Proceedings of the 8th World Conference on Research in Social Sciences
Year: 2025
DOI:
[PDF]
Analysis of the Exception of Non-performance of Contract as a Background Defense in Civil Litigation
Maria Calafus
ABSTRACT:
In civil proceedings, the exception of non-performance of the contract seeks the dismissal of the action brought by the contractual partner in court and the person raising the plea does not contest the claim of his partner but, on the contrary, this defense is an acknowledgment of that claim and, at the same time, an implicit confirmation of the debtor’s decision to perform his own obligations when the co-contractor will also perform his commitments. The exception of non-enforceability is thus perceived as a substantive defense. One argument in this regard is that it is an institution of substantive law in its own right, being a means of defense available to the party who is required to perform the obligations arising from the conclusion of a contract of a contract of a non-negotiable nature by the party who has failed to perform his own obligations. Thus, reliance on the exception of non-performance of the contract calls into question the very subjective right of the plaintiff, depriving it of any foundation in law. The party relying on the exception of non-performance of the contract cannot be required to pay damages for delay in performance of the obligations owed to the other contracting party, since it is not a question of late performance of contractual obligations but of the suspension of performance of those obligations in a legitimate manner.
keywords: civil action, claim, contractual obligations, debtor, promissory contract