RISCUL CONTRACTUAL ÎN REGLEMENTAREA NOULUI COD CIVIL
THE CONTRACTUAL RISKS UNDER THE NEW ROMANIAN CIVIL CODE

Summary/Abstract: The Contractual Risks Under the New Romanian Civil Code. This article is aimed at a very detailed approach of the question of contractual risk as provided by the New Civil Code, which brings important new elements in this matter. The research is based on the theoretical considerations of the article writer, who also quotes other writers, on the conclusions derived from the national and European case law on contractual risk, as well as on the relevant elements of comparative law. For this purpose, several civil codes have been taken into consideration, namely the Civil Code of Quebec (which was also the model when passing the Romanian New Civil Code), the Italian Civil Code, the German Civil Code, the Civil Codes of Spain, Switzerland and others, including those passed in the United States of America and Brazil. Finally, the so-called”European Civil Codes”, namely the most important codifications of European contract law (PECL, DCFR, Unidroit), have been used as correction source and comparison model for the regulations of the Romanian New Civil Code on the matter of contractual risk. The document defines and analyzes the cases of liability exemption under their current regulation, analyzes the frequency of cases of unforeseen impossibility of performance and its consequences, illustrates the rules applying to contractual risk (with the article writer’s own and original opinions) and, in the end, shows the conclusions arising from the research carried out, mainly highlighting the solution that is completely opposite to that provided by the New Civil Code as compared to the Old Civil Code in terms of risk assignment in real property assignment contracts, namely res perit debitori. In our opinion, the article was necessary, as the contractual risk was and still is a matter that has led to many debates and comments in the legal literature, which will continue despite the adoption of the Romanian New Civil Code, which gives a clearer approach of such issues. The goal of this article is to contribute, based on opinions supported by arguments, to an improved overview of the matter of contractual risk and, eventually, to bring forth some principles which should be taken into consideration for this purpose.

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