Understanding the contract in general
Understanding the contract in general according to the Civil Code of 1929 Article 1076, the Civil Code of 1981 Article 142 and according to the current Civil Code Article 659 it is defined that: “Contract is a legal action by which one or several parties establish, change or terminate a legal relationship.”
In legal theory, a contract is defined as the consent of the will between two or more persons, aimed at establishing, changing or terminating a legally binding relationship.
Also in the legal literature we find other definitions that are essentially the same and based on law. Thus, law professor Mariana Tutulani defines the contract as a mutual legal action, as an agreement between the parties related to the intention to bring legal consequences, the creation, change or termination of legal-civil rights.
The legal relationship that the contract creates, changes or terminates must have as its object personal obligations that can be assessed economically. So the contract is a way of gaining ownership or other rights over things or obligations or both together.
From the definition of the law it follows that a contract is concluded to create an obligation but it can also be concluded to change an existing legal relationship as well as to terminate an existing relationship.
The Civil Code provides for a number of contracts but people can also enter into contracts that are not expressed in law and are valid as long as they do not conflict with the general principles of law and the interests of the parties.
The contract is seen as an agreement “of two or more parties”. It is two and only two parties to the contract of sale or lease. The contract is also and many parties in this case are the contracts of the company, the association where it can be formed by two but can be formed and by many parties.The concept of the parties does not match the person but the center of their interests.
In the structure of the contract there are essential elements that bring its existence and if one of them is missing then it can not bring consequences. These elements are: one or more subjects, the will, a form of manifestation of the will and the cause. This importance of these elements is expressed in Article 63 of the Civil Code.
In legal theory we talked about the contract as the consent of the will of two or more persons, ie the declaration of their will. The contract is concluded when agreement is reached between the declarations of the various contracting parties. The parties must be free to express their will otherwise the contract is invalid.
The expression of the will is done in a certain form, it can be required by law or when it is not provided by law, the principle of freedom operates where the parties have the choice for the form of the expression of the will. The form of concluding a contract can be silent occurs when the will of the parties or one of them is not expressed but ascertained by their behavior and expressed occurs when the will is declared in writing, orally or by any other sign. Specifically according to Article 80 of the Code Civil: “Legal action may be taken in writing, orally and by any other unequivocal expression of will.” The lack of a written form of legal action when all the evidence presented in court clearly shows the relationship between the parties, can not lead to the conclusion of non-enforcement in law. The will of the parties can be done at one time but the declaration of will is done in different stages where it gets different names like proposal and acceptance.
The proposal is the declaration of the will of the party that takes the initiative to enter into the contract while the acceptance is the declaration of the will where the recipient of the proposal directs to the proposer, may accept or not the proposal.The recipient of the proposal may respond negatively to the proposal or may not respond at all without explaining the reasons for non-acceptance.
Another important element of the contract is the cause from which it is the socio-economic function of the act of will. For example: the reason for the sale of this contract is the exchange of the item for the price. The transfer of ownership of the item or the obligation to pay the price are the justification of the seller and the buyer, where the former justifies the expenses of the buyer and the latter the fact of deprivation of ownership.