- High Court of Cassation and Justice
DESIGN SERVICE CONTRACT – BETWEEN TWO ROMANIAN COMPANIES –UNIDROIT PRINCIPLES IN SUPPORT OF THE SOLUTION ADOPTED UNDER APPLICABLE DOMESTIC LAW (ROMANIAN LAW)
PRINCIPLE OF PACTA SUNT SERVANDA – REFERENCE TO ART. 1.3 UNIDROIT PRINCIPLES
NON-PERFORMANCE AND EXCEPTIO NON ADIMPLETI CONTRACTUS – REFERENCE TO ARTS. 5.1.1, 5.1.2 AND 7.1.1 UNIDROIT PRINCIPLES
Two Romanian companies (A and B) entered into a design service contract.
Company A brought an action against Company B requesting the payment of services’ price as provided under the contract. Company A argued that since the services had actually been provided, the price of such services must be fully paid in accordance with the principle of pacta sunt servanda. Company B requested the Court to dismiss Company A’s claim, as the latter did not correctly perform its contractual obligations. Furthermore, Company B requested restitution of the first instalment already paid, noting that it only had paid the first instalment, and not the full price of the services, in light of the ‘exceptio non adimpleti contractus’.
Both the Court of First Instance and Appellate Court dismissed Company A’s claim and ordered the restitution of the first instalment. Both Courts found that Company A did not prove the correct performance of its obligations and, in light of the so-called ‘exceptio non adimpleti contractus’, Company B’s decision to suspend the payment of the price was justified. Moreover, Company B was entitled to the return of the first instalment already paid. In so ruling, the Appellate Court referred not only to the relevant provisions of the Romanian Civil Code, but also to Articles 1.3, 5.1, 5.2 (5.1.1 and 5.1.2 of the 2016 edition) and 7.1.1 of the UNIDROIT Principles.
The Court of Cassation confirmed the ruling and the reasoning of the Appellate Court.
Original full text in Romanian available at www.rolii.ro}}