Reglementarea clauzelor nescrise în Codul civil – un prim pas spre recunoaşterea nulităţilor de plin drept în dreptul civil român?
The regulation of unwritten clauses in the Civil Code – a first step towards the recognition of ipso iure nullity in the Romanian civil law?

Summary/Abstract: The Romanian Civil Code does not establish a definition of the institution of considering the clauses as unwritten, therefore the authors of this study have considered that an analysis of this sanction is necessary. The first part of the article presents the applicable legal provisions and, briefly, the history of the notion of unwritten clause, related comparative law issues and functions and elements of comparison with other institutions, including: rescission, termination, unenforceability, nullity, reduction and revocation. The study also presents the doctrinal controversies regarding the legal nature of unwritten clauses, as well as the main theories that have been issued in the relevant literature in this regard. In addition, the authors show what is the legal status of unwritten clauses, highlighting the particularities existing in the field of application and observing an overlap between the regime of absolute nullity and that of unwritten clauses as regards the right to action, the applicability of limitation and the (im)possibility to confirm that clause. The final part of the study determines the legal effects of unwritten clauses, the authors treating retroactivity, reinstatement in the previous situation and the abolition of subsequent acts.

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