Conformitatea lucrului vândut – între rigiditate tradiţională şi funcţionalism (I)
The conformity of the sold item – between traditional rigidity and functionalism (I)

Summary/Abstract: The lack of identity between the delivered and the sold item is known as the non-conformity of the sold item. At first sight, the content of this notion can be easily identified, as it is included in the sphere of the so-called “conform delivery” (art. 1314-1335 Civ.C.). But each step in the clarification of this concept brings out new difficulties. This study is aimed at assuming several answers to the big questions related to the conformity of the sold item, as it is regulated by the Civil Code. When trying to circumscribe the concept, the first thing to be done is to distinguish it from other legal notions, such as: hidden flaws (art. 1352-1360 Civ.C.), the lack of security, the error on the substance of the sold item, the misrepresentation or even the eviction, and, on the other hand, the identification of the principles laying at the basis of traditional regulations. In this respect, we took into account the longtime conflict between the materialist (objective) approach and the functionalist (subjective) one, both being born based on the Civil Code texts. Finally, the study is also aimed at identifying potential solutions to this conflict. From the synthetical point of view, the study comprises two parts. The first one is dedicated to the conformity guarantee and the second to the guarantee against hidden flaws. For both of them, we tried to establish the essential and defining conditions, which particularize them, by analyzing the declared differences in doctrine and jurisprudence, which are peremptory between the two guarantees, as well as the real or illusory distinctions between them and other legal notions. The conclusion of a synthesis of the jurisprudence and literature existing in this field is sceptical under the pragmatic and the intellectual aspect. The last section of this article comprises possible solutions for the intellectual labyrinth created by the doctrine and the jurisprudence for these two guarantees.

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