5. Prejudicii și reparații în materie de leziune
5. Damages and remedies in cases of lesion

Summary/Abstract: From the interpretation of article 1.221 para. (1) Civil Code emerges the condition according to which the party benefiting from the imbalance must have come to profit from it in consideration of the state of need, lack of experience, or knowledge of the other party at the time of contract conclusion. In other words, the imbalance between performances must result from a situation where one party is in a more favorable position than the other, the former taking advantage of this, contrary to the principle of good faith. What qualifies the value imbalance between the contracting parties' performances as lesion is the requirement that, on one hand, one of the contracting parties contracted in a state of need in relation to the contract, without this connection necessarily being direct, and on the other hand, that the other contracting party, aware of this state's existence, takes advantage of it. It is significant that the subjective position of the party for whom the contract is prejudicial does not constitute a decisive factor in concluding the prejudicial contract, it being sufficient that the injured party is in a situation of inferiority or dependence towards the other party, in consideration of a subjective need, without requiring the fulfillment of the conditions of necessity. Only such a subjective interpretation of the phrase „state of need” to which the analyzed legal text refers (which is placed alongside other purely personal situations, such as lack of knowledge or experience – in other words, the triggering causes of this state are not very relevant) makes possible the differentiation from the legal institution of necessity to which article 1.218 Civil Code refers. If necessity is determined by external, objective factors and can be perceived as such by any person, the state of need can be purely subjective, including exacerbated, and is not required to be perceived as such by another person in an identical situation. Relevant from the perspective of breaking contractual equilibrium is the manifestation of this state of need during negotiations and at contract conclusion, its knowledge by the contracting party and its speculation, materialized through the insertion of a disproportionate contractual clause.

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