Răspunderea pentru neexecutarea anticipată a contractului
Liability for anticipatory breach of contract

Summary/Abstract: Reflecting practical necessities, the acknowledgement of the legal consequences of an anticipatory breach of contract is generalised in the major Western legal systems, in international instruments dealing with contract law and in academic projects for the harmonisation of contract rules. In a broad sense, covering the various legal bases employed to this end in comparative law, an “anticipatory” breach exists where, effectively or only apparently, the consequences of a failure to perform a main obligation without lawful excuse occur before such obligation is due, following acts whereby the obligor irreversibly precludes future performance or destroys the obligee’s trust in such performance. The economic reasons which make it necessary to build a legal regime of anticipated breach also exist in Romanian civil law, as demonstrated by case law which has already confronted this phenomenon. We argue in this paper that, absent express provisions on the applications of anticipatory breach of contract in the Romanian Civil code, the appropriate legal basis for such applications is an implied, negative and ancillary obligation incumbent on each party owing to the completive function of the requirement of good faith and due as soon as the contract is entered into. Considering the subject matter of this obligation, the suggested legal basis enables the obligee to resort to remedies for a failure to perform without lawful justification, with a specific configuration, where the obligor precludes the future performance of the main obligation, repudiates the contract or creates a high risk of non performance, with results similar to those reached in other legal systems.

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