PACTELE COMISORII – CONSTRUCȚIE DOCTRINARĂ ȘI JURISPRUDENȚIALĂ, CONSACRATĂ LEGISLATIV ÎN NOUL COD CIVIL
Lex Commissioria Pacts - doctrinal and Jurisprudential Construction, Consacrated in The New Civil Code

Author(s): Nora Daghie
Subject(s): Civil Law
Published by: Universul Juridic
Keywords: legislative gaps; case-law; rescission of contracts; commissoria lex;
Summary/Abstract: Commissoria lex according to the doctrine and case-law has been finally laid down at legislative level in the provisions of the new Civil Code. The lawmaker of 2009 has included and transposed the structure of the express contractual clauses concerning the rescission of contracts on grounds of non-performance in Article 1550(2) and Article 1553 of the new Civil Code. At first sight, pursuant to the Civil Code of 1864, it appeared that rescission could be undertaken only by judicial means. None of the texts of the former regulation expressly provided for the rescission of contracts. The case-law and the doctrine have, however, emphasized the operative nature of the provisions of Article 1021 of the Civil Code of 1864 and, by reference to Article 969 of the Civil Code of 1864, have proved that the parties will be able to include the conditions under which the termination of a contract will occur with the parties’ agreement. In other words, the contractual freedom and the additional regulation of judicial rescission allowed contracting parties to self-adjust the system under which their contract could be terminated by agreeing on a termination clause, subsequently referred to as “commissoria lex” by the modern lawmaker.The development of the regulation in question undisputedly strengthens the creative role of case-law. Case-law is not equivalent, but actually subject to the law, which does not prevent it from contributing to the law. It generates elements to be used in the interpretation of the legal regulations or to provide, where these regulations are silent or insufficient, a solution where a difficult matter is being examined.

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