Abstract

Amended Art. 39 of the Civil Code allows for confirming (retroactively – ex tunc) a legal transaction performed in violation of the principles of joint representation of corporate entities. However, having introduced a sanction of suspended ineffectiveness the legislator failed to specify sufficiently explicitly the scope of application of the amended regulation. Doubts are arouses in particular by a situation whereby the requirements of joint representation have not been kept. These are cases when the performance of a legal transaction did not involve statutorily required joint action of several (in most cases two) representatives of a corporate entity. In the author’s opinion, a declaration of will cannot be in such case attributed to the corporate entity, and therefore it is not possible to confirm a transaction which has never been performed. Another construction may be applied, consisting in remedying representation defects to take effect in the future (ex nunc). To do so, another representative of the corporate person needs to submit a missing declaration. In such a situation, a counterparty of the corporate entity is in a better position than in the case of suspended ineffectiveness. The author believes that until the defects are remedied we at most deal with an offer to conclude an agreement made by the corporate person’s counterparty. Acceptance of such an offer would require a correct declaration of will to be submitted by the corporate entity. What is important is that under certain conditions the counterparty could “withdraw” from the transaction claiming that no consensus has been reached. This decision will be based on the provisions stipulating that after a certain period of time an offer ceases to be binding (Art. 66 § 2 of the Civil Code), while in bilaterally professional relations also the regulation which allows for recalling an offer (Art. 662 of the Civil Code).