Sistemul remediilor anticipative şi decăderea
The system of anticipatory remedies and forfeiture

Summary/Abstract: Does the absence of a legal provision legitimising the invocation of remedies for non performance of a contract prior to the maturity of performance lead to the conclusion that their anticipatory invocation is never admissible? Romanian legal doctrine legitimises the use of anticipatory remedies on an exceptional basis, relying on different arguments, while case law appears rather reluctant. The experience of comparative law helps us identify the mechanisms through which access to anticipatory remedies may be achieved. These mechanisms involve the recognition of an intermediate category of obligations (namely “Obliegenheit”/“incombance” in comparative law), as well as its current relationship with forfeiture of rights. The demonstrative contribution of this mechanism provides arguments in favour of a genuine system of anticipatory protection of the creditor, which entails recognition of the creditor’s right to “anticipatory remedies”, based on the presumption that, in almost all practical situations where the performance of synallagmatic obligations is not simultaneous, we are dealing with suspensive terms or conditions affecting the performance or even the existence of synallagmatic obligations.

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