Clauzele de atenuare a răspunderii contractuale

Rezumat

The clauses of holding harmless or limitation of liability are included within the conflict area of those two great principles governing the law of civil contracts and, for this reason, they bear the tension generated by the concurrence of the contrary forces with which they act. The principle of the contractual freedom sustains the parties’ competence to set up the rules which will govern their behaviour and the legal consequences of their breach. However, the specific nature of the clauses of mitigating liability makes them disturbing until endangering the rule of the binding force of the contract. For the purpose of conciliation thereof, the system of law imposes barriers of the freedom to stipulate any clauses of mitigation of liability, setting up exceptions from their main validity, either based on restrictions of public order or on their need to preserve the structural balance of the contract, or on moral reasoning. However, their application remains a challenge, since many notions are uncertain, and the appreciation margin belonging to the judge is wide enough.