Breach of Contract and Damages in Romania

If you paid for something you never received, or got something other than what you agreed, you can claim compensation. I help you put the other party formally in default, and together we work out the damages, penalties and interest you can claim, by agreement or before the Cluj courts.

In my experience, the details matter in this area of civil law: what the contract says, whether the debtor (the party who has to perform) was properly put in default and what you can prove.

What are the conditions for contractual liability?

Everyone must perform the obligations they’ve taken on under a contract, and anyone who fails to do so without justification is liable for the loss caused to the other party (art. 1.350(1) and (2) of the Civil Code). To get compensation, you have to show:

• a validly concluded contract, which I’ve written about on the civil contracts page;
• a failure to perform the obligation: total, partial, late or defective;
• a loss that is the direct and necessary consequence of the failure to perform (art. 1.530);
• a formal notice of default (punere în întârziere) to the debtor, unless the debtor is in default by law (art. 1.522 and 1.523).

Fault doesn’t have to be proven separately: a contractual debtor’s fault is presumed simply because the obligation wasn’t performed (art. 1.548). It’s up to the debtor to show a cause that releases them from liability.

How do you put the debtor in default?

You can put the debtor in default with a written notice asking them to perform, delivered through a bailiff (executor judecătoresc) or by any other means that gives proof of delivery, or through the court claim itself (art. 1.522(1) and (2) of the Civil Code).

The notice must give a time limit for performance that takes account of the nature of the obligation and the circumstances; if it doesn’t, the debtor can perform within a reasonable time of receiving it (art. 1.522(3)). If you sue without first putting the debtor in default, they’re entitled to perform within a reasonable time of being served with the claim, and if they do, you bear the court costs (art. 1.522(5)).

In the cases set out in art. 1.523 of the Civil Code, the debtor is in default by law, with no notice needed. That’s when the parties agreed that simply missing the deadline has this effect, or when the debtor has made it unequivocally clear they won’t perform. The same goes for a debtor who repeatedly refuses or neglects an obligation performed over time (executare succesivă), or who fails to pay a sum of money owed in the course of running a business. It’s for the creditor to prove these cases (art. 1.523(4)).

What compensation can you claim?

You’re entitled to full compensation for the loss caused by the failure to perform (art. 1.531(1) of the Civil Code). That covers what you actually lost and the profit you missed out on, plus the expenses you reasonably incurred to avoid or limit the damage (art. 1.531(2)). You can also claim compensation for non-pecuniary loss (art. 1.531(3)).

A few rules limit the amount:

• future losses count only if they’re certain, and the loss of a chance is compensated in proportion to the probability that it would have materialised (art. 1.532);
• the debtor is liable only for the losses they foresaw or could have foreseen when the contract was concluded, unless the failure to perform was intentional or due to gross negligence (art. 1.533);
• if you contributed to the loss through your own fault, or could have avoided it with minimal diligence, the damages are reduced (art. 1.534).

For money not paid on time, the rule is simpler: you’re entitled to late-payment damages (daune moratorii) from the due date until payment, in the amount the parties agreed or, failing that, the amount set by law, without having to prove any loss (art. 1.535(1)). If no interest was agreed, you can estimate it with the statutory and penalty interest calculator. If the contract has a penalty clause (clauză penală), you claim the amount it sets, again without proving any loss (art. 1.538(4)), and the court can reduce it only in the cases strictly set out in art. 1.541.

The same rules apply when a contract of carriage isn’t performed. For a delayed or cancelled flight, you can estimate the compensation set by the regulation with the delayed or cancelled flight compensation calculator.

How do you prove the loss?

Proving that the contract wasn’t performed doesn’t spare you from proving the loss, unless the law or the contract says otherwise (art. 1.537 of the Civil Code). In practice, you prove it with the contract and its annexes, invoices and receipts, your correspondence with the debtor and acceptance reports (procese-verbale de recepție). Quotes or contracts with third parties to replace what you never got can also help, as can an expert report (expertiză) where needed.

When is the debtor not liable?

The debtor isn’t liable when the loss is caused by force majeure (forță majoră) or a fortuitous event (caz fortuit), unless the law provides otherwise or the parties agreed differently (art. 1.351 of the Civil Code). Force majeure is an external, unforeseeable, absolutely irresistible and unavoidable event. A fortuitous event is one the debtor could neither foresee nor prevent.

Clauses limiting the debtor’s liability have their own limits. Liability for material loss caused intentionally or through gross negligence can’t be excluded or limited. A clause excluding liability for damage to property caused by simple imprudence or negligence is, however, valid (art. 1.355(1) and (2)).

How long do you have to act?

You can work out the last day of a time limit with the court deadline calculator.

Contractual or tort liability?

When the loss comes from a failure to perform a contract, the rules of contractual liability apply, and neither party can opt for other rules that would suit it better, unless the law provides otherwise (art. 1.350(3) of the Civil Code). Unlawful acts committed outside a contract, such as an accident or damage to property, fall under tort liability (răspunderea civilă delictuală).

How recovering your loss works

1. I review the contract, the correspondence and the evidence of loss, and tell you honestly what you can claim.
2. I draft the formal notice of default and, where appropriate, the notice of rescission or termination.
3. I negotiate a payment agreement with the debtor, if they’re open to one.
4. I file the claim at the district court (judecătorie) if it’s worth up to and including 200,000 lei, or at the tribunal if it’s worth more (art. 94 point 1(k) and art. 95 point 1 of the Code of Civil Procedure). Court stamp duty (taxă judiciară de timbru) is calculated on the value of the claim; you can estimate it with the stamp duty calculator.
5. Once we have the judgment, if the debtor doesn’t pay voluntarily, we move on to enforcement (executare silită).

If the debt is a clear sum of money arising from a written document, it may be quicker to use a payment order (ordonanță de plată) or one of the procedures described on the debt recovery page.

What documents you need

• the contract, its annexes and any addenda;
• invoices, receipts, bank statements, acceptance reports;
• your correspondence with the other party and any notices sent or received;
• any document showing the extent of the damage (estimates, replacement quotes, reports).

The consolidated text of the Civil Code is on legislatie.just.ro. For your specific situation, write to me or call me. Send me the contract and the correspondence you have, and I’ll tell you what you can claim and how long it usually takes.