THE POSITION OF THE THIRD-PARTY BENEFICIARY IN CONTRACTS OF THE KIND

Abstract

In the context of existence or non-existence of principles of the contract’s effects, it is indisputable the principle of the relativity of the legal act, as a branch principle. This principle is proved by the following statements: the volitional nature of the legal act that requires that nobody can become a debtor or a creditor without his will; the failure to obey this principle will harm to the liberty of the person. Another subject examined in this study is the exceptional character of the contract for benefit of third party, a feature that is denied by a part of doctrinaires. Our opinion is that once the exceptional character is directly regulated by the civil code we no longer can deny it if the third party gets certain rights. Being a novation of the Civil Code of RM, according to article 721 “The parties to a contract may agree that the debtor (promisor) provides performance not to the creditor (stipulator), but to a third party (beneficiary), specified or not specified in the contract, that obtains the right to directly claim performance to his own benefit.” The aim of the present study is to investigate the theoretical and practical aspects of the contract for the benefit of third party, using the methods of comparative analysis. One of the problems that may appear regarding the contract for benefit of a third party and which we want to examine is the place of the third party, the necessity of acceptance by the third party of the clause concerning him when concluding the contract, the validity of the contract in case the third party doesn't accept the granted benefit. By essence, it is considered that the consent of the beneficiary is not a condition of existence of the duty for the other part, but an effectivity condition. [Liviu Pop, Ionuț-Florin Popa, Stelian Ioan Vidu, 2015,p. 158] Not only that: if, before the acceptance, the right was revocable, on the discretion of the stipulator, after acceptance it becomes irrevocable and the obligation of the promisor is actual. [Pof. Univ. Dr. Ion Deleanu, 2002, pag. 52] Of course the right arised from the stipulation cannot be imposed to the beneficiary without his will. That's why, he can accept but also can renounce the right in his favor. Through this study it has been realized an analysis from the doctrinal point of view as well as with reference to the legal norms established by the legislation of the Republic of Moldova and in a comparative way with the legislations of other states.