Aspects regarding the theory of unpredictability in the new civil code

• Author: Agata Mihaela Popescu
• Position: Facutly of Juridical and Administrative Sciences, 'Dimitrie Cantemir' Christian University, Bucharest, Romania
• Pages: 135-142

AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 1 (2013), pp. 135-142

135

ASPECTS REGARDING THE THEORY OF UNPREDICTABILITY IN

THE NEW CIVIL CODE

A. M. Popescu

Agata Mihaela Popescu

Facutly of Juridical and Administrative Sciences

“Dimitrie Cantemir” Christian University, Bucharest, Romania

* Correspondence: Agata Mihaela Popescu, 129 oseaua Olteniei St., Sector 4, Bucharest,

Romania

E-mail: av.agata@yahoo.com

Abstract:

The legislator’s intentions regarding the new Civil Code stemmed from the necessity

of an all-encompassing regulation of civil law. On the basis of these changes, the

unpredictability appeared as a socio-economic reality determined by the drastic and

unpredictable changes of the parameters under which a contract is executed, in comparison

to those taken into account by the parties when signing the contract. It thus appears that the

theory of unpredictability is the doctrine’s and jurisprudence’s answer to the fate of the

contract’s execution.

Keywords: unpredictability, contract, execution, fault, event

Introduction

For contracts regarding monetary obligations for which the execution is not

simultaneous to the forming of the contract, but rather implies an ongoing process, contracts

such as those implying successive execution or suspensive contracts, the possibility of an

unbalance appearing in the detriment of one of the parties (usually the debtor) exists, as a

consequence of events occurring after the conclusion of the contract. In a situation like this,

the debtor will no longer be able to comply with its contractual obligation, not because it

would be impossible, but because it would lead to serious damages of the economic-financial

situation of the debtor. As a consequence, we’d be dealing with an over onerously obligation

of the debtor, situation that did not exist at the moment of the forming of the contract.

It is called unpredictability the contractual disposition that allows the modifying of the

content of a contract when, during the performing of the contract, certain events occur that

effect the contractual balance, substantially changing the elements and information the

parties took into account when concluding the contract, creating for one of the parties such

onerous consequences, that it would be unjust for him to have to bare with them alone

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. It is

essential that these events do not occur by the fault of any of the parties – the cause of the

unbalance being a situation beyond the person and it’s will – and could not have been

foreseen when the contract was signed.

The origins of the theory of unpredictability lie in Roman law where it is said that

omnis conventio intelligitur rebus sic standibus, expressing that all conventions are

considered to be valid if the circumstances in which they were signed remain unchanged.

However, the perspective from which the theory is currently approached leads to the

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Simona Petrina Gavril, Teoria impreviziunii, “Dunrea de Jos” University, Galai,

http://www.scribd.com/doc/54319505/TEORIA-IMPREVIZIUNII.