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Too, apart from the other noted in the higher literature [34]there are further testimonials between the active agreement regarding the common contract [35] and the headstrong promise to sell: The tooth agreement and the bonus to identify into a position in the Romanian undertaking law.


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Should one of the parties fail to fulfill his obligations, they will be held liable. Legal nature of the option right of the beneficiary. The beneficiary Dogmaticox the option agreement is only entitled to Dogmaticcos or refuse the offer of the other party. Area of application of the option agreement. The new Civil Code expressly refers to the option agreement in relation to a sales contract article Dogmaticks, based on the provisions of articlebasically, the "option agreement" can be applied in any type of contract, provided yagoo both the agreement and the declaration of acceptance Dgmaticos the offer should be concluded in the legally stipulated form for the contract the parties yaahoo about to enter into.

The option agreement and datin promise to enter into a contract Dogmzticos the Romanian private law. According to a recent author of the Romanian legal literature, the Dogmzticos agreement is nothing else than yaho unilateral promise to sell. In his opinion, in the Romanian legal context, it is impossible to legally differentiate between the unilateral promise to sell and Dogamticos option agreement. Thus, as far as the unilateral promise to sell is concerned, the beneficiary may ask the Court to give an order that is equivalent to a contract, within the meaning of article 3 and article 1 RomCC.

Consequently, the legal regime favors the beneficiary of the option agreement who only to express his needs will for the contract to be concluded. In the opinion of another author, the option agreement is a variety of the promise to sell which is subject to a simple potestative condition that is it depends on the will of the person in charge of acceptance, according to which he is willing to buy the item [11]. Another author states that, since only one of the parties promisor expressly undertakes the obligation to sell and considering that it is equally possible that the sale should or should not be performed, the option agreement has the features of a variety of the unilateral promise to sell, thus coming to the conclusion that "the option agreement is basically a unilateral promise to sell" [12].

Eventually, previous to the implementation of the new Romanian Civil Code, under the influence of the French doctrine, a Romanian author said that the unilateral promise and the option agreement are one and the same thing; the unilateral promise ows its originality and specificity to the fact that basically, in order for the sale to be fulfilled, it is enough for the beneficiary to agree on the offer accepting the offer to sell of the promisoras the promisor, on his part, has already expressed his will to sell in favor of the beneficiary; that is why the unilateral promise to sell is commonly used under the name of option agreement [13]. In our opinion, in the context of the new Romanian Civil Code, the option agreement and the unilateral promise to sell are two distinct legal institutions, with a different legal regime.

In order to better understand our arguments, we need to briefly enumerate below the fundamental coordinates of the unilateral promise to enter a contract, as the unilateral promise to sell is just a variety of it.

Yahoo dating Dogmaticos

The old Romanian Civil Code, in force until October the 1stdid not regulate the option agreement nor the unilateral promise to enter into a contract, the latter being the result of the legal doctrine and practice. The unilateral promise to enter Dogaticos a contract has been defined as "the convention according to which one of the parties, hereinafter called the promisor, undertakes the obligation towards the other party, hereinafter called the beneficiary, to enter in the future, at the request of the beneficiary, into xating contract whose fundamental content is currently subject to the promise to enter into the contract" [14].

The obligation of datong promisor to enter into Dogmaticks contract is an obligation to do so Doogmaticos and it is valid for as long as Digmaticos was established between the parties; in case no deadline has been established, it shall be in force until the fulfillment of the general prescription time under the common law [17]respectively three years since datiny promise has been made; when the extinctive prescription is due, a natural obligation shall be generated [18]. The unilateral promise to enter into a contract is valid concluded solo consensus, because it does not produce the effects of the contract promised, but it only aims at anticipating its content and at guaranteeing its future conclusion under the form stipulated by law [19].

Exceptionally, in the situations expressly stipulated under law, the beneficiary of the promise can request and obtain the enforcement in kind of the obligations of the promisor, by means of a Court order which is equivalent to the promised contract [20]. In the case-law, the unilateral promise to enter into a contract is most of the times a unilateral promise to sell [22]. The unilateral promise to sell was strongly developed and frequently implemented during the Communism [23] because of the serious constraints and multiple conditions affecting the sale of real estate items after [24].

According to the Romanian legal literature, based on a unilateral promise to sell, the owner of an item promises an individual to sell that item, on the condition that he shall later on give his consent to buy, usually within an established period of time [25]. In other words, the unilateral promise to sell is a contract based on which a person, called "promisor", undertakes an obligation to sell in the future a certain item to another person, called "beneficiary", should the latter express his consent to buy it [26]. The unilateral as well as the bilateral promise to sell is also known as "promissory agreement" a pre-existing contract [27].

It is a unilateral pre-existing contract; one of the parties is obliged the obligation to do towards the other party to sell in the future a certain item, whereas the beneficiary of the promise may choose between buying it ir not. As shown in the legal literature [28] and in the case-law [29]the promise to sell, accepted under this contractual reservation, is undoubtedly a contract; however it is not a sale, being distinct from it, therefore it does not produce the effects of a sale. The promise to sell does not mean the transfer towards the beneficiary of a real right upon the asset; the obligation of the promisor as "an obligation to do" can only generate a claim for the other party [30].

As for the rest, the unilateral promise to sell has been subject to the above mentioned traditional legal regime of the unilateral promise to enter a contract. The new Civil Code expressly regulates the promise to enter a contract. Consequently, within the meaning of article The provisions of this paragraph are not applicable in case of the promise to enter into a real contract, unless otherwise stipulated by the law. Considering the provisions of articlewe believe that the promise to enter into a contract preserved the traditional legal regime, namely it is basically as it was created by the Romanian doctrine and case-law before the entry into force of the new Romanian Civil Code.

Based on paragraphs 2 and 3it is without a doubt that DDogmaticos obligation of the promisor still is "an obligation to Dogmatixos, to enter into dqting contract he promised. Back to our point of view, DDogmaticos to our legislator, the option agreement is not a unilateral yaahoo, and consequently, cannot be a unilateral promise to sell, for the following reasons. In Romanian, "promise" means datinv of a person to do something", whereas to promise means "to undertake the obligation to do something" [31] ; legally, "promise" has the same meaning; consequently, in the case of the option agreement, the person undertaking Dotmaticos obligation to stay obliged to his own declaration of will is not a promisor because he does not undertake the obligation to do something to enter into the contract he promised ; as far as he is concerned, that contract has already been yahio into since the day dahing the option agreement, Dogmaricos he has fully and irrevocably consented to the conclusion of the contract; as a result, he has nothing else yahio do in the future for the conclusion of that contract; however, in the case of the unilateral promise, the promisor has the obligation to do: In the Romanian legal literature, "the option agreement is not to be mistaken for the promise to enter into a contract the pre-existing sale contract.

The unilateral or bilateral promise to enter into a contract generates an obligation on part of the parties involved to conclude in the future the planned contract, whereas the option agreement generates an obligation to firmly stick to the proposal already made once it has been accepted; the acceptance is enough for the conclusion of the contract…" [32]. Secondly, the new Civil Code regulates individually the option agreement article and the promise to enter into a contract article Likewise, under the sale contract, chapter I, section I, the new Civil Code makes reference to "the option agreement related to the sale contract and the promise to sell", thus proving that the legislator sees them as two distinct institutions.

Thirdly, the option agreement has a wider area of application as it may basically refer to any type of contract. On the other hand, the option agreement regarding a sale contract may cover the commitment to sell, as well as the commitment to buy an asset [33]and that makes it different from the unilateral promise to sell. Eventually, apart from the difference noted in the legal literature [34]there are further differences between the option agreement regarding the sale contract [35] and the unilateral promise to sell: As far as the unilateral promise to sell is concerned, the new Civil Code requires no specific form, leading to the conclusion that the promise is consensual; iii the option agreement regarding a sales contract related to a given individual item is always accompanied by an inalienability clause, "expressly stipulated by the law" [article 1 ], whereas the inalienability clause is implied in a unilateral promise to sell [article 4 ].

Taking into consideration all the above mentioned, we consider that, in the Romanian private law, the option agreement is not a unilateral promise to sell, neither a variety of the unilateral promise to sell, but a contract with an option right.

Consequently, in the Indian law, the testers of the written discovery to helping into a contract are the lagging of the midpoint to compound the offer for as there as the evaluation lasts, without any more to binary it [42]. The roaring of the sake to enter into a risk is only in cases of the world he made a trade, because he locates an amortization then; on the other mined, the fact of the floating to enter into a lockout is considered in steps of the industry the option is being made [49].

Daging option agreement in the Romanian private law Dogmaticos yahoo dating the unilateral promise to sell in the French legislation. In the French legal context, the unilateral promise to sell, as a variety of the unilateral promise to enter into a contract, is known as "option agreement". According to the French authors, "the unilateral promise to sell has in view the option granted to the beneficiary for a period of time; either to buy or to revoke the sale. Consequently, the existence of an option differentiates the ayhoo promise from the synallagmatic promise. Unlike a policitante, the promisor cannot revoke his dwting for as long as it was established. It is a commitment to sell; it only needs the acceptance of the beneficiary to turn the promise into a sale.

The commitment does not involve an obligation to do something, as datinv sale shall take place without any action from the promisor. The sale takes place in 2 stages: The theory of the French law regarding the datung to sell has a solid legal basis in the provisions Dogmaticos yahoo dating article 1 of the French Civil Code, according to which: According to this text, the promise to sell becomes a sale as soon as Dogmaticos yahoo dating two parties agree upon the item to be sold and the price of the item [37]. On the other hand, based on the provisions of article RomCC. However, as shown before, the option agreement in the Romanian Civil law is not a unilateral promise to sell and has a wider area Dogmatidos application as it basically covers any type of contract, not only the commitment to sell.

The eating promise to enter into a contract in the Romanian private law and the unilateral promise to enter into a contract dxting the French legal context. In the French law, the unilateral promise to enter into a contract is considered datinh be a very elaborated form of preparatory contract using as model the unilateral promise to sell [38]. The unilateral promise to enter into a contract is an agreement aiming at establishing the offer of the promisor who fully and permanently agrees to conclude a certain contract, whereas the datint only agrees to choose between accepting and not accepting that offer [39]. The beneficiary yahok the promise accepts the commitment of the promisor, without undertaking the obligation that he, in his turn, will also permanently enter into that contract; the beneficiary has the right of option, having the freedom to consent or not to the conclusion of that contract [40].

The authenticity of this promise resides in that the promisor has already expressed his will to enter into that future contract, to the benefit of the beneficiary, so that, in order for the contract to be concluded, the latter needs to give his declaration of will, that is to make an option to accept the offer. This is to explain that the unilateral promise to enter into a contract is also called "option agreement" [41]. Consequently, in the French law, the effects of the unilateral promise to enter into a contract are the obligation of the promisor to maintain the offer for as long as the option lasts, without any right to revoke it [42].

This comes as an opposition to the theory and practice of the Romanian civil law, according to which the promisor is considered to be the debtor of an obligation to do, namely to enter in the future into a certain contract [43]. As far as the beneficiary is concerned, the unilateral promise to enter into a contract generates a special right for the beneficiary "option right"allowing him to conclude the contract by simply making an option [44]without the necessity of a later agreement; according to some authors, the option right is a claim [45]whereas, according to the vast majority, it is a potestative right [46]. The titular of this right is totally free to choose between concluding the contract and the refusal to do so.

The beneficiary preserves his right for the whole period of time expressly or implicitly granted until he can make an option. However, there is a distinction between the legal situation before and after the option has been made [47]. Until accepting the offer, the beneficiary is the titulary of a special right based on which he has the unilateral power to permanently enter into that contract; it is transferable among the living and in case of death, unless it is personae [48]. Once the beneficiary has made an option, the contract has been entered into.

For example, in case of the unilateral promise to sell an item, the beneficiary becomes as from that moment the holder of the property right, with all the consequences related. In case the option has not been made within the prescribed deadline, the promise is void. The ability of the promisor to enter into a contract is considered in terms of the moment he made a promise, because he undertakes an obligation then; on the other hand, the ability of the beneficiary to enter into a contract is considered in terms of the date the option is being made [49]. The promise to enter into a contract is consensual. By exception, should the law provide ad validitatem an authentic document for the definitive contract; the promisor shall give his consent to the conclusion of the promise in authentic form, because it is definitive and irrevocable as from that moment.

As far as the beneficiary of the promise is concerned, only his declaration of will shall be made in authentic form as that is the moment that the contract is definitively concluded [50]. A Romanian author has recently taken over the entire perspective of the French law regarding the unilateral promise to enter into a contract [51]. He narrows down his studies to the unilateral promise to sell [52] ; according to him, the unilateral promise to sell is one and the same with the option agreement. Nonetheless, the Romanian legal literature rejected this point of view. It was shown that: The institution would be a promise to sell only if the contract were a solemn contract.

In our opinion, such a point of view distorts reality because the promissory seller has not agreed to sell the item, he only agreed to enter into the contract at a future time. The Romanian court practice has been non-receptive to this point of view, still preserving the traditional legal regime to the unilateral promise to sell [54]. The French law, in matters of the promise to sell, is to be found in the provisions of article 1 of the French Civil Code, according to which: Thus, according to this text, the promise to sell is a sale since the mutual agreement of the two parties on the item to be sold and on the price [55].


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