A brief overview of the effects of contractual imprevision

AuthorI. Gânfalean - I. N. Gheberta
PositionFaculty of Law and Social Sciences, Law Department, '1 Decembrie 1918' University, Alba Iulia, Romania - Faculty of Law and Administrative Sciences, the Law Department, West University, Timisoara, Romania
Pages63-70
AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro
ISSN 1843-570X, E-ISSN 2067-7677
No. 3 (2014), pp. 63 - 70
63
A BRIEF OVERVIEW OF THE EFFECTS OF CONTRACTUAL
IMPREVISION
I. Gânflean, I. N. Gheberta
Ioan Gânflean
Faculty of Law and Social Sciences, Law Department
"1 Decembrie 1918" University, Alba Iulia, Romania
*Correspondence: Ioan Gânflean, Faculty of Law and Social Sciences, 11-13, Nicolae Iorga
St., Alba Iulia, Romania
E-mail: ioan.ganfalean@yahoo.com
Ioana Nicoleta Gheberta
Faculty of Law and Administrative Sciences, the Law Department
West University, Timisoara, Romania
*Correspondence: Ioana Nicoleta Gheberta, Faculty of Law and Social Sciences, 11-13,
Nicolae Iorga St., Alba Iulia, Romania
E-mail: gheberta_ioananicoleta@yahoo.com
Abstract
This study is aimed to review the provisions of article 1271 of the New Civil Code and,
in particular, the effects of contractual imprevision. We have attempted to outline the
possibilities that this relatively new institution which has appeared in the Romanian legal
landscape makes available to the parties in view of restoring the contract equilibrium further
to the occurrence of exceptional circumstances, namely the limits set for the subsidiary
intervention of the court when negotiations fail.
Keywords: negotiation obligation, adaptation by negotiation, adaptation in court,
termination of the contract, overcoming contractual risk.
1. Introduction
The theory of contractual imprevision is a concept which arose vivid controversies, on
account of the effects it produces. Initially, it was rejected under the Old Civil Code, taking
into account the nominalistic principle, set in article 1578 in the matter of money lending
agreements
1
; at a later time, it was proposed that this provision be interpreted as optional
2
,
while some authors even wondered whether it had already become obsolete
3
.
All these disputes were ended by the New Civil Code, in article 1271
4
, which regulates
the conditions and effects of contractual imprevision. In this text, the Romanian lawmaker
aimed to align the domestic law to the standards promoted at European Union level, as the text
1
This legal provision read: The obliga tion arising from a money loan is always for the same value shown in the
contract. Whenever the value of a currency increases or decreases, before the due date for pa yment, the debtor
shall return the exact numeric amount it h ad borrowed and shall only return such amount in the specie in
circulation at the time of payment.
2
R.I. Motica, E. Lupan, Teoria general a ob ligaiilor civile, Lumina Lex Publishing House, Bucharest, 2008, p.
76; L. Pop, Tratat de drept civil. Obligaiile.Contractul, volume II, Universul Juridic Publishing House,
Bucharest, 2009, p. 537.
3
R.I. Motica, E. Lupan, op.cit., p. 77.
4
We mention that, based on Article 107 of Law no. 71/2011 for the application of Law no. 287/2009 on the Civil
Code (published in the Official Gazette no. 409 of 10.06.2011), these provisions onl y apply to the contracts
concluded after 1 October 2011, the date of coming into force of the Ci vil Code.

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