THE THEORY OF IMPREVISION

Sidonia Culda

FIAT IUSTITIA, 2010, vol. 4, issue 2, 41-52

Abstract: The theory of imprevision is a very good example of the way in which traditional civil law concepts are called upon to demonstrate their correspondence to a certain economic reality. Both its generating causes and its effects on contractual relationships plead for the theoretical and practical importance of this theory. Imprevision prevails as an efficient legal instrument in solving legal situations having contractual origins, determined by a drastic and unpredictable change of the economic circumstances at the moment of executing the contract as compared to the date of its conclusion by the contracting parties. As for its domain of application, imprevision occurs in contracts with pecuniary obligations. The conditions of imprevision are the following: the obligation becomes excessively onerous as a result of a change in contractual circumstances, the moment of the changes in circumstances must be ulterior to the conclusion of the contract, the unpredictability of the change of circumstances at the moment of concluding the contract, the risk determined by a situation of imprevision shall not be within the category of risks that the debtor has undertaken at the moment of concluding the contract or that arise from the nature of the contract. This article analyses the problem of imprevision comparatively: in Romanian law, BGB (Burgeliches Gesetzbuch) and the project of the future European Private Code. The latter one may represent a starting point for both doctrine and jurisprudence in reconsidering the relationship between the principle of the mandatory force of contracts and imprevision. Finally, we will analyse the similarities and differences between administrative imprevision and imprevision in civil contracts.

Keywords: imprevision; onerous; contract; adjustment; risk (search for similar items in EconPapers)
Date: 2010
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