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5 AGORA Int'l J. Jurid. Sci. [1] (2011)

handle is hein.journals/agoraijjs2011 and id is 1 raw text is: AGENT SUBSTITUTION AND ASSIGNMENT OF CONTRACT Dana Lucia Tulai* Abstract The juridical identity of agent substitution is a matter that has not yet been fully clarified by legal doctrine. However, two classic opinions have been formed concerning the identification of this legal operation: one considers agent substitution to be a typical example of subcontract and the other one assigns to it the characteristics of an assignment of contract. Keywords: agent, substitution, subcontract, assignment of contract. Introduction As we have shown in another study,' we consider that identiying agent substitution as a subcontract is only justified in those cases in which substitution is neither explicitly authorized, nor forbidden by the principal. Therefore, we intend to clarify whether in other cases, which do not match the subcontract description, agent substitution could be identified as an assignment of contract. To support this approach, we have the new regulations in the Romanian Civil Code, precisely articles 1315-1320, which, for the first time in our legislation, establish a legal regime for the assignment of contract, as well as article 2023 of the same code, that regulates agent substitution. Juridical Identity and Legal Regime of the Assignment of Contract Doctrinal controversy subsists in which concerns the juridical identity of the assignment of contract. Hereby, some authors admit without hesitation the existence of an authentic assignment of contract, having translative effects, but there are others2 who consider this operation to simply mean the conclusion of a new contract between the assigned contractor and a third party. There is no doubt that a contract represents more than the set of claims and liabilities that form its object. First of all, it is an expression of the common will of the parties who conclude it. Therefore, the idea of expressing the will to assign the concluded contract seems to make common sense, this implying the transfer of the contractual position of one party to a third party. *PhD in Progress, Professor Assistant, ,,Babes-Bolyai University, Cluj-Napoca, Political Economy Department, dana.tulaiaecon.ubbclui.ro 1 Dana Lucia Tulai, Agent Substitution and Subcontract, Agora IJJS 1/2011, Oradea. 2 J.Ghestin, Traite de droit civilLes effets du contrat. LGDJ,1994, n.687.

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