Agent substitution and assignment of contract

• Author: Dana Lucia Tulai
• Position: PhD in Progress, Professor Assistant, 'Babes-Bolyai' University, Cluj-Napoca, Political Economy Department
• Pages: 59-63

AGENT SUBSTITUTION AND ASSIGNMENT OF

CONTRACT

Dana Lucia Tulai*

Abstract

The juridical identity of agent substitution is a matter that has not yet

been fully clarified by legal doctrine. However, two classic opinions have

been formed concerning the identification of this lega l operation: one

considers agent substitution to be a typical example of subcontra ct and the

other one assigns to it the characteristics of an assignment of contract.

Keywords: agent, substitution, subcontract, assignment of contract.

Introduction

As we have shown in another study,,1 we consider that identifying

agent substitution as a subcontract is only justified in those cases in which

substitution is neither explicitly a uthorized, nor forbidden by the principal.

Therefore, we intend to clarify whether in other ca ses, which do not match

the subcontract description, agent substitution could be identified as an

assignment of contract. To support this approach, we have the new

regulations in the Romania n Civil Code, precisely ar ticles 1315-1320, which,

for the first time in our legislation, establish a legal regime for the

assignment of contract, as well as article 2023 of the same code, that

regulates agent substitution.

Juridical Identity and Legal Regime of the Assignment of

Contract

Doctrinal controversy subsists in which concerns the juridical identity

of the assignment of contract. Hereby, some authors admit without hesitation

the existence of an authentic assignment of contract, having translative

effects, but there are others2 who consider this operation to simply mean the

conclusion of a new contract between the “assigned contractor” and a third

party. There is no doubt that a contract represents more than the set of

claims and liabilities that form its object. First of all, it is an expression of the

common will of the parties who conclude it. Therefore, the idea of expressing

the will to assign the concluded contract seems to make common sense, this

implying the transfer of the contractual position of one party to a third party.

*PhD in P rogress, Professor Assistant, „Babes-Bolyai” University, Cluj-Napoca, Political

Economy Department, dana.tulai@econ.ubbcluj.ro

1 Dana Lucia Tulai, Agent Substitution and Subcontr act, Agora IJJS 1/2011, Oradea.

2 J.Ghestin, Traite de dr oit civil.Les effets du contra t, LGDJ,1994, n.687.