Evolution of special contracts law

• Author: Dumitru Vaduva
• Position: Lecturer Ph.D. University of Pitesti, Faculty of Law and Administrative Sciences
• Pages: 105-108

EVOLUTION OF SPECIAL CONTRACTS LAW

Dumitru Vaduva*

Abstract

         

To define it is necessar y to a nalyze the special r ules of contr acts in order to establish their place and role in

relation to the common law of contracts.

Key words: contra cts, specialization, vertical development of contracts, imperative rules.

Introduction

             

             

 , etc. In the lack of a legal definition, it is necessary to clea r the notion



1. Special contracts. The law of special contracts.

1.1 Terminology.

The notion of “special contracts” used by the new Civ il Code in Title IX of Book 5 “Different special

contracts” i s misleading and it suggest that there wo uld be a categor y of general contracts. Nobod y entered a

“general” contract or a “contract”, but just concrete contracts, the only o nes legally capable to generate

obligations, for instance: buying-selling contract, location contract etc.

Also, the shown notion can suggest that “special contracts” would be particular contracts, derogatory

from common law or placed at its border. To avoid this inconvenience was proposed the notion of “civil

contracts” to replace the o ne of “special contracts” suggesting that these contracts have nothing in special, but

form just a category of contracts

1. We do not analyze civil contracts, but the category of contracts settled by law,

identified by the adjective “special”. Thus, it is necessary to reveal the sense of the adjective “special” attached

by the legislator to the notion of “contract”.

1.2 The law of special contracts

Noticing from Title IX of Book 5 of the new Civil Code and from art. 11 67 of the same Code, we can

intuitively define “special contracts” as being the special rules particular for each contract, subordinated to the

theory of contract, establishing the regime of a juridical operation, namely the formation and content of a

particular contract.

These special rules are gathered in the “law of special contracts”. One can propose that the area of

“special contracts” be named “the law of special contracts”. The title proposed can also suggest that this area

would be a subject matter tog ether with the law of common contracts, obviously a bad idea2, until nowada ys, as

it will be shown.

Thus, we keep the classical name of “special contracts”, but we will delimitate its understanding by

analyzing the relation between the general theory of contracts and the “special ones” to check if the adj ective

“special” is just the name of t he group of contracts set tled by law, or is a “specialization” of these contracts, as

the legislator expressly and for the first time distinguishes between “general rules” o f the contracts and

“particula r rules r egarding certain contracts ” (art. 1167, ¶ 1-2 of the new Civil Code), thus suggesting the

existence of different regimes for these categories.

2. The relation between common and special law of contracts. The evolution of the law of

special contracts

2.1 Common law of contracts

The general theory of contracts (Title III, Chapter I of Book 5 of the new Civil Code) defines t he

contract and organizes its rules of drafting a nd general effects, completing itself with the rules of general theory

of obligations regarding the application of its provisions and liability for non -compliance of the obligations,

transmission and exemption, all forming the common law of contract.

2.2 The role of the general theory of contracts

General and abstract concept, the “general co ntract” is an elastic mechanism designed to be used in

achieving an unlimited number of juridical operations: conveyance, transfer of usage, transfer to obtain a favor

etc, onerous or free, intu itu personam or not, random o r commutative, etc, but each of these, have a necessary

* Lecturer Ph.D. University of Pitesti, Faculty of Law and Administrative Sciences, email: dumitru_vaduva@yahoo.com

1 T. Prescure, A. Ciurea Contracte civile, Hamangiu Publishing House, Bucharest, 2007, “Introduction”.

2 P.-H. Antonmattei, J. Raynard, Droit civil Cont, Litec Publishing, 3rd Edition, Paris, 2002, p. 2.