Perspectives comparatives sur l'accord de préference et sur l'action interrogative en droit civil français et roumain

Abstract

This article tries to dismantle the intricacies related to the notable conceptual differences between the mechanism consecrated by the French legislator in the field of the agreements generating the right of first refusal and the conception of the Romanian legislator, as well as the recent insertion under the French Contracts Law of the new category of interrogative actions at the introduction of which the potential buyer would be entitled against the beneficiary of the right of first refusal. As it will be underlined, under the French regulation, the agreement on the right of first refusal represents a type of pre-contractual arrangements implying a right to buy before or ahead of another; thus, the contract gives the prospective purchaser the right to buy upon specified terms, should the seller decide to sell. As it will be scrutinised in the following sections, although this right resembles an option, there are at least two legal grounds on which the two types of contracts clearly may be distinguished. First, unlike an option agreement, the right of first refusal does not give the pre-emption beneficiary the power to compel an unwilling owner to sell. In contrast, secondly, an option agreement requires, both under the French and the Romanian law, a stipulated time to accept the offer before its caducity interferes. Despite the apparent differences between these two types of contracts, practitioners have had difficulty in drawing the distinction. This article will further explore that distinction in the context of the sale of immovable property, in the context of the introduction of the category of interrogational actions under the French law. First, the inapplicability of the rules pertaining to options to a right of first refusal will be analysed, underlying that the Romanian regulation on the right of first refusal is centred on the mechanism of a suspending conditional provision marking the contractual effects, either implied or expressed in contracts of sale concluded in the pendente conditionae period. Second, some characteristics of the right of first refusal will be considered under the French and the Romanian regulation. Finally, in a comparative key, the legal classifying of the remedies for the violation of the right of first refusal will be examined.