The delivery agreement is governed by the New Civil Code, in the wording of Articles 1766-1771. Under these provisions, the delivery agreement is the contract through which one party (the supplier) is required to submit ownership of a given quantity of goods and to give them in, at one or more terms after the conclusion of the contract or continuously, or perform certain services at one or more subsequent periods of time or continuously, while the other party (the beneficiary) is obliged to take the goods or services to receive and pay their price.
It is possible that, in the case of the delivery of goods, the supplier undertakes to carry out towards the beneficiary those services that are necessary to deliver the goods.
The delivery agreement is a consensual contract, seeing as the New Civil Code does not provide for any conditions regarding the form or proof of the delivery agreement. In this situation, art. 1178 of the New Civil Code establishes that the contract is concluded by the mere agreement of the parties, unless the law requires a certain formality for its valid conclusion.
The transfer of the proprietary rights is one of the main obligations of the supplier. The supplier is obliged to deliver the beneficiary the goods that represent the object of the delivery agreement. The giveaway of the goods forming the object of the delivery is made in one or more periods of time subsequent to the conclusion of contract. This obligation transforms the delivery contract into a contract transferring the property.
Symmetrically, the beneficiary has the obligation to takeover the goods at the terms and conditions that were set in the contract, through the means of the reception, identifying their quantity and quality.
Another obligation of the beneficiary is the payment of the price of the goods or services specified in the contract or by the law. In the case that during the execution of the contract the statutory regulation regarding price or manner of its determination is modified, the parties shall continue to apply the price or the method of determining the price specified in the contract, provided that the law does not specify otherwise. If the law states that these changes will apply even to current contracts, the parties have the right to terminate the contract within a period of 30 days after the entry into force of the law.
The supplier has the right to subcontract the delivery of goods or services to a third person, except under contracts purely personal or in the case that the contract’s nature does not allow it. The supplier will be liable in terms of quantity and quality of the goods or services that the third party delivers to the client, but will have recourse against them.
Since the obligations arising from the delivery agreement are reciprocal and interdependent, this type of contract is a mutually binding contract.
As it is provided that the provisions relating to the delivery contract will be completed with those regarding the sale contract, in this case the beneficiary can invoke the exception of non-performance, refusing in this way to pay the price as long as they have not delivered the goods. Also, the beneficiary may require performance of the contract in nature, while having the right to repair or replacement.
Lastly, the beneficiary may request termination of the contract of delivery with payment of damages.
The new Civil Code does not establish that aspect of the delivery contract, so that the common rules regarding the termination of legal documents become applicable. This being said, the delivery contract will cease by reaching its term, through unilateral cancellation if there was no contractual term, the common intention of the parties to terminate it, by the material or legal impossibility of delivery or receipt of goods, by the onset of insolvency proceedings on one of the contracting parties etc.
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