Câteva consideraţii privind rolul determinant al jurisprudenţei în materia pactelor comisorii

Conf. univ. dr. Nora Andreea Daghie

Avocat în Baroul Galaţi

Some considerations regarding the decisive role of the case law in the matter of commissar pacts

Abstract

Commissoria lex according to the doctrine and case-law has been finally laid down at legislative level in the provisions of the new Civil Code. The lawmaker of 2009 has included and transposed the structure of the express contractual clauses concerning the rescission of contracts on grounds of non-performance in Article 1550(2) and Article 1553 of the new Civil Code.

At first sight, pursuant to the Civil Code of 1864, it appeared that rescission could be undertaken only by judicial means. None of the texts of the former regulation expressly provided for the rescission of contracts. The case-law and the doctrine have, however, emphasized the operative nature of the provisions of Article 1021 of the Civil Code of 1864 and, by reference to...