6. Prezumţia de valabilitate a cauzei şi sarcina probei în acţiunea în nulitate pentru cauză ilicită. Relevanţa procedurală a art. 1239 alin. (2) C. civ.
6. The Presumption of Validity of the Cause and the Burden of Proof in the Action for Annulment for Illicit Cause. The Procedural Relevance of Article 1239 para. (2) of the Civil Code

Summary/Abstract: In the proposed case, the procedural function of a substantive rule contained in the Civil Code is analyzed, namely the relative presumption of validity of the cause of the legal act, established by article 1239 para. (2) of the Civil Code. Although systematically placed within the matter of the conditions of validity of the contract, this provision produces an eminently procedural effect, since it exempts from proof the party in whose favor it is established and reverses the burden of proof onto the party invoking the lack or invalidity of the cause. The study examines the manner in which this rule governed the resolution of an action for a declaration of absolute nullity of an assignment of receivables contract for illicit cause, as well as the relationship between the relative legal presumption and the procedural mechanisms of the judicial presumption and of the sanction for failure to appear for examination, regulated by article 358 of the Code of Civil Procedure. The author formulates a critical observation, in the sense that the solution appears to be the expression of an excessive rigor, since the element capable of corroborating the beginning of proof resulting from the defendant’s failure to appear was already in the case file, namely the very instrument recording the assignment, which revealed a derisory price, below 1% of the value of the assigned claim. The distinction between nullity and unenforceability from an evidentiary standpoint is also highlighted, together with the active role of the judge in ascertaining the truth and the limits of the legality review exercised on appeal regarding the assessment of evidence.

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