Studia Universitatis Babes-Bolyai Iurisprudentia

On the relationship between the binding force and the enforceable force of the administrative act

2025-03-17T23:53:02+00:00

The administrative act enjoys the privilege of prior or, in other words, it is traditionally accepted that the administrative act is enforceable. In reality, the use of this notion of "executory" is not exactly appropriate, especially since, in the description of the privilege, the enforceability of the administrative act is explained in terms of the possibility of the administration to use the direct coercive force of the state. However, in the absence of a competence expressly regulated by law, the administration, like any other private individual, cannot proceed alone, without the approval of the court, to the forced execution of its acts. In addition, not all administrative acts have a content susceptible to material execution, so that the privilege expressed in terms of the notions of "executory" does not seem to be a generally valid one for the administrative act, because, for the rest of the administrative acts, their binding force is sufficient to ensure their legal effectiveness. This is precisely why the present study aims to retrace the content of the privilege of prior. Starting from the writings of the creator of the privilege of the prior and noting some conceptual delimitations related to the binding force and the enforceable force of the legal act, our conclusion is that the administration is indeed privileged: the administrative act is binding and enforceable, even if it cannot be said about it that it is indeed an enforceable title and even if it does not allow direct forced execution. The prior is actually found in the idea that the administrative act, although unilateral, is legally efficient and effective, in the absence of any confirmation from the judiciary. The administrative act is imposed on third parties, an unusual aspect in private law.

Tying and bundling in EU Competition Law

2025-03-17T23:53:03+00:00

Tying and bundling within EU Competition Law are complex aspects of antitrust regulation focused on market competitiveness and consumer welfare. Tying involves selling products or services together, while bundling offers multiple goods as a single package.

This entry explores the legal framework, implications for market dominance, innovation, and consumer choice. It reviews landmark cases and regulatory developments in the EU, highlighting the balance between legitimate business strategies and anticompetitive behavior, and assessing their potential impact on competition and consumers.

On risks in contracts for works and services

2025-03-17T23:53:03+00:00

The risk, from a legal perspective, constitutes an objective element that exists independently of the parties’ intentions reflecting uncertainty and unpredictability. Simultaneously, it represents an event that may impact the contractual balance and result in adverse consequences for both parties. Consequently, this paper seeks to examine the mechanisms for managing risks in contract for works and services, emphasizing the importance of maintaining an equitable balance between the parties and the mechanism through which these risks can be adjusted when they arise during the contract. The entrepreneur, as a professional, assumes the independent fulfillment of contractual obligations at their own risk, while maintaining the freedom to organize and accountability for the contract’s outcome. The study explores the impact of risks on the rights and obligations of the parties, drawing from current legal provisions and offering additional interpretations concerning the transfer of the risks, the relevance of the nature of obligations and the role of guarantees. The analysis focuses on identifying the risks associated with the contract for services and works, as well as on the manner in which these risks are assumed by the contractor both before and after the moment of acceptance. Furthermore, it examines the transfer of risks between the parties based on the contractual stage and specific provisions, while assessing the influence of guarantees, the classification of obligations, and the method of determining price on the allocation of risks. The conclusions underscore the necessity for clear and flexible mechanisms to distribute risks equitably, thereby mitigating imbalances and ensuring fair and predictable contractual relationships.

Judicial interpretation that creates law?

2025-03-17T23:53:04+00:00

One of the major disputes in the Theory of Law is related to the limits of legal and judicial interpretation, with a predominant focus on the judge’s ability to create law. Although in the Romano-Germanic family of law, the role of the judge in the resolution of the case is limited by positive ultra-normatization, we observe that the judge creates and recreates law on every occasion, with every judgment pronounced. Not in an absolute libertinism, but sufficiently characterized, because in the „creative act of interpretation”, the judge remains sovereign. This is because by pronouncing the law (juris dictio) he brings it from its abstract and hypothetical state into concrete and immediate existence. Thus, we should see interpretation as ‚an act of creation’. Without interpretation, the rule itself would not be applicable, being merely an ontological, not an existential, virtuality. The characterization of a factual or legal situation as being governed by a particular superordinate legal rule necessarily entails not only the determination of that situation, but also the interpretation of that rule.