Excepția de neexecutare a contractului – instrument juridic vechi, recomandat în pandemia Covid 19
The Exception of Non-Performance of the Contract (exceptio non adimpleti contractus) – an Old Legal Instrument Advisable in the Covid-19 Pandemic

Author(s): Nora Daghie
Subject(s): Law, Constitution, Jurisprudence, Civil Law
Published by: Universul Juridic
Keywords: uncertainty; non-availability of performance; risk of non-performance; suspension of obligations; dissolution of contractual relationship;
Summary/Abstract: To state that the exception of a non-performed contract has as single end performance of corresponding obligation means to limit its effects and to create an idealistic vision of the discharge of obligations. While it was initially aimed at ensuring observance of the predefined order of reciprocal/bilateral contract or relationship performance, the exception of a non-performed contract could play an important role against the risk of non-performance, or even against a nonperformance given notice of before the due date. The interpretation of Article 1556 in conjunction with Article 1270, both of the Civil Code, added to other practical arguments, substantiates the need to expressly recognize this exception an active role, and not just a passive constraining role in the conduct of the underlying relationship. When the non-availability of performance affects the debtor only temporarily, the creditor has been recognized by the lawmaker, under the provisions of Article 1557(2) of the Civil Code, the possibility to opt for either having its own obligations suspended, or termination of the contract. Moreover, considering the provisions of Article 1534(2) of the Civil Code, the party injured by a contract's nonperformance is required to take reasonable steps to limit its adverse consequences.

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