May 2026
Court ruling clarifies that a judgment can replace seller consent but cannot cure fundamental contract validity defects in real estate transactions. Analysis — Adelina Mares, Attorney at Law, Real Estate Law Bucharest.
The High Court of Cassation and Justice has established in a recently published decision that a judgment serving as a sale-purchase contract can substitute the consent of the promisor-seller for refusing to conclude the contract, but not the non-fulfillment of other legal validity conditions* of the prefigured contract. This clarification resolves a frequent legal issue in real estate transactions and establishes clear limits for the application of art. 1.669 of the Civil Code.
The clarification is important in real estate transactions, where, in practice, attempts are sometimes made to obtain the transfer of property rights through court intervention, even when not all legal requirements for the valid conclusion of the sale are met.
Through this solution, the High Court draws an essential limit in the application of art. 1.669 of the Civil Code: the judicial decision can replace the refusal of consent, but cannot transform an invalid contract into a valid one.
The ÎCCJ decision comes to clarify a situation frequently encountered in practice: what happens when the bilateral sale-purchase promise cannot be executed due to the lack of validity conditions, other than the parties' consent? The parties sign a bilateral promise, but subsequently it is found that other essential conditions for the validity of the final contract are missing.
In the case of the ÎCCJ Decision, the fiscal certificate was missing, which should attest the payment of all payment obligations owed to the local budget of the administrative-territorial unit within whose jurisdiction the property to be transferred is fiscally registered.
The mechanism provided by art. 1279 para. (3) Civil Code (pronouncing a judgment that serves as a contract) functions as a judicial remedy through which the promisor's consent to conclude the transfer contract is substituted, but not the non-fulfillment of other conditions provided by law for the validity of the contract. In this regard, the final part of thesis I of art. 1279 Civil Code expressly provides that pronouncing a judgment that serves as a contract can be ordered when "the conditions of the law for its validity are fulfilled".
The legal foundation for substituting consent is found in art. 1.669 para. (1) Civil Code. The text allows the court to pronounce a judgment that serves as a contract when one of the parties unjustifiably refuses to conclude the promised contract. Other validity conditions cannot be substituted through judicial decision for fundamental legal reasons. The parties' capacity, determinable object, licit and moral cause are constitutive elements that must exist at the moment of concluding the contract. The court cannot create these elements through judgment.
The Court's reasoning starts from the nature of validity conditions. Consent can be substituted because unjustified refusal equals a manifestation of will contrary to the assumed obligation. Other conditions relate to the legal existence of the act, not to the parties' will.
The differences in legal nature are evident. Lack of consent can be remedied through court intervention, while lack of capacity, object or licit cause attracts absolute nullity and cannot be remedied.
What practical implications does this decision have for real estate transactions?
The impact on ongoing preliminary contracts is immediate. The party invoking the lack of a validity condition cannot be obliged to conclude the sale contract through judicial decision. Prior verification of all validity conditions is essential.
Necessary changes in legal strategies concern:
Preventive measures therefore include conducting complete due diligence before signing the promise. Verification must address all validity conditions.
Recommendations for drafting preliminary pre-contracts aim at preventing defects:
The optimal moment for consulting a specialized attorney is before any contractual commitment. Early identification of problems can prevent subsequent litigation.
The ÎCCJ decision regarding the limits of consent substitution therefore clarifies an essential aspect: judicial decision can only substitute the unjustified refusal of either party, not the lack of other validity conditions. For professionals in the field and parties involved in transactions, understanding this limit can prevent unrealistic expectations and unnecessary litigation.
A successful real estate transaction begins before signature: with careful verification of validity conditions. Contact us for a personalized analysis and for the peace of mind that documents are in order before signing any commitment.
*I.C.C.J., Civil Section I, decision no. 2152 of December 2, 2025
Current as of 18.05.2026
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