EIRP Proceedings, Vol 5 (2010)

A New Approach regarding the Legal Contract Lesion

Sache Neculaescu, Liviu Vasilescu


Why not agreeing upon a contract based on misbalanced services: because the party benefiting from an excessive service unlawfully exploited the precarious situation of the other party as a result of whom came to accept an unfair contract, or because contractual balance must be an essential feature of which and every contract with clearly established services? Which of the two reasons mentioned above is more important in terms of current contractual discipline? These are two questions which, no matter what answers will get, will involve an important matter of choice, in relation to which it will be possible to assess correctly the solutions proposed by the new Romanian Civil Code, as well as by the main bills on European codification of contract law. The present study upholds the idea of misbalanced services only if it constitutes rather a remedy for a contractual problem, if it is oriented towards the legitimate interests of the most vulnerable party of that contract and less interested in sanctioning the guilty conduct of the person who took advantage from an excessive service. As a consequence, we support the objective perspective in what misbalanced services are concerned, a reason for which we shall be making a few comments on some of the new legal provisions, by referring to the main bills on the European codification of contract law, and stating later on a few de lege ferenda proposals, in terms of contracts based on misbalanced services.


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