Dreptul de opţiune între remediile contractuale. Alegere liberă?
Right of option between contractual remedies. Free choice?

Summary/Abstract: The present study aims at a careful analysis of the right of choice between remedies. The research begins by determining the relationship between the right of option and the legal hierarchy of remedies, from the perspective of comparative and domestic law, and in this context is interested in how the principle of favor contractus could establish a functional hierarchy between the mechanisms available to the creditor in case of non-performance. The conclusion of the primary analysis, on the one hand, refutes the existence of a system of subordination between remedies and, on the other hand, states freedom of choice. The analysis continues with the determination of the legal nature of the right, capturing the two paradigms already found in the doctrine – that of the potestative right, respectively that of the right of claim with alternative contents -, agreeing that the second variant is better suited to the specificity of this right. The most substantial part of the study focuses on how the option is exercised, examining, both from the perspective of national case law and national procedural and substantive rules, when the choice is made, what the limits of the option are and, above all, under what conditions the option can be revoked by its holder. The last part of the study is about censoring the choice already made. The intervention of the court on the manner of expression of the option, when the right has been exercised beyond the internal limits, is a judicial limitation and is based on the theory of abuse of rights. In this framework, we have analysed the most common manifestations of abuse in the field of the right of option, while also capturing the specific sanctions in this field. The belated invocation of a termination clause, the formulation of a unilateral declaration of termination for a trivial non-execution, the request for enforcement in kind when the costs of enforcement are clearly disproportionate or the invocation of the exception of non-execution in the case of a minor non-execution, are all forms that abuse of rights can take in the matter of the choice between remedies. The entire research is based on both the national paradigm and comparative law doctrine on the subject, especially that derived from English and American common law, French law and Québec law.

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