Aspecte teoretice și practice privind condițiile cerute pentru admisibilitatea rezoluțiunii judiciare
Theoretical and practical issues regarding the requierments for admissibility of legal cancellation

Summary/Abstract: The specificity of legal cancellation is the fact that the cancellation is rendered by the court at the request of the creditor of the performance non-fulfilled due to its debtor’s fault. According to art. 1021 of the Civil Code, the cancelation of the contract for non-fulfillment, in whole or in part, of the obligations undertaken by either of the parties, based upon the idea of fault, shall not operate by law and, therefore, the party entitled must submit an action for cancellation to the court. Under these circumstances, the law acknowledges to the court the right to verify and assess the causes of cancellation, the conditions and importance of the non-fulfillment of obligation, being able „according to the circumstances” to provide a grace period to the party sued (art. 1021 of the Civil Code). In the doctrine, it has been asserted that the obligation can be fulfilled all throughout the trial, including in ordinary remedies, in appeal or in second appeal. It has to be specified that the cancellation can only be requested by the creditor of the obligation non-fulfilled by fault, and not also by the party guilty of not fulfilling the obligation undertaken by the bilateral contract. The lawmaker explicitly states this, which actually corresponds to the nemo auditur propriam turpitudinem allegans principle. The judicial review examines the reasons determining the creditor to request the cancellation of the contract although the enforcement in kind of the obligation was still possible. Such a possibility should always be examined and qualified but it cannot be pursued in all cases because it undergoes numerous limitations of a psychological, material, legal, and economic nature. We should also not ignore the debtor’s subjective attitude, its good or bad faith related to the non-fulfillment, the reasons and context of the non-fulfillment or the extent to which the creditor’s interests can still be met. This also explains the fact that, although theoretically the enforcement in kind is the preferable choice in case of the voluntary non-fulfillment of the contract, yet, in practice, one can find, statistically, that the means most often used is constraining the debtor to pay damages and the cancellation of the contract.

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