The New Romanian Civil Code—Difficulties in the Transition Towards a Monist Private Law

Abstract

The new Romanian Civil Code repeals not only the previous Civil Code, but the Romanian Commercial Code as well. Thus the separate regulation of civil and commercial law ceased, and Romania has transitioned to a monist private law. This process, however, cannot be considered unambiguous and free of contradictions. The dualistic character of private law is not related only to the coexistence of distinct civil and commercial codes; the dualistic nature is given by the fact that different rules are applied to the same type of obligations. This is exemplified by the cases when commercial transactions (for example, sales contracts) are determined by at least partly different standards compared to the similar civil law transactions. Ultimately, it is irrelevant whether these specific standards are included in a separate code, the Civil Code or special laws; private law can still be classified as dualistic. In fact if we approach it from this perspective, the Romanian system of private law obligations can be divided into at least three subsystems, civil law, commercial law and consumer law obligations. The present study examines the implications of the entry into force of the new Civil Code and deduces that the majority of the determining factors of former commercial obligations are retained and developed through the introduction of the notion and special regulation of professional contracts.