned above, which are intended to lay the foundations for a nova lex mercatoria universalis and a novum ius commune europæum.

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