2. What is the quantum of the delay penalties as provided by the law?
There is no legal quantum of the delay penalties. At a given moment there was the Law 76/1996 which stipulated a minimal quantum, but this law was abrogated by the Emergency Ordinance of the Executive no.10/1997 on the diminishing of financial blockage and economic losses. Many entrepreneurs are misled in this respect and there are many contracts that have clauses of the type "in case of delay, penalties provided by the law will be paid". Such a clause has no juridical value. The delay penalties in the carrying out of the contractual obligations are only those negotiated by the parties and specified in the contract.
3. What should be the quantum of the delay penalties?
First, let us clarify the purpose of the delay penalties (of the penal clause). They have a double purpose: on one hand, to compel the parties to carry out in time their contractual obligations and, on the other hand, to cover for the eventual losses underwent by one of the parties because of lack of compliance with the deadlines by the other party. The quantum of the delay penalties must be established in such a way that it ensures the achieving of these purposes.
Let's analyze a little. An incorrect entrepreneur or one who is in a difficult financial position will always weigh the two variants: carrying out his obligation in time or avoiding to meet the deadline even if he has to pay penalties. If he/she notices that it is more profitable for him/her to delay the carrying out of his obligation, in most of the cases he/she will do so.
As a conclusion, in establishing the quantum of the delay penalties you must take into account at least two aspects: the interest rate in the banks and the inflation. The quantum of the delay penalties will have to be bigger that these. Otherwise you risk a situation in which an incorrect partner will take advantage of this fact and to congratulate himself/herself for the cheap credit without any guarantees he/she "obtained" from you.
4. Is the written form for completing a contract mandatory?
No. In order to have a contract, the written form is not mandatory. The law stipulates that the written form is a necessary condition only for the completing of some types of contracts (the contract for the selling of real estate, the company contract).
In business practice it is recommended that a written contract be completed (even if it is not mandatory).
5. Which are the consequences of the authentication of a contract at a notary? What are the advantages?
The main consequence resides in the fact that an authenticated contract represents an executory title. From practical point of view, this means that, in case the contractual obligations are not fulfilled, you may proceed at the forced execution and avoid the long and expensive stage of the lawsuit. This is the advantage.
The disadvantage is the extra costs represented by the notarial taxes.
Businesses are, however, different. Depending on their particular features, the most advantageous decision can be made only after a thorough analysis, together with a specialized jurist, of the risks of the non-execution.
6. What clauses should I put in the contract in order to protect myself against the price risk?
The price risk appears when the payment is made after the signing of the contract. Thus, in case of long-term contracts or in contracts that presuppose successive deliveries, there may be situations in which the price established in the contract is lower or higher than the market price at the time of the payment.
In order to maintain the equilibrium of the contract, the following clauses are used in the international business practice:
7. What clauses should I put in the contract in order to protect myself against the foreign currency risk?
The problem of the foreign currency risk is raised in the moment when, between the point of the signing of the contract and its being carried out, fluctuations of the exchange rate of the currencies appear. In order to cover this risk, in practice, the following clauses are used:
8. What are the specific clauses to be contained by a contract of representation?
There is no rule in what concerns the content of the contract of representation, because the matters that are represented are various. Many times, in practice, the signed contracts superficially define the obligations of the parties. This leads to blockages or even to liability of the representer for breeches/mistakes that belong to the one represented. In order to avoid situations of this kind, when signing the contract you must take into account, besides the data from question 1, at least the following (* the party who represents=principal; the represented party=agent):
9. What clauses should be put in the contract in order to be able to get out of it if the collaboration is not satisfactory?
First of all we must mention that a contract is a willing agreement between two or more parties, each of them having rights and obligations. Getting out of a contract cannot be left up to one party only and to the prejudice of the other. In practice, there are however situations in which terminating a contract is necessary. To this purpose, certain contractual clauses may be stipulated:
We mention that resolutory clauses that allow an elastic way of getting out of the contract represent one of the "delicate" issues that appear in the contractual negotiations. We recommend that, prior to any negotiation, the manager, together with a team of specialists and a specialized business jurist, give some time for an analysis of potential situations that may occur.
10. What are the advantages of a trader if he chooses the solving of the conflicts by the court of commercial arbitration?
The main advantages are:
Therefore, rapidity and quality are the main advantages that determine a trader to choose arbitration for the solving of the conflicts.
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