Clauzele nescrise în sistemul Codului civil
Clauses deemed as unwritten in the Civil Code system

Summary/Abstract: The author intends to examine the legal nature of unwritten clauses, both under the substantive and procedural aspect, defining the main characteristics of the declaratory action for the unwritten nature of a clause. The study indicates the inspiration sources of the regulation, the relevant provisions and makes a comparison between the penalty of considering the clauses as unwritten, the absolute and relative nullity, the non-existence and unenforceability, as civil penalties, for the purpose of settling into shape the own legal, sui-generis regime, of the first penalty. Likewise, the effects of the clauses deemed as unwritten are distinctly examined, on the one hand, for the situation in which they were performed or not performed and, on the other hand, depending on the involved legal subjects – the parties to the agreement, third parties or persons deriving title under. The study intends to emphasize the need for the regulation of the scope of persons and authorities which may rule on the unwritten nature of a clause, as well as on their margin of appreciation, in the respective endeavour.

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