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16 AGORA Int'l J. Jurid. Sci. 1 (2022)

handle is hein.journals/agoraijjs2022 and id is 1 raw text is: AGORA International Journal of Juridical Sciences, http;Hunivagora.ro/jour/index.phpJaijjs ISSN 1843-570X, E-ISSN 2067-7677 No. 1 (2022), pp. 1-4 NOTES ON THE ASSIGNMENT OF CONTRACT IN THE NEW ROMANIAN CIVIL CODE C. CODREA Codrin Codrea Faculty of Law, 'Alexandru Joan Cuza' University, Iasi E-mail: codrin codrea@y oocom ABSTRACT Reduced to its basic functioning, the legal operation of assignment of contract implies a global transfer of the contractual position of one party, assignor, from a contract concluded with the ceded contractor, to a third party, assignee. If the legal operation as such does not seem to raise complications, it was an object of dispute in Romanian civil law even before the New Romanian Civil Code in force since 2011, considering the personal nature of the obligation relationship, especially with regard to the passive element of the obligation. Considering the debates around this topic in the legal doctrine of the Romanian Civil Code of 1864 and following certain arguments advanced in French civil law, the New Romanian Civil Code explicitly recognizes the assignment of contract as a distinct legal figure with specific effects in Articles 1315-1320. This article intends to analyse the legal regime of the assignment of contract, from the debates in the legal doctrine around this topic in both Romanian and other legal systems to the specific legal provisions which address the assignment of contract, starting with the notion of assignment of contract, the form of the assignment, the moment in which the assignment occurs, the effects the transfer has on the assignor, the legal exceptions which can be formulated by the ceded contractor and the warranty obligations of the assignor. KEYWORDS: assignment of contract, cession of contract, transfer of contract, assignment of rights, obligation Introduction As article 1315 of the New Romanian Civil Code states, assignment of contract is a legal operation in which one of the parties of a contract substitutes a third party in its position in the relationships generated by the contract. As such, the assignment of contract implies a global transfer of a third party in the contractual place of a party, distinct from the substitution of a third party in the obligation relationship which may be accomplished through means of transfer of obligations. During the previous Romanian Civil Code, considered independently, this operation was a matter of debate, in contrast to the case when it had a subsequent character when it was accepted, for example, when transferring a business fund (Vasilescu, 2017, p. 47). Two opposing opinions structured the legal debate on the subject. One opinion considered that, on the basis of the personal character of the obligation relationship, the transfer of the passive implied by obligations is inadmissible (Dogaru, Draghici, 2014, pp. 238-239). As such, the assignment of contract was not considered a means to transfer the contractual position of one of the parties to a third party, but a form of novation, generating a new obligation relationship. In addition to this, the entire assignment of contract, which was a matter of debates, could have been achieved by a number of undisputed operations such as the assignment of rights and personal subrogation for the transfer of the personal right and for the transfer of the obligation the personal subrogation, novation through the change of debtor, assignment of rights, or contract in favour of third parties, as means of transferring and transforming obligations (Ciochina-Barbu, Jora, 2020, pp. 358-359). Even if the assignment of contract was realized through these means, the substitution of the original debtor with a new one was to be conditioned by the acceptance of the creditor (Pop, Popa, Vidu, 2020, pp. 516-517). 1

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