Evacuată, pe nedrept, din teritoriul nulităţii: simulaţia
Wrongfully Excluded From The Realm Of Nullity: The Simulation

Summary/Abstract: It is a commonplace in both legal scholarship and case law that the reason why the ostensible contract, concluded as part of the complex legal operation of simulation, is incapable of producing effects between the parties – an incapacity that exists from the very moment of its conclusion – is that the contract does not reflect the parties’ true intention. This proposition has long been regarded as settled law, dating back to the Civil Code of 1864, which – an interesting omission – contained no general framework governing simulation. By contrast, the current Civil Code, unsurprisingly, provides a comprehensive regulation of the institution. Although, as a matter of substantive law, the action relating to simulation is not formally classified as a declaratory action establishing the existence of simulation, this characterization continues to enjoy unanimous acceptance. Consequently, the action is regarded as not being subject to extinctive prescription, whereas the rules governing court fees and jurisdiction remain, if not genuinely controversial, at least the subject of continuing academic debate. From a practical perspective, the present analysis is of little use and is therefore unlikely to appeal to practitioners reluctant to challenge settled case law. The central thesis advanced is that the ostensible contract should be regarded as absolutely null on account of the illicit cause underlying that contract. In the case of lawful simulation, however, the appropriate sanction would be relative nullity, resulting from the absence of cause of the ostensible contract. The analysis begins with a simple observation: however extensive the catalogues of grounds rendering contracts ineffective may be, none expressly includes the absence of the contracting parties’ true intention. This approach may be criticized as excessively theoretical. Yet such criticism comes precisely from those who maintain, without paying sufficient attention to Article 35 of the Code of Civil Procedure, that an action by which the claimant seeks to demonstrate that a contract, apparently genuine, is in reality a falsehood should be regarded as nothing more – or less – than a declaratory action.

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