Tribunalul Teleorman, Decizia nr. 456 din 7 iunie 2013 (Jurisprudență comentată)
Teleorman Tribunal, Decision no. 456 dated 7.06.2013 (Case Law Study)

Summary/Abstract: Although Teleorman Tribunal decided that the authentic (notarized) form does not represent a condition for the validity of the pre-agreement, but, it represents a condition, which, if met, it allows the obtaining of the decision to replace the sale-purchase agreement, we consider that the court wrongly retained that for issuing a decision to replace a sale-purchase agreement (in the situation of a pre-agreement having as object a good which is supposed to fall under the provisions of the Land Book publicity) it is necessary that such pre-agreement to be concluded in an authentic (notarised) form. Such opinion is born out of the need of the interpretation of (either the general provision or the special provision) article 1669 (or article 1279) which states that “when one of the parties who concluded a bilateral promise to sell, unjustified refuses to conclude the promised agreement, the other party can request the issuing of a decision to replace the agreement, if all the other validity conditions are met”, in the sense that the wording “all other validity conditions” refers, in the first place, to the promised agreement, and, secondly, it refers to both the form and the substance conditions of such agreement. We consider that the legal provisions refer to those validity conditions of the promised agreement which, if not met, the court could not cover throughout its decision, such as the object of the agreement, the cause, but not the condition of the authentic (notarised) form of the agreement through which the asset is transferred, form which is automatically is met/fulfilled through the decision of the court (according to articles 269 and 434 Civil procedure code) issued for the replacement of the consent of the party who denies the conclusion of the promised agreement. Moreover, such interpretation of the legal provisions is sustained by the article 1669 Civil code itself, as it refers to the possibility of issuing a decision for the replacement of the agreement, and not a decision for replacing (only) the consent for the conclusion of the promised agreement of the party being in default.

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