Considerations regarding the specifics of the transaction contract

• Author: Ioana Nicolae
• Position: Faculty of Law 'Transylvania' University of Bra?ov, Romania
• Pages: 63-67

AGORA International Journal of Juridical Sciences, http://univagora.ro/jour/index.php/aijjs

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

No. 2 (2017), pp. 63-67

63

CONSIDERATIONS REGARDING THE SPECIFICS OF THE TRANSACTION

CONTRACT

I. NICOLAE

Ioana NICOLAE

Faculty of Law

“Transylvania” University of Brașov, Romania

*Correspondence: Faculty of Law, 25 Eroilor Blvd, Brașov, Romania

E-mail: ioana.nicolae@unitbv.ro

ABSTRACT

Transaction contract was and continues to be widely applied in legal life. The present study

discusses the matters which particularize this contract in legal life, by analyzing its definition,

its legal characters, by emphasizing the specifics of the validity conditions and the effects it

generates.

KEYWORDS: transaction, concession and mutual receding, prevention, ending litigation,

validity conditions, effects.

INTRODUCTION

According to article 2267 first alignment of the Civil Code, transaction is that contract by

which the parties prevent or decide to end a trial, including in the phase of enforcement, by

concession or mutual receding of certain rights or by the transfer of rights from one party to

another. The definition of the transaction contract, points out the following issues:

- the parties aim to prevent or end litigation, which means that by concluding a transaction a

trial can be prevented (thus we are in the presence of an extra judiciary transaction) or the

transaction is concluded during the trial with the purpose of ending it (thus a judiciary

transaction). In other words, transaction entails the existence of imminent/inevitable litigation

or an already stated trial. At the same time, the parties’ intention

1

is that of preventing or

ending that particular trial. Transaction entails concession or mutual receding of rights or the

transfer of rights from one party to the other. The text of article 2267 second alignment of the

Civil Code states that by transaction the parties can create, modify or end different legal

relations which are subject to litigation between the parties.

- judicial transaction can be concluded including in the phase of enforcement, thus also

during trial, as well as in any phase of attack. If the transaction is concluded in the

enforcement phase, we must mention that the transaction can’t abolish the executed court

decision; however, the parties will be limited to concluding a transaction in regard to the debt

which is enforced.

1. JUDICIAL CHARACTERISTICS OF THE TRANSACTION CONTRACT

The transaction contract is particularized by the following legal characteristics

2

:

- it represents a mutual contract, as the parties have mutual and interdependent obligations

through concession and mutual receding of rights or by the transfer of rights from one party to

1

Doctrine appreciates that the parties’ intention to end or prevent litigation, by concluding a transaction contract,

represents the very essence of transaction. See R. Dincă, Special civil contracts in the new Civil Code, Universul

Juridic Publishing House, Bucharest, 2013, page 294.

2

G. Boroi, I. Nicolae in G. B oroi, M.M. Pivinceru, C.A. Anghelescu, B. Nazat, I. Nicolae, T.V. Rădulescu, Civil

law charts, second revised and completed edition, Hamangiu Publishing House, Bucharest, 20 17, page 682-683.