Simulația – o excepție de la principiul opozabilității contractului
Simulation – an exception to the principle of contract opposability

Summary/Abstract: In the thematic approach, the content elements of each form of simulation were examined, as well as the mechanism of operation on the relationship between the public and secret act, in the case of simulation through fictitiousness, the legal nature of the operation in the case of total disclosure or in relation to clauses in the case of partial disclosure, or in relation to the parties to the secret and real act in the case of simulation through the interposition of persons. In the case of simulation through the interposition of persons, the doctrinal opinions regarding the parallelism between simulation through the interposition of persons and the mandate without representation were examined, focusing on the conclusions of the majority doctrine, according to which the mandate without representation represents an atypical form of interposition of persons.Starting from the premises and forms of simulation, the effects of simulation were analyzed in relation to third parties, to whom the public act is enforceable if the third parties rely on it in good faith, while, in relation to the simulators, universal successors and universal title holders or other derivative parties, the effects and binding force of the secret act apply. The parties affected by the secret act fall into the category of third parties alongside particular title holders, unsecured creditors and actual third parties. As an exception to the unenforceability of the secret act against third parties, the latter may invoke the secret act against the parties when it harms their rights. In this case, third parties have the right to choose between invoking the public act and the secret act, if they have an interest in invoking the secret act, its effects, to their benefit and against the parties. During the interim period, none of the simulators can rely on the public act, because by the simulated agreement they have excluded such a possibility, their real will arising from the secret act. However, the duplication of the secret act with the public act requires, as an indispensable condition of simulation, the existence of a link, an interdependence with causal value between the two acts. The entire mechanism of overturning the rule of full enforceability of the hidden act in favor of the diversion expressed by the public act, enforceable against third parties acting in good faith, has been explained by the value given to thetheory of appearance. The two categories of unenforceability, that of the hidden act vis-à-vis third parties and that of the public act vis-à-vis the simulators, outline the relative and subjective nature of enforceability in matters of simulation. Concealing a legal transaction through simulation does not exclude simulation from the scope of contractual freedom, as it is protected from any sanctions if it does not seek to harm the rights of third parties or defraud the law; simulation is not a cause for the nullity of the legal transaction, but a cause for unenforceability.The action for simulation tends to establish the existence and content of the secret act, with the aim of removing those causes that annihilate or mask the secret act. This action does not seek to annul the secret act, as such annulment is not a condition of the action for simulation, without, however, such annulment being excluded outright when appropriate, but subsequent to the action for simulation, as a separate claim or by way of a new action. The party interested in bringing an action for simulation may invoke the secret act in its favor, requesting the enforcement of the act, or its rescission, termination, annulment, or the report or reduction of the liberality in the secret act. As a personal action for a declaratory judgment, the action for simulation is not subject to a statute of limitations, but the absence of a statute of limitations must be analyzed in correlation with the principle that the simulated legal act is not susceptible to consolidation over time. The last part of the study also addressed the issue of evidence in matters of simulation, distinguishing between the simulating parties and thirdm parties in this regard.

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