PROPUNERE DE LEGE FERENDA PRIVIND UNIFICAREA NOŢIUNILOR DE CAZ FORTUIT ŞI FORŢĂ MAJORĂ ÎNTR-UN SINGUR CONCEPT
A PROPOSAL FOR A LEGE FERENDA ON UNIFYING THE ACT OF GOD (FORTUITY) AND FORCE MAJEURE UNDER THE SAME CONCEPT

Summary/Abstract: This work proposes a comparative approach of two liability-exempting cases dealt with de lege lata in the positive Romanian law, namely the Act of God (fortuity) and the force majeure; these two frequent and ”classical” exempting circumstances are approached expressly by the new Romanian Civil Code as well, as they used to be in the previous Civil Code of 1864 (in a more succinct, confusing and vague manner unlike the current civil code). Nevertheless, although currently the law provides definitions for the two concepts, as well as the consequences of their occurrence, we cannot ignore that, in practice, there may arise debates and controversies concerning the scope of each of them. However, under the new civil code, the legal effects borne by an Act of God, or by force majeure respectively, may differ substantially and in a determining manner in terms of civil liability, particularly when it comes to tort liability. Therefore, we will have a comparative overview of these two concepts, mainly from a tort liability perspective, in order to give grounds and justify a proposal of lege ferenda which we find highly necessary, as well as to clarify, following years of controversies, the concept and consequences of the unforeseeable and insuperable event that exonerates parties from civil liability. It is obvious that such an approach will be done by comparison with the relevance of such exempting cases in contract civil liability, as well as by referring to comparative law and relevant European codes.

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