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From the point of view of specificity, legal prescriptions could be divided into rules (prescriptions with an increased degree of precision) and standards (open ended prescriptions that could adapt to a large spectrum of practical cases). This paper tries to open a debate on the necessary distinction between rules and standards in Romanian law. Following a brief introduction of the legal theories that justifies the categorization of normative techniques between the two classes the author analyses the way the standards complies with the requirement of quality of the law imposed under article 1 para (5) of the Romanian Constitution. The analysis focusses on the particular characteristics of the standards and it offers interpretative arguments allowing the standards to be controlled by using different criteria than those employed to censor the rules. If one would ask a standard to observe an absolute clarity criterion, this would collapse all standards into rules in order to comply with the requirements of the rule of law as constitutional standard (!). Starting from this paradoxical intuition, this paper essays to plead for a specific constitutional analysis for each type of prescription.
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Fiduciary relationships are created when one person offers another the trust to undertake in the name and on behalf of the beneficiary discretionary actions which are not monitored permanently. The risk involved is that the fiduciary could prefer to pursue his own interests when these are divergent with those of the beneficiary. The role of the law of fiduciary duties is to facilitate these relationships, by reducing the cost of providing trust, by preventing abuse or neglect and by minimizing the risks to which fiduciaries are exposed, through legal guarantees of their authenticity and fairness. This paper will analyze the consequences of supervising decision-making processes and it will expose the means of reviewing and analyzing directors’ fairness, i.e. certain „tests” that common law literature has identified in case law. By developing the Entire fairness test, trust, the cornerstone of the fiduciary relationship, is replaced by the term „fairness”, and the review of trust shifts to the review of the procedural premises of the decision-making process. Following the historical course of case law, we will provide an overview of matching the standards of conduct with standards of review, in order to rationalize and justify structural differences between them and the need to develop both types of standards.
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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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As it is shown including by the manner in which it was structured, this study is intended at first instance to identify the reasoning of the additional execution deadline, imported by the Romanian Civil Code as being one of the effectiveness conditions of formal notice. The second assumed goal shall be conditional on the reasoning of the fact that formal notice shall not allow, in the Romanian civil law, to the creditor to opt for the execution of the contractual obligation in the equivalent. Finally, the undertaken analysis aims at clarifying the legal significance of risk take-over by the creditor put in default. Mainly, we will attempt to point out certain means/limits by/in which contractors – whether they (re)act from their capacity as creditor or debtor – have the possibility to materialize the binding force of the agreement in their relationship.
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In this article, we intended to describe the implications of the standard over three judicial concepts: the object of obligation, the risk and the hardship. This gave us the opportunity to notice that the possible obstacles faced by the debtor when performing the obligation may be classified into three classes: alea normal of the agreement, risk events (for instance, of force majeure, in the broad sense) and events of hardship. The first class events should be overcome without any discussion, by the debtor, as their risk is attributed exclusively to it. Events of force majeure, in the broad sense, should not be overcome, as their risk – from the perspective of obligation, not from that of the agreement in its entirety – shall be the exclusive responsibility of the creditor. Finally, the events of the last class are related to both parties’ risk, and the agreement may be adjusted subsequently thereto, based on the hardship theory. Moreover, we have noticed that the absolute result obligations (for instance, those obligations the object of which contains only the result, and not the conduct focused on it) are likely to trigger neither the risk, nor the hardship, as, on the one hand, their subject matter is not defined by way of the standard and, on the other hand, those two institutions – the risk and the hardship – are dependent on the standard.
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Having its conceptual roots in the common law mechanism of the duty to mitigate the damages, article 1.534 of the Romanian New Civil Code mentions that, in the hypotheses in which a contractual promise to perform is broken by the contractual debtor and contractual loss is subsequently caused to the creditor, the responsibility for the specific loss is shared by the debtor as promisor and the contractual creditor in three types of situations. Firstly, one should nominate the cases in which the creditor culpably fails to take certain reasonable or available measures or fails to initiate a reasonable course of action that would have secured the diminution of the patrimonial loss generated by the debtor’s inaction. Secondly, in the cases in which the contractual creditor does successfully take action to moderate the damages pending upon the debtor’s failure to perform, but there should have been a costlier and more reasonable available/alternative course of action that the acting creditor could have been taken in order to secure the non-multiplication of the patrimonial losses. Third and final category of situations, when the creditor does successfully take action to bring about the promised contractual performance close to the one described in the contractual documents, but the costs of that particular action exceeds the loss that would have occurred had the creditor remain passive (art. 1.534 of the Romanian Civil Code). This study is centered on the problematics of under-compensatory damages rules under the creditor’s duty to moderate the damages and its implications on positive contract law, based on the provisions of article 1.534 of the Romanian Civil Code. The article also deals with precautionary behavior and its reverberations on the concept of culpable behavior, based on the action taken by both the contractual debtor and the creditor (articles 1.510 to 1.515 of the Civil Code). Nevertheless, the reasonableness rule encourages the creditor facing the debtor’s failure to perform, to take optimal and reasonable precautions towards mitigation of patrimonial loss, but it also discourages the creditor from taking unreasonable precautions that would augment the damages generated by the contractual non-performance. To encourage the creditor also to take optimal precautions, the legislator mentions in article 1.534 of the Civil Code that damages recovered by the creditor must be variant with respect to the amount of reliance and, ideally, should be correlated to the culpable behavior of the creditor who, by taking unreasonable action (i) or by not taking reasonable action (ii), has contributed to the patrimonial loss in the context of contractual non-performance. Active performance and co-performance of contractual obligations are two faces of the creditor’s responsible behavior in good-faith, while according to the provisions of article 1.528 of the Civil Code, far from being the sole remedy to the failure of performance of contractual duties, the anticipatory repudiation in bilateral contracts, as a remedy available for the creditor facing the non-performance of reciprocal contractual obligations, is doubled by the creditor’s option to take measures for the co-active performance of the contractual duties in accordance to the provisions of article 1.528 of the Civil Code. The article asserts the argument that, as a concept rooted in Roman law, the creditor’s good faith, in an objective sense, refers to a standard of reasonable behavior which is perceived as a functional criterion for the non-compliance to contractual obligations, counterweighing the rule of partial coverage of contractual damages.
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The decisive feature of the potestative rights shall consist of the subjection relationship being established between the holder of the potestative right and the passive subject. This subjection relationship led to the assertion of a discretionary nature of the potestative right. Can we deduct the fact that we are in the presence of certain rights being beyond any form of control from the action mechanism of these rights, which allows intrusion within the private area of interest of the passive subject? We attempted to demonstrate that this action mechanism requires, in our opinion, a risk control generated by the arbitrariness which the exercise of these rights involves. Sometimes, it is the law or the parties which require the fulfilment of certain prerequisites for the exercise of certain potestative rights, as it happens in the case of the right of unilateral termination, intended to reduce any risks generated by an arbitrary exercise. A subsequent verification of the potestative right shall be allowed and necessary, as the negative consequences of a conduct being accepted as discretionary may be removed.
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This article intends to review the particularities of the legal regime of unilateral resolution and termination in the contracts concluded between professionals, trying to identify the main ways of manifesting abuse of contract rights in this matter. At the same time, this study aims to provide an opportunity for reflection on the subsequent judicial intervention in the matter of abusive unilateral resolution and termination, in an attempt to identify the most effective ways to sanction the abuse of contract rights
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The study approaches the evolution of those regulations regarding the revocation of the mandate from the traditional rule of ad nutum revocation specific to the former Civil Code, derived from the old principles of the Roman law, to the more restrictive rules of the new Civil Code in this regard, adjusted to the contemporaneous realities influenced by the recent foreign codifications. According to the new regulation, the principal cannot revoke the mandate at its discretion and without any consequences. The revocation shall produce effects (the withdrawal of the power of representation) from the date when it has been communicated to the agent, however, if it has been made without any reasonable reasons or in a quick manner, the principle shall be required to perform its assumed obligations towards the agent, as if the respective revocation had not occurred, and to compensate it as well, for any damage caused to the latter. Finally, the situations in which, by way of exception, the mandate shall be irrevocable, being an accessory of a main irrevocable contract, are mphasized.
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Decision no. 24/2017, ruled in the settlement of a second appeal in the interest of the law, by the High Court of Cassation and Justice, by which it was acknowledged, in favour of a director whose mandate ended due to the expiry of the term, an extension of the powers of representation beyond this term, benefited from a rather reserved acceptability on the part of the doctrine. This article is not intended to be added to those critical articles, as it is prone to a pragmatic perspective: how shall the Decision be actually enforced? The difficulties which its acceptability in the legal and judicial practice is expected to cope with – the 2-year period between the adoption date of the Decision and the date when this text is published partly mitigates their purpose of predictability – may be regarded as an additional indicator of the questionable nature of the solution adopted by the supreme court, as a solution which prevents henceforth, a finding related to the cessation of the powers of representation sufficiently based on the identification, in the excerpt from the trade register, of the mandate start date and of the mandate end date, as long as those no distinct mention of the cessation of that director’s office is associated to those two dates published in the register. In this pragmatic approach, dedicated to the concrete consequences likely to be generated by the Decision, the practitioners’ position shall be first taken into account, as it is a position decisively influenced by the legal profession exercised. Beyond those particulars likely to be taken into consideration from one profession to another, it is useful to delimitate, as a matter of priority, as the Decision would only consider the substantive representation, related to the conclusion of legal deeds/agreements, an assumption in which notaries public would be most concerned, unless they are the only ones, or, otherwise, the representation of procedural nature would also be affected; in this latest case, which we are trying not to... homologate, the courts, the director of the Trade Register Office, the land book registrars and the bailiffs should also consider a director being the holder of an expired andate as a director whose mandate would not have come to term yet. As regards lawyers and legal advisors, in so far as they would be consulted by the individuals willing to establish companies or to get involved, along the way, in any already established companies, they would be required to advise them in considering the consequences of the same Decision, just from the point of view of warning them that the fact of holding any powers of representation under a limited term mandate does not have as a mandatory limit the date on which the mandate granted to the initial appointed director would be ceased. For these individuals, especially in the event where they initiated or, as applicable, ventured into a company-related experience, there are chances that the Decision be disastrous to them, and, in the event where the solution of the High Court has already found them involved in such an adventure, the risk increases the potential.
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The modern legislator has no longer the aura of a reasonable and ethical authority higher than humans, over which Divine Grace descends, like Moses, who climbs the mountain and receives the laws from God: “These are the laws which I will submit to them ...” (Exodus 21). Unfortunately, a certain degradation in the quality of the legislative process may be found. In the last 5 years, the financial and banking system has probably been exposed in the most serious way to certain difficult, controversial, unusual legislative decisions deprived of some serious economic, social and judicial foundation on the one hand, and, on the other hand, designed and drafted in a negligent and even wrong manner. The legislative process in a state of law shall be governed by the principle of lawfulness. The decisions of the Constitutional Court are more than eloquent to this end: there is no way to legislate anyway and anything, as the legislator is not above the law. The legislative frontline journal evokes the main episodes having influenced the legislative decisions with an impact on the financial and banking environment during this period.
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Agreements shall not be entered into for the purpose of creating any legal relationships, but for the purpose of meeting some economic needs, and the judicial nature shall only serve as a robe for the economic relationship created under the agreement. In the business field, the approach based on taking into account the economic goals aimed by the parties to the agreement as a matter of priority is far more important. This study examines the paradox generated by the regulation of the Civil Code into force, which, centralizing the drafting of the agreement on certain false awards, puts its economic sense into the background, and even denies it. In the spotlight of this study there is the continued drafting of the agreement, an innovation regulated for the first time under the Civil Code of 2009, which allows the drafting of the agreement with the disregard for the economic effect.
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The employment relationship is characterized by excellence through dynamism, and an area with as many economic implications as the decision to resort to collective redundancies could not make an exception. In this paper we have tried to capture the inconsistencies of the current regulations, contained in the Labor Code, regarding the collective redundancies procedure against the European case-law in the field. On the other hand, the efficiency of an economic activity is a key element of its survival. Therefore, a diligent employer will take into account all the risks, and will usually avoid the costs of non-compliance. However, in the matter of collective redundancies, an employer is not sufficiently diligent if it merely complies with the provisions of theLabor Code…
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The theme of this article is as interesting and generous as it is so complex and current. The topic is so wide that it could be the subject of a far-reaching work, which goes beyond the objectives of this approach. It is interesting because it refers to the way in which group companies act and to what distinguishes a group company and a group of companies as a whole from an ordinary independent company. It is generous as it not only permits but also compels, if we want to be rigorous in the analysis, to a broad, interdisciplinary approach – economy and law are intertwined from the first moment, that of the decision to start a business and to choose its legal form. Business decisions are influenced by many aspects, but below we stopped on a few that we considered more relevant: the current view on business and commercial enterprises, the group of companies as a legal form of big businesses, the influence of group structure upon decision-making process and, finally, a few considerations about business decision makers – directors of group companies.
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The business decision within the group of companies stumbles over the lack of group regulation, the lack of the legal personality of the group and of its own equity in our law. In the European Union, the group law is an evolving law, allowing us to identify any possible solutions regarding the manner in which in concreto business judgement rule shall be enforced.
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The director’s decision to dispose of a significant asset of the company does not only depend on the opportunity and profitability of an operation, however, it may impose the company existence itself or may determine the change in its object of activity. Stating the reasons that the disposal of an asset is a decision of the company, which may be advisable or not, profitable or not, however, it cannot be censored by the court, whereas this would equate to some interference in the company activity, courts shall imperturbably reject the shareholders’ legal actions. The purpose of this study is, in the given circumstances, to identify, according to Law no. 31/1990, any possible solutions for the situations in which directors dispose of significant assets, and these decisions are contrary to the interests of the company, jeopardizing even its existence.
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In the absence of certain uniform European regulations in the matter of the cross-border transfer of registered office, the free movement of companies in the European Union was mainly substantiated by decisions of the Court of Justice of the European Union. The article provides a brief review of the recent judgment Polbud and its implications in the matter, intending to demonstrate that, despite the firm position of the Court of Justice of the European Union (CJEU), which systematically censored, in virtue of the provisions of the Treaty regarding the right to free establishment, the restrictive national measures, the full mobility of companies further faces various obstacles, the removal of which can only be made by the active intervention of the European legislator.
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This study is intended to settle a matter of law of succession which represented a constant source of controversy in the light of the Civil Code of 1864 and which tends to claim the same quality as well, in the light of the new Civil Code: how is the inheritance divided when the surviving spouse claims rights over it together with the privileged dependent relatives and a privileged heir of a collateral subclass being established by the deceased as residuary legatee? Beforehand, the study briefly reviews the settlement proposals advanced in the light of the Civil Code of 1864 and critically describes the solutions provided by the doctrine in the light of the new Civil Code. During the first stage, there are reviewed the rules underlying the method of calculation of the inheritance reserve, namely whether in relation to that calculation all individuals who might have specific vocation in the absence of gifts and disinheriting should be taken into account or only those individuals who actually come to succession even in the presence of gifts and disinheriting, preserving their concrete vocation. The conclusion shall be in the sense of acknowledging the second way of calculation. During the second stage, the concepts of general vocation and concrete vocation are defined, as well as their relationship towards the right of inheritance. Hence, it is concluded that the inheritance right involves the fulfilment of three conditions: (a) inheritance capacity, (b) the individual claiming to be an heir should not be unworthy and (c) a concrete vocation, these being all the necessary and sufficient conditions. During the third stage, it is demonstrated that the title of heir is not conditional on actually acquiring a portion of the inheritance, but only on meeting the requirement of the concrete vocation, which involves, among others, that the concerned individual should not have been disinherited completely and effectively. Finally, the case under discussion is given the following solution: the wife picks up the reserve of 1/6, each of the privileged dependent relatives picks up a reserve of 1/12, and the sister picks up a reserve of 2/3 of the inheritance as a legatee, however, she acts as well in the capacity as legal heir – which allows it to be taken into account upon calculation of the succession reserves, thus, increasing the available share which she picks up as legatee.
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Interference of the contractual liability is conditional on the existence of a non-performance of the contractual obligation without any justification. The scope of the supporting non-performance causes includes, according to the current regulation: the order of performance of obligations, the plea of non-performance and the temporary impossibility of performance. Upholding the existence of such a supporting non-performance cause shall result in the non-interference of the tort liability, in the form of granting any damages, considering the lack of any requirements imposed by law. Moreover, under such an assumption, it shall not be necessary to examine a holding harmless cause.
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