Despre ordinea publică clasică și ordinea publică modernă
About classical public order and modern public order

Summary/Abstract: The theme of this study is the public order considered in its sense of limit of the principle of contractual freedom. The author starts in the analysis of this concept from the finding that, at present, it is almost impossible to formulate a definition sufficiently comprehensive, in order to be unanimously accepted by the specialized doctrine and by the case law. This is because it is a notion whose content is constantly evolving, depending on the needs of the judicial life, which is in an increasingly accelerated dynamics. Therefore it finds that the current public order has two components: the classical public order and the modern public order; the first has been and continues to be conservative and the second intends to be innovative. The classical public order usually consists in defending the main pillars of support of the society, such as: the state, the family and the individual, as well as the fundamental human rights, called „personality rights”. The modern public order has the mission to respond to the demands of the contractual life, determined mainly by the great economic changes that took place and continue to take place in the modern society. The modern public order has two components: the economic public order of direction and the economic public order of protection. The economic public order of direction is objectified in the legal regulations which offer the state the possibility to guide, direct and lead the contractual life, in order to be as much in line as possible with the economic utility. The objective of the economic public order of protection is to restore and to achieve the contractual balance between the weaker contractor, which must be protected, and the stronger economic contractor, which is most often a well-informed professional. The study ends with a brief analysis of the sanctions which intervene in case of breach of the public order upon the conclusion of contracts. In principle, the sanction is the absolute, total or, as the case may be, partial, nullity of the contract in question; obviously, this sanction will be applied in the cases where the law expressly provides so, as well as in the hypothesis that by the violated legal norm it is defended a general interest. By exception, the nullity of the contract will be relative, when the violated imperative norm protects a particular interest, being part of the content of the public order of protection. Apart from the sanction of the nullity of the contract, some legal acts can be sanctioned with their total or partial ineffectiveness.

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