THE PAYER’S MISTAKE AS A CONDITION OF THE UNDUE PAYMENT
THE PAYER’S MISTAKE AS A CONDITION OF THE UNDUE PAYMENT

Summary/Abstract: The new wording of the provisions of art. 1341 para. 1 in the Civil Code, which only states that the person who pays without a debt has the right to the recovery of money, avoiding to mention the phrase "by mistake", does not represent a consecration at the level of the Romanian legislation of the circumstance that for the admissibility of the action for the return of the undue payment the fulfilment of the condition of mistake has gained a relative character belonging to the nature and not to the essence of the undue payment.On the other hand, even if the legal text does not stipulate anymore the payer’s mistake as a condition of the undue payment, this condition cannot be excluded from the juridical construction of the undue payment. In exchange, for reasons of juridical accuracy and efficacy, it is preferable the formulation "the payment should have been made, in principle, by mistake" instead of "the payment should have been made by mistake".

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