The meaning of the expression: rescission by operation of law

AuthorLuiza Cristina Gavrilescu
PositionUniversity of Iasi, Iasi - Romania
Pages49-54
AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro
ISSN 1843-570X, E-ISSN 2067-7677
No. 4 (2013), pp. 49-54
49
THE MEANING OF THE EXPRESSION: “RESCISSION BY
OPERATION OF LAW”
L. C. Gavrilescu
Luiza Cristina Gavrilescu
Law Faculty, Collective of Private Law,
“Al. I. Cuza” University of Iasi, Iasi, Romania
*Corespondence: Luiza Cristina Gavrilescu, “Al. I. Cuza” University of Iasi, 11th Carol I
Blvd., 700506, Iasi, România
E-mail: luiza.gavrilescu@uaic.ro.
Abstract
The non-compliance of the debtor's obligations doesn't lead automatically to the
termination of the contract, even if a legal or a contractual resolutory clause is incident.
Rescission by operation of law makes that the court's intervention to be limited, compared to
the case of unilateral and judicial rescission.
Keywords: rescission, termination, formal notice, non-performance, judicial review.
Introduction
The concept of rescission has evolved according to the socio-economic needs, so the
Romanian legislature, by regulating the new Romanian Civil Code, has partially aligned with
the trends reflected in contemporary legislation.
1. Legal consecration of the analized expression
Rescission of the contract is one of the most energetic remedies that may be used by
the creditor, in case that the debtor fails, without justification, to perform its obligations. Since
the main effect produced by rescission is the abolition of contractual relationship, it was
considered that the final part of the text of Art. 1321 of Romanian Civil Code, establishing the
grounds for termination of the contract, it also refers to the resolution, when it states: "as well
as any other cases provided by law"
1
.
One of the phrases employed in the new regulation, susceptible to interpretations, is
the one used in drafting art. 1550 par. (2) of Romanian Civil Code, which, referring to the
operation of termination, provides that "rescission can operate of law". In order to determine
the real meaning of this phrase, we will recourse to several rules and arguments of
interpretation.
2. The motivations drawn from a teleological interpretation
The new Romanian Civil Code establishes several forms of recission, in terms of its
source: judicial recission, unilateral recission, legal recission and conventional recission.
Of all these forms, only about legal and conventional rescission it is stated that are
operating of law. Researching the history of development of the new Romanian Civil Code,
we find that, in its original form, shaped by the Law no. 287/2009
2
, the operation of the
rescission by law was not provided. Specifically, art.1500 of the Romanian Civil Code
consisted of a single paragraph, which established unilateral and judicial rescission of the
contract. Consecration of legal and contractual rescission that is operating of law was
achieved by introducing para. (2) of art. 1500 of the Romanian Civil Code, through art. 190
1
See I.Turcu, Nou l Cod civil. Legea nr. 287/2009, Cartea a Va. Despre obligaii, art. 1 164-1649. Comentarii i
explicaii, “C.H. Beck” Publishing House, Bucureti, 2011, p. 381.
2
Published in The Official Gazette of Romania, no. 511/24.07.2 009.

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