The Procedure of Having the Contract Terminated: Notice or Judgment

In this study the author examines the two types of procedures of having a contract terminated: by giving notice to the other party or by filing a legal action against the other party and obtaining a judgment by which termination is ordered. Termination of a contract by a judge has deep historical roots in the varying legal systems, such as the French, Romanian or Russian legal systems. It indicates that a contract should be difficult to put an end to and it would usually compensate for the absence of a detailed system of legal grounds for termination of contract, thus requiring a deeper involvement and oversight of the judiciary. The ability of a party to set the contract aside by giving notice to the other party, and without involving the court, is considered to be a sign of a modern contract law, as it is faster and tends to avoid the uncertainties of the court. This system is supported in the common law, the German or Dutch legal system, as well as the UN Convention for the International Sale of Goods (CISG) or the Draft Common Frame of Reference of the European Union. The Moldovan Civil Code of 2002 dramatically shifted from termination by a judge to termination by notice, whereas the new Romanian Civil Code of 2009 made a step towards termination by notice for certain limited situations, while maintaining a default rule of intervention of the judge in the procedure of putting an end to the contract. The author conducts an analysis of the virtues and disadvantages of each procedural system and attempts to uncover and propose solutions to various procedural issues which arise in either system. He also shows how the procedural and material aspects of the legal institution at hand are intertwined and interdependent. The study concludes that, while termination by notice is a progress, the intervention of the court cannot be excluded in any of the two systems, since a disputed termination will, in any event, be heard and finally resolved by a judge. Therefore, regardless of the ideological choice made by a legal system, termination by notice and oversight by a judge most often go together in the intricate process of having the contract terminated.