Contractual Liability for the Deed of Another Person – A New Consolidation Instrument for the Old Pacta Sunt Servanda

Abstract

Law no. 287/2009 on the Civil Code regulates for the first time, in addition to the debtor’s personal liability for non-performance of own obligations, the liability for the deed of third parties, which the debtor has involved in the performance of obligations. Thus, according to Art. 1519 of the Civil Code, unless the parties agree otherwise, the debtor is liable for any damage caused as a result of the fault of the person they use for the performance of contractual obligations. The basis for this liability with principle value in contractual matters lies, first of all, in the binding nature of the contract. It involves a concerted approach of several contracts, which cannot derogate from the pacta sunt servanda principle and which also disregard the limits imposed by the principle of relativity of contract effects, without being an exception to this principle, given that, by the conclusion of subsequent contracts, the old pacta sunt servanda is reiterated. Since debtors are liable for their substitutes, namely for all those they introduced in the performance of the contract, it results that the basis for this liability must be sought and found not only in the pacta sunt servanda principle, but also in the security that is normally due to the contractual creditor by the debtor who makes a third party act in their place. The legal independence of the main debtor as regards the manner of performance of contractual obligations, personally or by entrusting their performance to third parties, at the debtor’s own risk, may not derogate from the pacta sunt servanda principle, since this would recognize to the debtor even the possibility to evade the contractual liability when resorting to the performance of the contract through the so-called auxiliaries.