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Contract Law in the UK and Romania



1.1. Denition of contract

Under English Law a contract is an agreement which legally binds the parties. Sometimes
contracts are referred to as enforceable agreements. This is rather misleading since one party
cannot usually force the other to fulll his part of the bargain. The usual remedy is and always
has been damages (see below breach of contract). (Jaeger, Hok, 2010, p. 4)
Under Romanian law, according to Art. 942 Cod civil
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, a contract is an agreement between two
or several persons in order to create or dissolve a legal relationship. This denition apparently
excludes unilateral agreements from the category of contracts, but Art. 948 Cod civil
2
gives a
denition thereof: there are four essential conditions for the validity of an agreement: the consent
of the party who binds himself, its capacity to enter a contract, a denite object and a lawful
cause in the obligation (ibid, p.46)
1.2. Essential features of a contract

English contract:
The following features must be present in a contract to make it legally enforceable.
Offer - an expression on willingness to be bound on terms. Terms established by the offeror
here and only those included at this stage form part of the contract.
Acceptance - the party(ies) to whom the offer has been made communicate(s) a full and
unconditional acceptance of the terms of the offer (exceptions exist in unilateral offers and
the postal rule).
Consideration - the bargain element of the contract, also known as the price of a promise.
A simple contract may be a bad bargain, but it must be a bargain to be enforceable.

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Art. 942: Contractul este acordul ntre dou sau mai multe persoane spre a constitui sau a strnge ntre dnii un
raport juridic.
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Despre condiiile eseniale pentru validitatea conveniilor
Art. 948.Condiiile eseniale pentru validitatea unei convenii sunt:
1.capacitatea de a contracta;
2.consimmntul valabil al prii ce se oblig;
3.un obiect determinat;
4.o cauza licit.
Intention - the parties must intend that the agreement is to establish a legally binding
contract rather than simply a social/domestic arrangement.
Certainty - the terms of the contract must be sufciently clear and precise to be enforceable.
Offer and acceptance are the rst stages in establishing an agreement that may form a legally
binding contract. The terms that will bind the parties are included here.
Offers may appear similar to an invitation to treat (which is an invitation to negotiate) but
they must be distinguished so as to determine who the offeror is and which party(s) may
accept.
Generally, items on display on the shelves in a shop, advertisements in newspapers, items
displaying a price tag in shop windows, and information in auction catalogues have been
held to be invitations to treat.
An offer may be accepted at any point until it is terminated.
Acceptance can only be made by the offeree or his/her agent.
Consideration is the bargain element of a contract and may be referred to as the price of
a promise.
Consideration must be legally sufficient but need not be adequate.
The parties must intend for an agreement to establish legal relations to create an
enforceable contract and presumptions exist for social/domestic agreements and
business/commercial agreements.
The courts will look to the actions of the parties to identify terms of a contract, but these
must be drafted carefully and precisely if they are to be relied on as the courts will not
rewrite a poorly drafted agreement.
(http://www.oup.com/uk/orc/bin/9780199579464/marson_ch02.pdf)
Every Romanian contract should have:
The consumption loan agreement is subject to the general rules in terms of validity conditions,
but has its own features in what regards the capacity, approval and object.
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Pentru a fi valabil ncheiat, contractul trebuie s ntruneasc urmtoarele elemente: capacitatea, consimmntul,
obiectul.

Considering the property transferring nature of the contract, the lender must have the capacity
required by law in order to conclude order documents and must own the good representing the
object of
the agreement, while the borrower must have the capacity to conclude order documents.
The parties consent must be expressed freely not affected by any vices under the sanction of
contract voidableness.
The object of the consumption loan agreement solely consists of mobile goods, of kind, fungible
and consumable according to their nature. (Deak, 1999, p. 22)