The aleatory contracts under new civil code provisions.
Such it is defined in Article 1173, New Civil Code, the aleatory contract is a contract that through its nature or by the parties' will offers at least to one contracting party the chance of advantage, exposing it at the same time to the risk of looses, that depend upon an uncertain prospective event.
The aleatory contracts (that the former doctrine named gaming and betting (1)) are the contracts of onerous title, wherein the limits and even the existence of the obligation for one of the parties, or for both is not known at the moment of the contract conclusion because it depends upon an uncertain and future event, in this case the uncertainty being referred to the fulfillment or failure of the event (condition) or to the moment of fulfillment only (uncertain term). (2)
The extent and even the existence of an obligation at the time of an aleatory contract conclusion may be uncertain for one or all parties to the contract; however the chances of gain or loss exist always for all contracting parties and are never of a unilateral nature. Thus, each party seeks to gain an advantage and avoid incurring any losses. These opportunities cannot be assessed at the conclusion of the contract, but only upon the fulfillment or failure of the event, for its realization is independent of the parties' will. Opposite to the aleatory contracts, there are the commutative contracts, wherein at the conclusion moment the existence of rights and liabilities is certain, and the extend of it is determined or determinable. (3)
2. The Aleatory Element
One can easily notice that the aleatory element is essential and distinctive for aleatory contracts, compared to the commutative ones. Thus, in the case of aleatory contracts, the chances of gain or loss exist at the conclusion moment for all parties and not only one or some of the parties. One cannot conceive that the chance or advantage to be one-sided. For this reason, a contract with onerous title cannot be granted the aleatory character because one party cannot lose, and the other cannot win. (4)
The gain or loss are not known specifically at the time the contract is concluded so that it is not known which contracting party will win and will benefit from all advantages of the contract and which party will lose. The gain or loss can only be known and estimated at the time of completion or failure of the future and uncertain event. The chances of gain or loss, which exist for all parties must be correlative, meaning that the gain of the parties is correspondent to the loss the other party. (5)
The former regulation stated an incomplete definition under Article 1653 former Civil Code that provided the fact that in the aleatory contracts, the effects "regarding the benefits and losses for all parties, or for one or fewer parties depend on an uncertain event." There was confusion between the incertitude regarding the existence or the extent of an obligation, which could be unilateral, and the chance to perform benefits or the possibility to suffer a loss that could be only bilateral. Therefore, the alea element refers to the final outcome of a contract and not to the benefits due. (6)
For instance, in the case of the aleatory contract of life annuity, constituted on an onerous title, the chances of gain and, respectively of losses exist for both parties, being thus, bilateral. These chances depend on one and the same random element, this being in this case, the annuitant's life. The annuity granted gratuitously is not deemed to have any aleatory element, as the aleatory contracts represent a subdivision of contracts with onerous title. (7)
The odds of winning or loss in aleatory contracts must be considered at the conclusion of the contract so that the parties conclude knowingly the contract. The chance of win-lose being the essence of the aleatory contract, a commutative contract cannot ever turn into aleatory one even if it turns out later that it is advantageous for one party and unfavorable or detrimental to the other, for independent and exterior reasons to the contract effects. (8) Since the random element is essential to aleatory contracts, when its absence is determined, the contract becomes null and void.
Thus, in the case of the annuity contract, according to Article 2246 of the new Civil Code a contract is null and void if it stipulates a lifetime annuity constituted a third party who is deceased on the day of the contract conclusion. We are in a situation where the annuity was created whether for the life time of a person other than the annuitant or it was constituted to the benefit of a third party and in both cases the person is deceased. It is of the essence of life annuity contract that an individual exists on which the annuity is constituted and as it is impossible for it to be paid ab initio, the contract is null and void for total failure to perform the contract. (9)
In the former regulation, when the failure of cause was sanctioned by nullity it was considered that in the respective situation, the contract was void for lack of cause. Currently, however, when the lack of cause does not imply the sanction of nullity, we may say that this support cannot longer be accepted as sanction provided by Article 2246 of the new Civil Code is absolute nullity. (10)
Another cause of nullity expressly provided is the situation wherein a contract for life annuity upon onerous title is constituted for a person who, at the contract conclusion suffered from a disease because of which the respected person died within 30 days. From the analysis of Article 2247 of the new Civil Code, we extract the conditions for nullity intervention in this case: the contract for life annuity shall be with onerous title; the person for whom head it is settled shall have suffered from a disease and this disease shall have caused the death; the death shall have occurred within 30 days of the conclusion of the contract. If the annuity has been settled for the life of fewer persons, it is admitted that the death of one of them, within 30 days time period from the date of the contract conclusion because of a disease that the person was suffering at the moment of the contract conclusion does not lead to the nullity of the contract as the random element subsists in relation to others for whose life was settled the annuity. The provision related to the nullity brought by the death occurred before the time period of 30 days from the date of conclusion applies even if the parties knew about their disease and its severity, if from the terms of the contract and the circumstances one may not prove that the parties wanted to dissimulate a donation contract. (11)
As for the aleatory contracts, in general, the evident disproportion between the benefits of the parties is a possible consequence of the aleatory nature of the contracts. This disproportion is not an injury and does not constitute grounds for rescission of a lesion action, not even for minors with restricted exercise capacity. (12)
According to Article 1224 of the new Civil Code the aleatory contracts, transaction, and other contracts provided by law cannot be appealed for lesion. In terms of the number of unnamed aleatory contracts, it is limited. The Civil Code regulates the following types of aleatory contracts: the insurance contract, the contract for life annuity, the maintenance contract, gaming and betting.
The doctrine held that the legal definition of the aleatory contracts in the former regulation until 2011, under the Article 1635 of Civil Code of 1864 was not exact, because the chances of gain or looses exist, always, for all parties, and it can't be unilateral (Mazeaud, Mazeaud, Mazeaud, 1962), Lecons de droit civil, t. II, Paris, 85, no. 107). With regard to the extent of the obligation, however, it might be uncertain for one of the parties ( Malaurie, Aynes, Cours de droit civil. Les contract speciaux, Paris, 1988, 441, no. 950) or for all parties (Statescu, Birsan, (1992), Drept civil. Teoria generala a obligafiilor, Bucharest: All, 37-38). (13)
3. The Types of Aleatory Contracts
The Civil Code in force since October 1, 2011, regulates expressly the following aleatory contracts: the insurance contract, the contract for life annuity, the maintenance contract, gaming and betting. Despite the fact that the vast majority of aleatory contracts concluded by the subject of law fall within the types named by the new Civil Code, it should be noted that the number of aleatory unnamed contracts is virtually unlimited. (14) Gradually, some of aleatory contracts that have not received an express statutory regulation, being born as a civil institution of doctrine and jurisprudence have been imposed by the legislature and migrated towards the category of contracts called expressly regulated by law. That was the case of the contract of caretaking (sometimes called the contract of sale upon caretaking clause) a contract that until October 1st, 2011 did not have a proper regulation within the Civil Code but the new civil code allocates the Chapter 28 of Title 9 of Book 5, and respectively the Articles 2254 to 2263.
Considering the social importance of this type of legal act, as its spread in modern society, the first of the aleatory contracts governed by the new Civil Code is the insurance contract (Articles 2199 to 2241 Civil Code of 2009). According to the legal definition, by a contract of insurance the policy holder or the insured agrees to pay the insurance premium and the latter agrees, in the event of the insured risk, to pay an allowance, where applicable, to the beneficiary or to the third party. According to the same legal text, the contractor of an insurance policy is the person who settles the contract to cover a risk regarding another person or property or assets thereof and undertakes to pay the insurance premium. Prior to the entry into force of the new Civil Code, the Civil Code of 1864 contained only general provisions in contractual matters, applicable to insurance matters, the insurance contract being governed by special laws, especially the Law No. 136/1995. It is notable that the Article 1635 paragraph 2 Civil Code of 1864 ranked the insurance contract among aleatory contracts.
The contract for life annuity is governed by Articles 2242-2253 within the new Civil Code and describes the contract whereby one party, called grantor agrees to the benefit of a certain person, called the annuitant to regular benefits, consisting of money or other fungible goods during the life time period of the annuitant, unless the parties have stipulated the settlement of the annuity for the life time of the grantor or a third person. This type of contract was regulated by the former Civil Code, in the Articles 1639 to 1651. Unlike other aleatory contracts on which we focused in this study, the contract for caretaking had not been separately regulated until October 1, 2011, being an unnamed contract. (15) However, its presence in the sphere of social relations, especially after 1989, has been quite significant.
Within new regulation, the contract of caretaking is defined by law as a contract whereby one party agrees to carry out for the benefit of the other party or of a particular third party the necessary care and maintenance activities. If the contract did not provide the period of time of care and maintenance, then it is due to the lifetime of the annuitant. If there was settled in the contract the life contingency feature of the care and maintenance, it is due during the grantor's lifetime.
The gaming and betting contracts were not defined either by the former Civil Code or by the 2009 Civil Code, even if they have their own regulatory provisions, Articles 1636 to 1638, respectively Articles 2264 to 2266. In these circumstances, the doctrine has to provide definitions. Thus the game and the bet (sometimes called stakes or wager) were defined as aleatory contracts whereby the parties mutually agree to pay a sum of money or other thing to the winner based on the achievement (check) or failure of an event or fact--depending on the strength, skill, knowledge of the contracting parties or other persons or the hazard--situation which offers to all parties chances of gain and loss. The distinction between game and bet relies upon the role that the parties fulfill or not in the event: if the parties or at least one of them fulfill an active role, the contract is of game, and if the parties have no relation to the event, the contract is of betting/stakes/wager. (16)
The aleatory contracts are recognized by the civil law of the Republic of Moldova, as under Article 666 paragraph 3 of the Civil Code of the Republic of Moldova, entitled General Provisions Regarding the Contract, "the contract may be of adhesion or may be negotiated, synallagmatic or unilateral (generates obligations only of one party), commutative or aleatory and with instant or sequential execution, and of consumer." The main types of aleatory contracts are regulated by the Civil Code of the Republic of Moldova, within the Articles 847 to 858, the annuity, within the Articles 1301 to 1330, the insurance and Articles 1375 to 1377, the gambling and betting.
The aleatory contracts represent a distinct species of contracts found in our civil law, being characterized by the alea element (dice, luck, risk, danger, hazard), representing the exceptions to the commutativity, which represents the rule in contractual matters following to which, at the conclusion of a contract, the existence and the extent of the benefits payable by the parties are clear and can be appreciated even at the time.
(1.) Decision No. 1869 of March 9, 1926, of the Court of Cassation and Justice, published in 1930. I. 49-53, with a note by Georgiu Plopul.
(2.) Deak, F. (2001), Contracte special. Bucharest: Universul Juridic, 444.
(3.) According to Article 1173 paragraph 4 of the new Civil Code "a contract is considered commutative, if at its conclusion, the existence of rights and obligations of the parties are certain and the extend of it is determined or determinable."
(4.) Deak, F., op. cit., 445.
(5.) Florescu, D. C. (2012), Contracte civile in noul Cod civil. Edifia a III-a revazuta si adaugita. Bucharest: Universul Juridic, 332.
(6.) Deak, F., op. cit., 445.
(7.) Comanita, Gh. and Comanita, I.-I. (2013), Drept civil. Contracte civile speciale. Bucharest: Universul Juridic, 316.
(8.) Deak, F., op. cit., 445-446.
(9.) Comanita, Gh. and Comanita, I.-I., op. cit., 316.
(10.) Ibidem; see Deak, F., op. cit., 446.
(11.) Comanita, Gh. and Comanita, I.-I., op. cit., 316-317.
(12.) Florescu, D. C., op. cit., 332.
(13.) Deak, Fr. (1994), "Regimul juridic al contractului cu speciala privire asupra jocurilor de intrajutorare" Dreptul, 4: 21.
(14.) Florescu, D. C., op. cit., 332.
(15.) Baias, Fl., E. Chelaru, R. Constantinovici, I. Macovei (2012), Noul Cod civil. Comentariu pe articole art. 1-266, Bucharest: C. H. Beck, 2206.
(16.) Deak, F. (2001), Contracte special. Bucharest: Universul Juridic, 548.
PATRICK RARES LAZAR
Spiru Haret University
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|Author:||Lazar, Patrick Rares|
|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jan 1, 2014|
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