Part III

George Alexandru ILIE, Assistant, Ph.D., Faculty of School, University of Bucharest, Legal Basis of the Rule Res Perit Debitori in the Romanian Civil Code (1864)
Nowadays jurisprudence and practice unanimously consider as legal basis for the theory of risks in bilateral contracts spare provisions of the 1865 Romanian Civil Code on matters such as rental, enterprise and company contracts. This paper argues for a different solution based on article 1020 of the Civil Code, which serves as general legal basis for the rule res perit debitori in bilateral contracts. Spare legal provisions mentioned above are not able to justify a legal analogy against a directly applicable provision as article 1020 of the Civil Code, and their premises and arguments are not adequate for an encompassing generalisation which covers all hypothesis of the risk theory. Re-reading article 1020 of the Civil Code in a systematic and teleological perspective highlights the fact that the so-called debate on the autonomy of the risk theory, sustained by the French scholars who created the classical theory of risk – Planiol and Capitant – does not exclude the identification of a common basis for the two institutions regulated by article 1020 of the Civil Code.  

Key-words: res perit debitori, risk theory, accidental impossibility to perform an obligation
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