You are on page 1of 13

Contracts in the Civil Code comparative presentation

Partnership Deed
The former Civil Code defined the Partnership deed as a contract between two or more people who decide to share assets with the purpose of obtaining certain gains from the communion [Art 1491, CC]. The New Civil Code has kept the essence of the definition, developing it. So, through the Company contract, two or more people take upon themselves the obligation to cooperate in order to unfold an activity and contribute with capital, assets, knowledge or service, in order to share profits or benefit from the gaining that might result. In order to the company to be valid created, his object of activity must be legal. [art. 1881, NCC] The old and the new regulation have a different perspective on the types of the contract, so: a. The Civil Code from 1865 contained two kinds of the company contract universal company and the private company. The universal company has, also two sub categories : universal company of all assets, where all the assets of the associates would became common goods, so they would also share any of the profits obtained; Universal company of profits, where all the gaining obtained from using their assets would be shared. In practice, this kind of company has never been used, as their lack of applicability. The private company refers to the partners that put in common only certain assets, their use or their fruits. The company is created the moment when the partners sign the contract. b. The New Civil Code refers to different kinds of companies, so: The unlimited guarantee collective company Limited partnership Limited stock partnership Joint stock company Limited liability company Old Civil Code as well as New Civil Code it has been stated in the contract whether the company is created for a limited or unlimited period of time. It, also, must be specified if the company

has a lucrative or non-profit purpose. The associates can also, establish whether the future company will have legal personality or not. If the company become a legal entity, all the assets will enter into its private property, but, if it will not have legal personality, the assets will form a common property, unless it is decided about their use in common. It has to be mentioned that in both regulations, in order to create a company, the associates must have the legal capacity required by the law. The contract has to be made in writing and signed by all the associates; this form is ad probationem. Regarding to the company contract, it has to be said that the associates have joint liability, in case of any prejudice when creating the company (broking any form conditions of the contract or a formality while becoming legal entity) so neither of them can skive from their responsibilities. This rule it is also applied for the administrator when there were not respected the required formalities for the amendment of the contract. It must be mentioned in the contract if, in case of one of the associates is dead, his inheritances will take his place as partners or they will receive only the corresponsive amount from the issued capital , considered at the time of the death of the associate. The annulment of the partnership deed. It is statutory that it is not valid the deed where either is written that one of the associates is excused from his responsibilities, or it is mentioned that one of the associates is the only beneficiary of the profit. The New Civil Code underlines that the deed is annulled if it breaks any of the conditions mentioned in the Civil Code, as well as in other laws regarding to the same topic. Another sanction for the clauses that are not according to the law will be thought as unwritten, so they could not be applicable.

Transportation Deed
Before the enforcement of the New Civil Code, the transportation deed was regulated in the Commercial Code. At the moment, it is regulated in the New Civil Code, art. 1955-2008. The transportation deed is a contract that consist in the carrier who commits himself to convey a person or a good from one place to another, in exchange for an amount of money, named price, which will be paid by the passenger, sender or receiver. In order to prove the transportation deed, there are used the following documents: consignment-note, counter-foil, delivery bill, bill of lading, and ticket or travel card.

The dispositions statutory in the Civil Code are applicable to any kinds of transport, unless there it is contrary specified in other laws. There are two kinds of transport successive or simultaneous. It is considered a successive transport when it is done by two or more carriers that use the same mean of transport and it is thought to be a simultaneous transport when two or more carriers use different means of transport. It must be said that the carrier cannot refuse to transport a person or a good unless it has a high justified reason to do so. a. Transportation Deed for goods. When referring to transporting goods, the sender must give to the carrier, apart from the transport paper (this must be signed by the sender; usually, there are required three copies, for the sender, for the carrier and for the receiver), any other supplementary documents (sanitary, bond note, fiscal, etc) necessary in order to perform the transport. The transportation paper must contain identification data of the sender, place and time of handing in the package, departure and arriving point, details regarding the good, such as volume, weight, condition, its nuisance value, etc. Usually, there are required three copies of the transport documents for the sender, the carrier and the receiver. There is also the possibility for the carrier to request a transport document for each of the goods transported. In case there are any prejudices because of a flaw of the good, the responsibility belongs to the sender; although in relation with third parties the carrier takes all the responsibility. In that last case, the carrier has the right to sue the sender for compensation. The sender is also responsible if the good is poorly packaged and it causes injuries for the other packages. In this situation, the carrier will be responsible to third parties, but he will have the right to sue the sender for compensation. Although the carrier has the responsibility to give the package to the receiver, the sender has the possibility to break the transport, in exchange of an amount of money to cover the potential damages. When requesting this, the sender must show the travel document or the counter-foil, where the suspension will be mentioned. The sender has, also, the responsibility to pay the price of the deed. If the carrier finds himself in the objective impossibility of fulfilling the transport deed, he can either ask for instructions from the sender or he can give the package to the receiver, if the sender does not transmit any instructions. In this last situation, the carrier may use a different

itinerary from that mentioned in the deed, still having the right to request the fees and costs implied by the transport. Also, if the sender does not communicate any instructions within five days, the carrier may either deposit the good, give it to a third party to keep, or quantify it in order to gain on the costs he had paid with the transport of the good. The carrier has the responsibility to hand over the good to the receiver, this being the moment at which the receiver becomes the titular of the rights and responsibilities that result from the deed, unless it had not been specified otherwise in the deed. The Civil Code mentions the possibility for the carrier to hand in the goods not only to de receiver, but also to the holder of the transport document. The handing is takes place at the time and the location mentioned in the contract or at the time and location settled through practice by the parties. The carrier has the obligation to hand in the good in time, accordingly with the transport deed. He will be held responsible in case he does not fulfill its responsibility. Any mentions in the deed that will remove this responsibility from the carrier will be considered unwritten. When accepting the goods, the receiver may check its identity, quantity and condition on his expense. In case there are discovered new flaws, the expenses will be covered by the carrier. If the parties do not agree regarding to the condition, the quantity or the quality of the good, they may follow the legal procedure of the presiding judges order and ascertain of the condition by one or more appointed experts. While doing the procedure, if deposing the good causes significant damages or implies great costs, it may be decided to sell the good on the expense of the sender, previously informing the receiver or his mandatory, if they are in the city, or within three days since the execution. In case that the receiver refuses to accept the goods or he cannot be found, the carrier will ask for instructions from the sender, which has the responsibility to communicate them within 15 days, under the sanction of getting back the goods on his expense or having them sold by the carrier in order to compensate the costs. The carrier is responsible in case the good or certain parts from it got lost and even for the eventual damages of the good, and he is held to cover the costs and also to return the sums received for transporting the good. If the value of the good has been declared when handing the good, the damages will be calculated in terms of that value. In the event of the damages the costs will be proportionally calculated. The carrier may refuse to transport cash, jewels, securities, or any other goods of great value. In case he accepts to transport any of the goods previously mentioned, he will be held responsible within the value mentioned in the transport documents, unless the sender has declared that the goods are of a different nature or has evaluated them at a higher value, in which case he will be exonerated.

Also, the carrier cannot be held responsible if the disappearance or the damage of the good was caused by: the laden or the discharge of the good, if any of these operations were performed by the sender or the receiver; the lack or the flaw of the packing, that could not be noticeable on a visual check; the dispatching under a false, incorrect or incomplete category of some goods that there were excepted from transporting or could have been transported only in certain conditions; natural phenomena, specific when transporting with an open vehicle, if according to the law or the deed, the good must be carried this way; the kind of the good, if it is capable of breakage, splitting, corrosion, or spontaneous alteration, etc; losing weight, if the good suffers from this in normal conditions of transport; inevitable risks, in the event of carrying alive animals; the fact that the person in charge with protecting the good has not taken the required measures to preserve the good; force majeure/ act of God/ vis major; Any other cases mentioned in the law.

b. Transportation Deed for people and luggage. In this case, the obligation of transport also incorporates that of taking aboard and debarking passengers. The carrier is held to transport the passenger on time, safe and sound. On the grounds of the transportation deed, the carrier has the following responsibilities: To ensure for the passenger a sit according with his travel card/ travel ticket To transport the passengers kids without any costs or reduced costs, as mentioned in lex specialis. To carry without any supplementary fees the luggage of the passengers.

The Civil Code establishes that the carrier will be held responsible in case of the death or the harm of the passengers. Also, the carrier is responsible for any of the damages that result from breaking the deed or performing the deed in other conditions than those specified in the contract. In case the passenger is no longer interested in the transport because of the delay, he has the right to demand the refund of the price he paid. Any clause that excide the carriers responsibility previously mentioned will be considered unwritten.

In the event of successive transport, the responsibility for the death or the harm of the passenger will be of the carrier performing the transport at the time, unless the deed does not specifies that one of the carriers has full responsibility.

Mandate Agreement
The Mandate in an agreement whereby a party called mandatory undertakes to sign one or more legal documents on behalf of another party, called principal. Unless it is specified otherwise, the agreement is thought to be on a free basis. Although, if the mandate regards documents necessary for the exercise of the profession, the agreement is thought to be by onerous title. The mandate can be with or without power of attorney. If it does not result otherwise from the circumstances, the mandatory represents the principal only for the documents mentioned in the agreement. a. Power of attorney. The mandate agreement can be clenched either in writing, authentic or by private signature, or by the word of mouth. The acceptance of the mandate may result from performing it. It has to be said that, the proxy given in order to sign a document that is submitted by law to a certain form, must subscribe to the requested form. If the parties have not mentioned else, the agreement ends in three years. A general mandate authorizes the mandatory to sign only preservation documents and administration documents. In order to sign disposal or charging documents, transactions, to force through bills of exchange or promissory notes, to bring an action, the mandatory must be specially empowered by the principal. The mandatory shall not overcome the limits of his mandate. Although, he can extend his attributions, if he cannot, under any circumstances, to inform the principal, but it may be believed that the principal would accept the defection, if he knew the facts. If the agreement specifies that the mandate is by onerous title, the mandatory is held to respect his obligations as a diligent owner, but if the mandate is on a free base, the mandatory must fulfill his attributions with the same diligence he would use in his own business. The mandatory has the obligation to inform the principal about any circumstances that might imply the amendment or the annulment of the agreement. The mandatory must render the account of his transactions and to unload to the principal everything he had received on the account of his power of attorney. Also, the mandatory owes

interests for the sums used in his own good starting the day of the use, and for the sums he borrowed, he owes interests since the day he was kept long. The mandatory does not have any responsibility for the obligations assumed by those with whom he had closed the agreements with, unless he knew or he should have known about the insolvency or the impossibility of those. In the Civil Code has been stated the possibility to be more than one mandatory. In case there are more agents, the agreement does not produce any effects unless it has been previously accepted by all parties. Also, in the event of the plurality of the agents, even if the documents are signed by only one of them, they are incumbent on the principal, unless it has been specified in the agreement that they will all work together. It has been stated that, in case the mandate is by onerous title, in order to avouch for it, the mandatory has the right to retain any of the goods in his possession from the principal or received as a result of his mandate. The Mandate Agreement can ease in one of the following situations: General causes for ceasing a contract; The rescission of the principal; The death, the lack of capacity or the bankruptcy of the mandatory or the principal. When occurring any of the mentioned events, the heirs have the responsibility to inform the other party. In this case, the mandatory or his heirs have the obligation to continue to carry on with the agreement, if the suspension could cause any damages to the principal or to his heirs.

Although, there is an exception from this rule, as the agreement can be kept if, one of the cases mentioned before has occurred during the performance of the mandate, without breaking the right to revoke the agreement of the heirs. The Civil Code gives to the principal the right to revoke the mandate agreement at any time, formal or tacit, independent of the form of the agreement, and even if the mandate has been declared irrevocable. Signing a new mandate agreement is thought to be tacit rescission of the initial mandate. The principal is still responsible to fulfill his obligations to the mandatory and also to cover the damages produced by the unexpected rescission of the agreement. When there are more agents, the rescission regarding to one mandatory, produces its effects to all of the agents.

In case the proxy has been authenticated by a public notary in order to inform the third parties, the notary has the responsibility to authenticate the rescission and send a copy to National Notaries Record in order for the rescission to be opposable to third parties. The mandatory has also to right to revoke the agreement, but he must send a notification to the principal. If the mandate was by onerous title, the mandatory can only require the payment for the documents signed only by the time of the rescission. In this case, the mandatory must cover any damages caused to the principal. b. Mandate without representation. The mandate without representation is the agreement between the mandatory and the principal, where the mandatory signs documents on his own behalf and on the expense of the principal, assuming the obligations that result from the documents singed with third parties, even if they knew about the mandate. It must be said that between the principal and the third parties there are no legal relationships, although the principal, when replacing the mandatory, may exercise any rights resulted from the documents signed by the mandatory, if he previously fulfilled his obligations. Regarding the goods, the Civil Code notes that the personal goods can be claimed at any time by the principal, but for the assets, it is necessary a release document. In case the mandatory refuses to release the assets, the principal can require a judge to pronounce a closure that covers for the release document. i. Broker Agreement. The broker agreement represents the mandate contract that covers the purchase or the selling of the goods, service delivery, on the expense of the principal and on the behalf of the mandatory, which is in practice of a profession, in exchange of a specific amount of money, called commission. The contract must be clenched in written form, authentic or under private signature. If the law does not state differently, the written form is ad probationem. The contractor is held to fulfill his obligations to the mandatory. In this case, the principal may exercise any action resulting from the contract signed between the mandatory and the third party, replacing the mandatory. The cession of the action realizes through a deed of assignment, without any costs. The refusal of transmitting the actions engages the responsibility of the mandatory. The mandatory that ticks without the authorization of the principal, can be held responsible. He has to hand in immediately any credits and interests resulted from this activity, when it is solicited by the principal.

The ground rule regarding the responsibility of the mandatory is that he must respect precisely the limits mentioned in the contract. There is, though, an exception, so the mandatory is allowed to overcome the limits of the contract, in the following conditions are fulfilled: There is not enough time in order to wait for the principals approval, due to the nature of the activity; It may be considered that, knowing the new, modified circumstances, the principal would approve the decision; The overcoming of the limits would not essentially modify the purpose, the nature or the economical conditions of the commission.

When the exception is applied, the mandatory still has the obligation of informing the principal about the overcoming the limits of the contract as soon as possible. In the way of real states, if through the proxy, the mandatory has been solely to sell an asset, he will have the right to receive the commission, even if the payment for the selling has been directly by the owner or through a third party. If the mandatory does not bring into notice the identification data of the seller, according with the Civil Code, the principal is entitled to consider that the selling has been made on his account, so he has the right to demand from the mandatory to carry out the contract. The principal may, at any time until the mandatory signs the document with the contractor, to rescind the contract. In this case, the mandatory will receive a commission which is calculated according with the developed actions and the expenses that the mandatory made when carrying out the contract. The mandatory has the right to retain the assets of the principal in order to salvage his debts from the principal. ii. Consignment Contract. The consignment contract represents a form of the Commission Contract that covers the selling of chattels which have been handed in to the mandatory for this purpose. The contract must be clenched in written, in order to prove its existence. Unless mentioned otherwise, the consignment contract is by onerous title. The price of the selling may be noted in the contract, or, if there are no references to this matter, the selling will be made at the market price. Unless it is stated otherwise, the price for selling chattels through a consignment contract can only be paid with cash, transfer or crossed cheque.

The mandatory will receive the possession of the goods when signing the contract, but the principal will still have the right to control and inspect the goods, and also the right to demand the transfer of the goods, in the mandatory was tied for time. The costs regarding the preservation of the goods will be covered by their owner. The mandatory will be held responsible for the alteration or the loss of the goods in case that those situations were due to fortuity or force majeure, if they have not been insured when receiving them based on the consignment contract. The consignment contract can be rescind by the principal. iii. Spedition Agreement has been defined as a form of the commission contract where the remitter obliges himself on the account of the principal to sign a transportation agreement and to accomplish the accessory operations. The agreement may be rescind by the principal, but only after paying to the remitter the expenses he had made on the grounds of the contract. From the moment that the transportation agreement has been sealed, the remitter is held to exercise the right to countermand applicable to the transportation agreement. When choosing the means of transport, the remitter will respect the instructions of the principal; in case there are no such instructions, the remitter will act for the principals best interest. The remitter does not have an obligation in assuring the goods, unless it is specifically mentioned in the contract. Also, the remitter has the obligation to cease to the principal any discounts or bonuses granted during the exercise of the contract. The remitter is responsible in case the goods he was supposed to transport would alter or would disappear due to the lack of diligence when keeping the goods or at the time of choosing the means of transport and the carrier. The term of the prescription for the principals right to sue is one year, starting at the time when the goods were handed in or there were supposed to be handed in. In case that any of the moments of the transport take place outside Europe, the term is 18 months.

Agency Agreement
The agency agreement is the contract whereby a party, called principal empowers another party, called agent, either only to negotiate, or both negotiating and singing legal documents on the behalf and on the account of the principal, in exchange for a certain amount of money, in one or more determined counties/ regions. The Civil Code mentions that an agency agreement regarding only the negotiating is a mandate contract without representation, and the agreement that states both negotiating and signing legal documents is a power of attorney. The agency agreement must be clenched in written, under private signature or using the authentic form. If the law does not mention otherwise, the written form is necessary in order to prove the existence of the agreement. The parties cannot give up their right to riceive a copy of the agreement. The dispositions regarding the agency agreement cannot be applied to the following categories of people: Those who act as an intermediate on stock markets or at the .. Those who are agents or insurance brokers; Those who provide free services as an agent.

Also, according to the legal statements, it cannot be considering an agent the person who: Has the quality of legal or statuary organ of a legal entity and has the power to represent it; It is associate or a shareholder with the power to represent the other partners of the legal entity; It is an judicial administrator, official receiver, tutor, curator, custodian or receiver in relation with the principal.

The Civil Code states that the agent does not have the possibility of closing, on his account, a contract that has a similar object with the one mentioned in the agency agreement. Unless it is mentioned otherwise, the agent may contract with other principal, as well as the principal may close an agency agreement with other agents, in the same area and with a similar object of the contract. The non-compete clause, means, in view of these legal dispositions, a contractual stipulation, of whose effect consists in restraining the professional activity of the agent during the agency agreement. This clause must be written under the sanction of annulment. Also, it cannot cover

for more that is stated in the agreement; if so, it is considered unwritten, as stated in art. 2075, NCC. The agent is obliged to: To perform himself or his employees the responsibilities resulting from the contract in good faith and with loyalty; To obtain and communicate to the principal the information that he might be interested in regarding the regions in the agreement, as well as all the necessary information he has; To make all the efforts in order to negotiate and, if it is mentioned, to clench a contract for whose the agent was empowered to; to respect the instructions from the principal; to keep in his books separate evidences of the contracts of every principal; to deposit the goods or the samples in a ways that facilitates their identification.

Brokerage Agreement
The brokerage agreement is the contract whereby the intermediate commits himself to the client about bringing him into contact with a third party in order to clench a contract. This agreement differs from the mandate agreement (independently of the form of this kind of agreement) because the only responsibility of the intermediate is to bring into contract his client with a third party in view of closing a deal, unlike the mentioned contracts that also include de obligation to negotiate and to sign for the client legal documents. The intermediate has the right to receive a remuneration, but this only if he fulfills his obligations, assumed in the brokerage agreement. It has been stated in the doctrine that the legislator did not take into account the previous dispositions regarding this matter which stated that the intermediate has the right to receive remuneration, even if the contract has not been signed. In case there are more than one intermediate, each of them has the right to receive the corresponsive amount of money from the global sum. If there are no any other special legal statements or any conventions between the parties, it can be considered that the intermediate has the right to receive remuneration, according to previous practice in this matter. The intermediate has, also, the right to ask for compensation, in view of the sums he spend while performing the contract, but only if the agreement mentions that specifically.

The Civil Code states the obligation for the intermediate to assure for the client all the information regarding the advantages and opportunities of closing a contract. On the other hand, the client has the responsibility to inform the intermediate about the closure of the contract stated in the agreement within 15 days since it was clenched, under the sanction of doubling the remuneration for the intermediate unless mentioned otherwise in the contract. Also, in case the remuneration depends on the value of the intermediated contract, this information should be communicated in the term of 15 days previously mentioned. The intermediate has the possibility to represent the parties while clenching the contract, but only if he has been express empowered to do this.

You might also like