Excepția de neexecutare a contractului și dreptul de retenție

In: Analele Universitării din București Drept, Band 2020, Heft 2020, S. 129-185

Abstract

This study contains a detailed analysis of the Defense of refusal to perform and the Right of retention in the current Civil Code, with reference to the practice of the courts of law and to comparative law issues. Therefore, following the update of the two legal institutions, the present study mirrors the defense of refusal to perform with the right of retention (i.e. legal frame, notion, legal ground, characteristics, application domain, exercise's conditions, operation's mechanism, effects and transitional law). Following the examinations of the above-mentioned issues, both legal institutions are compared in order to outline the differences between them. By doing so, the article aims to settle the edge between these two means of judicial defense and to put an end to long debated controversies in the literature and judicial practice. Key-words: Civil Code; favor contractus; the rule of specific performance; the plea of breach of the contract/defense of refusal to perform/right to withhold performance of reciprocal obligation; right of retention; defense; statement of defense; counterclaim; synallagmatic contract; the special effects of synallagmatic contract; remedies for breach of contract; imperfect guarantee