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Contract of Know-How

Contractul de know-how

Author(s): Ana-Maria Vulpoi / Language(s): Romanian / Issue: 3-4/2009

Keywords: contract; know-how; novelty; confidential; dynamic operation, complexity of components

Contracts is the central institution of international trade law, it is the most important legal instrument for carrying out the operations of foreign trade and international economic cooperation. These are the main source of international trade obligations, other sources (unilateral legal acts and legal facts) showing a much less important. International trade agreements are a form of commercial contracts and, as such, just as the latter have the common law rules applicable to civil contracts in general, of which however differ in certain features, generated by their commercial nature. Contract of know-how provided by law Romanian foreign trade, with the license agreement, as one of the legal operations that are turning out scientific and technical creation abroad and is about to acquire economic and scientific-technical cooperation Know-how knowledge is characterized by: novelty value of which is embodied in the results obtained; the confidential nature of knowledge, meaning that any person who has been made aware of a secret know-how implicitly undertakes to respect this character; by dynamic operation; and by the complexity of components. Between contracting parties, transfer of know-how is carried out in different ways. Thus, it can provide material that contains new technical, you can send plans, drawings, formulas, models or you can send engineers or technicians receive specialized. Finally, know-how contract must contain clauses on which the parties agreed, so any element of confusion to be excluded.

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Franchising contract – a modern juridical and economic instrument for business expansion

Franchising contract – a modern juridical and economic instrument for business expansion

Author(s): Adriana Florina Popa,Andreea Gabriela Ponorîcă / Language(s): English / Issue: 04/2012

Keywords: contract; franchising; development; business; juridical instrument.

Development of trade, as well as its dynamics in the context of globalization, have created the premises of acceleration in the commercial distribution networks expansion, with immediate effects in the sphere of law. Transgression, moreover, was predictable and any legal implication in economics, as well that of the judiciary system in the economy can’t be ruled out. Among the commercial agreements, franchising has experienced one of the most spectacular developments of all kinds of business, due to the favorable context in which it developed. In this paper we aim to analyze the essential elements of franchising, based on the legal phenomenon rather than on the economic one. This article also examines the behavior of existing and future entrepreneurs regarding the possibility of implementing this legal instrument. These results are consistent with the hypothesis that, even if, according to the statistics, the franchise contract has successfully imposed itself in the business world, there is enough reticence in adopting it as a development measure.

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Similarities and Differences between the Credit Contract and the Loan Contract in the Banking Law

Similarities and Differences between the Credit Contract and the Loan Contract in the Banking Law

Author(s): Diamanta Sojeva / Language(s): English / Issue: 2/2018

Keywords: contract; credit; loan; law; bank

In this paper we attempt to find the differences between the Credit Contract and the Loan Contract in the Banking Law. Banking business practices have played a role in conditioning the creation and amendment of a series of contracts that specifically regulate business relationships between the bank and its clients. As a result of these relationships, it appears that in the legal practice from the terminological context some contracts with the same designation are perceived contrarily. Such case has to do with the loan contract. We find the differences that characterize this contract in certain jobs relate to the subject of the loan. On the other hand, in banking business practice, the term loans and loans to loan contracts are not clearly distinguishable with clarity. The evidence also suggests that compiled legislation, including the national one, regulates this issue with a legal framework for the relationship of obligations, yet again, perhaps this is not sufficient. According to the analysis conducted we can conclude that since we are dealing not only with contracts with substantive differences but also with the same contract that differentiates in the part of the contracted object, the banking law doctrine should address these elements so that the differences between the mare clear by including in terms of terminology.

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GENERAL CONSIDERATIONS CONCERNING THE NOTION, THE ROLE AND DEVELOPMENT OF THE CONTRACT AND THE LIMITS OF FREEDOM TO CONTRACT

GENERAL CONSIDERATIONS CONCERNING THE NOTION, THE ROLE AND DEVELOPMENT OF THE CONTRACT AND THE LIMITS OF FREEDOM TO CONTRACT

Author(s): Andreea Gabriela(Cadar) Răducanu / Language(s): English / Issue: XVII/2018

Keywords: contract; convention; freedom to contract; public order; good morals;

Although the current Civil Code explicitly governs adhesion contracts, framework contracts and consumer contracts, and court practice permits forced or compulsory contracts, we consider that the birth, modification or termination of contractual relationships is and must take place freely.Currently, we consider that the intervention of the legislator in certain contracts is necessary in order to maintain the balance between the services of the contracting parties or to avoid certain negative consequences which would have a particularly serious impact on the entire population, but this intervention must be done in such a way as to respect the freedom manifestation of will.

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About the contract in its irrational version

Despre contract în varianta sa iraţională

Author(s): Gheorghe Piperea / Language(s): Romanian / Issue: 12/2018

Keywords: contract; freedom of will; emotional acquisitions;

According to the "canons" of the new (old) Romanian Civil Code, the contract should be an option, a manifestation of freedom of will (seen as a psychic function of conscious orientation of man towards the achievement of goals, characterized by the effort made to achieve them) and of reason. In this traditional sense, the intention guided by the rational cause of the contract would be the conscious will to contract. The economic or legal decisions of each individual are determined by the mental, emotional and cultural patterns in which they are anchored. Just as deliberative thinking is less and less present in our actions, reason is increasingly evicted from contracts, in favor of the irrational, short-sighted judgments and stereotypes. Therefore, the assumption that any contract is an act of conscious and free will assumed is a serious conceptual mistake.

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Tourism Services Contract in Russia and the United States

Tourism Services Contract in Russia and the United States

Author(s): Natalya Aleksandrovna SAVTSOVA,Maria A. VOLKOVA,Eduard Victorovich Bogmatsera,Natalya Viktorovna LUTOVINOVA / Language(s): English / Issue: 06 (38)/2019

Keywords: contract; tourism services; tour operator; travel agent; tourism services in the United States;

This article discusses the features of concluding contracts in the field of tourism services. The purpose of the article is to consider the contract as a form of implementation of tourism services. The authors have analyzed the practice of Russia and the United States in this area. Special attention has been paid to the specifics of these legal relations, as well as the directions of using foreign experience in the activities of national tourism companies. As a result, it has been concluded that legal regulation of the contract for rendering tourism services in these countries is somewhat similar. However, in Russia, this institution is regulated at the federal level and in more detail, which indicates the greater effectiveness of Russian legislation in this area. It has been proposed to make some changes and additions to the current Russian legislation in order to more fully regulate this institute.

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CONTENTS OF THE CONTRACT CONCLUDED BETWEEN PROFFESSIONALS TRADERS

CONTENTS OF THE CONTRACT CONCLUDED BETWEEN PROFFESSIONALS TRADERS

Author(s): Smaranda Angheni / Language(s): English / Issue: VIII/2014

Keywords: contract; clauses; negotiated; obligations; external clauses; standard clauses; unusual clauses;

The contents of the contract usually consist of the clauses inserted by the parties to the contract. The clauses may be negotiated by both the parties (in the case of negotiated contracts), as well as determined by one of the parties, and the other party, to the extent in which it wishes to conclude such contact, it adheres to, agrees with the clauses determined by the co-contractor. On the other hand, the contract contents vary according to the contract's nature, to its object, to the parties' obligations etc.The Civil Code provides some common rules applicable to all contracts in relation to their contents.Thus, according to art. 1272 Civil Code, if a contract is validly concluded, it binds the parties not only to what is expressly stipulated in its contents, but to other obligations as well, according to the practices already determined (existing) between the parties, based on the practice or as the law or reasonableness impose such clauses.At the same time, the legislator determines under par. (2) of art. 1272 Civil Code: "the usual clauses in a contract are inherent, even though they are not expressly stipulated". For instance, the clause regarding the contractual liability for the debtor's failure to observe its obligations is inherent even though the parties did not expressly provide such a clause in the contract.

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THE TERMINATION AND RESCISSION OF CONTRACT – GENERAL ASPECTS

THE TERMINATION AND RESCISSION OF CONTRACT – GENERAL ASPECTS

Author(s): Petruţa-Elena Ispas / Language(s): English / Issue: III/2015

Keywords: contract; termination; rescission; non-execution of obligations;

The issue of contract termination and rescission has been a major preocupation throught the scientific judicial literature. We shall endeavour to carry forth the topmost legal angles provisioned for by the dispositions in the current Civil Code, while allowing for brief interludes into the past dispositions on this subject matter. The termination and the rescission of contracts, as two of the most important redress methods for the non-execution of the assumed contractual obligations, are especially consequential both from the theoretical and practical facet. Wherefore we shall as well advance the law court’s decisions on the subject matter.

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CONTRACTUAL LIABILITY. RESCISSION AND TERMINATION OF CONTRACT, PENALTIES, INTERESTS, DAMAGES, PENAL CLAUSE

CONTRACTUAL LIABILITY. RESCISSION AND TERMINATION OF CONTRACT, PENALTIES, INTERESTS, DAMAGES, PENAL CLAUSE

Author(s): Raluca Antoanetta Tomescu / Language(s): English / Issue: IX/2015

Keywords: contract; clauses; interest on compensation; penalties; penal clause;

The contract is, worldwide, the quintessential legal mechanism of economic activity. The contract is, in fact, the conventional framework by means of which the parties assume obligations and gain rights in relation to one another, the materialization of the willing agreement between the parties and is deemed valid only if the parties have freely and benevolently expressed their consent. The contractual partners have the freedom of inserting any clauses they wish inside the convention, with the only condition of respecting public order and good morals. Therefore, next to the other contractual clauses, the parties will be able to insert in the contract the sanctions that they deem necessary in case of failure to perform the obligations assumed, and if the parties omit to make this specification then the lawmaker, by the power invested in him, has provided for a series of regulations meant to protect the aggrieved party's interests and to re-establish the contractual balance where needed. We therefore consider that contractual liability is not only an extremely exciting and vast field, but also one which is particularly complex from a legal point of view, due to the effects it may produce, depending on the manner in which it is applied in space and time.

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The decision not to perform the contract – on the desirability of breach of contract

Decizia de a nu executa contractul – despre oportunitatea ilicitului contractual

Author(s): Cristian Paziuc / Language(s): Romanian / Issue: 03/2019

Keywords: contract; efficient breach; morality of breach; the principle of specific performance;

If, as generally considered, the moral duty generated by a contractual promise flows from the voluntary nature of such promise, the automatic moral condemnation of the nonfulfillment of the obligation in its specific nature, even if voluntary and without legal justification, sits on weak rational grounds. Because practical constraints such as information and negotiation costs cause all contracts concluded in practice to have an incomplete nature in the sense that there is no real, subjective agreement on all circumstances which could interfere with the performance of the contract, the scope of the moral duty is narrower than that of the legal duty flowing from the contract. Morally, the promisor may be considered as bound to perform specifically in circumstances for which he explicitly undertook such duty and in those in which he would have undertaken to perform had the contract been a complete one. In circumstances where the cost of performance is higher that the benefit conferred to the promisee, there is no price for which the parties would have agreed on specific performance if they had anticipated such circumstances and bargained over them. Against this background, all that can be stated with certainty with respect to the failure to perform contractual obligations generally – even if voluntary – is that it has an ambiguous moral status, depending on the specific circumstances. There are, as a consequence, no good reasons for the system of remedies for unjustified non-performance of contractual obligations to be based on a preconception that the non-fulfilment of the contract specifically is immoral. Eliminating such preconception from the equation brings to light the technical arguments for which it is possible to limit the scope of specific performance, in cases of manifest inefficiency, by using the prohibition of abuse of rights, as well as the arguments for which specific performance is not a preeminent remedy and is not mandatory for the promisee for the simple fact that it is still possible and of interest. Further, in line with trends visible in comparative law, such solutions reflect the reality that specific performance can sometimes be inefficient, such that discouraging, in all cases, the nonfulfillment of contractual obligations in their specific nature can prove to be, in turn, socially undesirable.

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SOME ASPECTS REGARDING THE FORMATION OF THE CONTRACT

UNELE ASPECTE PRIVIND FORMAREA CONTRACTULUI

Author(s): Hristache Trofin / Language(s): Romanian / Issue: 02/2012

Keywords: contract; conclusion; offer to contract; acceptance of the offer to contract;

The contract practically represents the most important source of legal obligation relationships. Its conclusion involves meeting between the offer to contract and the acceptance, thus realizing the formation mechanism of the contract. In this regard, the Civil Code, to the previous regulation, comes with some changes but brings new elements too, which must be taken into consideration when concluding any agreement and when amending the existing ones.

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The Legal Regime of the Mediation Contract

The Legal Regime of the Mediation Contract

Author(s): Claudiu Ignat / Language(s): English / Issue: 45/2019

Keywords: contract; mediation; clauses; agreement; mediation agreement;

The legal relationships between the parties in mediation, both between the mediators and the parties, as well as between the parties, are established and defined by the mediation contract. The mediation contract is the will agreement of all parties involved in the mediation procedure, without which mediation cannot take place.

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Liability for anticipatory breach of contract

Răspunderea pentru neexecutarea anticipată a contractului

Author(s): Cristian Paziuc / Language(s): Romanian / Issue: 02/2020

Keywords: contract; anticipatory breach; implied obligation;

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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THE SPORTS ACTIVITY CONTRACT

THE SPORTS ACTIVITY CONTRACT

Author(s): Miruna Tudorascu / Language(s): English / Issue: 1/2021

Keywords: contract; sports activity; contractual liability; salary; taxes;

According to the provisions of the Law on Physical Education and Sport, the relationship between performance sports people and sports structures requires the conclusion of either an individual employment contract or a sports activity contract. The following scientific material will debate all legal and particular issues in connection with this field.

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SIGNIFICANT NON-PERFORMANCE OF THE CONTRACT, CONDITION OF TERMINATION

SIGNIFICANT NON-PERFORMANCE OF THE CONTRACT, CONDITION OF TERMINATION

Author(s): Mihai Raul Secula / Language(s): English / Issue: XV/2021

Keywords: contract; termination; conditions of termination;

Termination is the sanction that occurs in the event of the culpable non-performance of obligations arising from a bilateral contract with the performance of uno icto, consisting in its retroactive termination. In contractual matters, if, without justification, the debtor fails to fulfil his obligation, the non-performance is significant and the creditor does not require the enforcement of the contractual obligations, the latter may free himself from his correlative obligation, obtaining termination or termination of the contract.

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Smart contract and the standard of self-sufficient agreement

Smart contract şi standardul contractului autosuficient

Author(s): Lucian Bercea / Language(s): Romanian / Issue: 01/2022

Keywords: contract; smart contract; self-execution; self-protection; self-sufficiency;

The present text aims to explain why “smart contract” cannot be translated as “intelligent agreement”: a smart contract is not a contract, but a computer code, i.e. a software; a smart contract is not a substitute for the contract, but a technical support mechanism of the transaction, complementary to the contract. Subsequently, the text analyzes the consequences and limits of contract automation through smart contracts: the transposition of the contract into computer code, the self-execution of the contract and its self-protection, which tend to bring it closer to the standard of self-sufficient agreement.

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The Three-Cornered Contract in Psychotherapy of the Adolescent and theirparents

The Three-Cornered Contract in Psychotherapy of the Adolescent and theirparents

Author(s): Piotr Przybylski / Language(s): English / Issue: 10/2021

Keywords: contract; contracting process; contract levels; three-cornered contract; adolescent psychotherapy;

Transactional analysis has made an indisputable contribution to thinking about the contract, its formulation, and its importance in the process of psychotherapy. The article presents the concept of contract and the process of contracting in the perspective of transactional analysis and its implications in the field of psychotherapeutic practice, with particular emphasis on individual psychotherapy of adolescent patients. Erik Berne’s (1966) classic concept of the contract and Fanita English’s (1975) three-cornered contract are discussed, together with a special focus on the analysis of overt and covert processes leading to success and failure in adolescent therapy from the perspective of relational transactional analysis (Hargaden, Sills, 2002). The article also describes the specific problems a psychotherapist may encounter in therapeutic work with an adolescent and their parents from the perspective of the developing tripartite relationship.

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Some Assessments of the Maintenance Contract Free of Charge

Some Assessments of the Maintenance Contract Free of Charge

Author(s): Alina Iliescu / Language(s): English / Issue: 4/2022

Keywords: contract; maintenance; liberality; disinterested contract; sui generis contract;

Traditionally, the free maintenance contact is qualified as a donation, the solution being based mainly on the similarities between it and the life annuity contract. That solution, formulated before the entry into force of the current Civil Code, when the maintenance contract did not enjoy its own rules, remained optimal after 2011, even though, at present, in addition to the fact that there are special rules applicable to it, no essential elements such as legal differences between the services arising from the life annuity contract and those having their source in the maintenance one, but also those resulting from the conclusion of a donation. In addition, since its nature as an act with the title free of charge is unequivocal, it is also necessary to clarify its belonging to the subcategory of liberalities or disinterested acts. This is because, under the law of other States, the maintenance contract is configured as one for consideration, and for the situations in which the conventional maintenance claim is free of charge, the opinions are much more diversified. Analyzing these aspects and identifying sufficient arguments, we support the sui generis character of the maintenance contract free of charge, an act that is on the border between liberalities and disinterested contracts.

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Freedom to contract

Libertatea de a contracta

Author(s): Constantin-Claudiu Ulariu,Marta-Claudia Cliza / Language(s): Romanian / Issue: 03/2023

Keywords: contract; structure; freedom; effects; dimension;

In a democratic society, marked by an accentuated individual liberalism, assuming the behavioural indeterminism of each citizen in the concrete way of constitutional manifestation within the society, including through the unrestricted establishment of the option to exercise the subjective civil rights, as well as to determine the mandatory area that intends to assume, the freedom to contract or the autonomy of will, as it is also known, represents a unique and inherent value of personal independence, as well as an indispensable factor for the social and economic progress of each state. Therefore, the contractual freedom is revealed as an institution of civil law, but at the same time as a exigency of economic efficiency and of social progress, a genuine tool for translating the personality of each individual in the conventional-obligatory legal relationships that they outline, as well as a source of adaptation to the particular needs in the way in which the conventional activities are carried on, that is desirable and inherent to a permanently emerging society. Limiting the civil legal relations in some predetermined or rigidly outlined templates, by the rules of civil law, specific to the contractual matter, would constitute not only a source of inhibition in the carrying on and development of the conventional law relations, but it would even be harmful to society, by reducing the private initiative, always aimed at finding new opportunities for action and innovative valences. That is why, the freedom to contract has crystallized as an independent and well-defined institution since the late medieval period, in which the economic and trade relations in Europe experienced an unprecedented advance, and the autonomy of will, in determining the structure and contractual limits, constituted one of the main engines for the evolution of law and a dynamizing tool in the field of the market economy. Therefore, at present, contractual autonomy represents an acquired „good” of the civil law, but whose structural perspectives have experienced a continuous transformation and reinterpretation in the international law, and currently attracts special attention from the Western specialised doctrine, a fact that determines not only the necessity of its reverberant contouring in the Romanian internal law, but also the adjustment of the new dimensions of interpretation to the Romanian legislation. Through the present study, we aim to individualize the principled aspects that particularize this fundamental institution of the civil law and to exhibit the innovative doctrinal standard that enriches the dimensional aspects of this form of individual freedom of constitutional origin.

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Contract assignment

Cesiunea de contract

Author(s): Florin Mangu,Codruța Guzei-Mangu / Language(s): Romanian / Issue: 01/2023

Keywords: contract; assignment; assignment of contract; assignor; assignee; assigned party; consent; binding legal relationship; legal relation not derived from an obligation; substitution;

The objective of the assignment of contract is to cede a contractual position, by substituting the assignor for the assignee in all the legal relations born from a contract, i.e. both in those derived or not from an obligation. The replacement of the assignor with the assignee is done through a single, global legal operation, which requires, for its validity, the consent of all three subjects involved: the assigned party, the assignor and the assignee. The assignment of contract has a general applicability, regardless of the nature of the contract.

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