More often than not, contracts are signed by accepting a standard contract template proposed by the other party—without a proper legal review or any meaningful negotiation of contractual terms.
As a result, contractual disputes frequently arise, directly disrupting the day-to-day operations of the companies involved.

In practice, I have observed that certain types of contractual clauses tend to recurrently generate conflicts. Below is an overview of the most problematic clauses and what aspects should be carefully reviewed before signing.

1. Penalty clauses for delay or non-performance

Contractual penalty clauses allow parties to predetermine damages resulting from partial or total failure to perform obligations. In such cases, the injured party does not need to prove actual damages—these are already stipulated in the contract.

Legal framework: Articles 1538–1543 of the Civil Code

Common issues:
• disproportionate penalties (e.g. 1% per day with no cap);
• no distinction between delay and total non-performance;
• no clear calculation mechanism for the penalties,
• penalties applied without prior notice.

What to check:
• is there a maximum cap for penalties?
• are penalties proportionate to the value of the obligation?
• is it clear when penalties apply (e.g. delay, refusal, partial breach) and how they are calculated?

2. Unilateral contract modification clauses

As a rule, a validly concluded contract has the force of law between the parties. Still, in some circumstances, parties may agree on unilateral modification rights.

Legal framework: Article 1270 of the Civil Code

Common issues:
• one party can unilaterally modify prices, deadlines, or other essential terms;
• no requirement to notify or get approval from the other party;

What to check:
• is there a justified reason for allowing unilateral changes?
• can both parties invoke the clause equally?
• is there a clear mechanism for applying the clause (e.g., prior notice, time frame)?
• is there a bilateral adjustment mechanism (e.g., inflation, legislative changes)?

3. Jurisdiction and dispute resolution clauses

Parties may agree that any dispute related to the contract will be resolved by courts in a specific jurisdiction or via arbitration.

Legal framework:
• Articles 126 and 1066–1077 of the Civil Procedure Code
• Law no. 134/2010 on arbitration

Common issues:
• jurisdiction is set in a location that benefits only one party;
• arbitration clauses refer to international tribunals with disproportionately high costs;
• vague or incomplete arbitration clauses make enforcement difficult;

What to check:
• is the chosen court in a geographically convenient location (e.g., where your company is based)?
• are you familiar with the applicable arbitration rules and estimated costs?
• if arbitration is chosen, does the clause specify the arbitral tribunal, location, and rules?

4. Unilateral withdrawal and contract termination clauses

The right to withdraw / unilaterally terminate a contract can be granted to one or both parties. For contracts with successive performance, a reasonable notice period is typically required.
If a party fails to perform, the other party may seek termination and potentially damages.

Legal framework: Articles 1276 and 1549–1557 of the Civil Code

Common issues:
• one party can withdraw / terminate the contract without cause or notice;
• withdrawal / termination is allowed only for one party;
• excessive penalties for contract termination;
• no clear rules on handling ongoing obligations (e.g., partial deliveries).

What to check:
• are notice periods for withdrawal / termination clearly defined?
• are penalties proportionate to the contract’s value and potential damages?
• is there a mechanism to settle outstanding obligations?
• do both parties have equal rights to terminate the contract?

5. Force majeure and hardship clauses

Unless otherwise stated, a party is not liable if damages result from force majeure or fortuitous events.
Parties may define which events qualify as force majeure and outline procedures for exemption from liability. In the absence of such provisions, general Civil Code rules apply.
In extreme and unforeseeable circumstances, a contract may also be adapted or terminated due to hardship.

Legal framework:
• Articles 1351–1353 (force majeure), Article 1271 (hardship) of the Civil Code

Common issues:
• vague or overly broad definitions of force majeure;
• no clear mechanism for notification or proof;
• only one party is allowed to waive hardship protection;
• abuse of force majeure to escape liability.

What to check:
• is there a concrete definition of force majeure?
• is the procedure for notification and proof clearly defined?
• is there a clause about waiver of hardship rights?
• are there clear deadlines for suspension or termination?

6. Delivery, deadlines, and acceptance clauses

Unless otherwise agreed, obligations that can be performed simultaneously must be executed that way.
Failure to perform may entitle the other party to:
• enforce performance;
• seek termination or reduce its own obligations;
• use other legal remedies.

Legal framework: Articles 1516–1530 and 1555 of the Civil Code

Common issues:
• no clear delivery timeline or schedule;
• ambiguity regarding acceptance (e.g., tacit vs. explicit);
• missing documents for confirming delivery or services;
• penalties only for delay, not for defective delivery.

What to check:
• is a delivery request needed after the contract is signed?
• are deadlines clearly defined and aligned with delivery?
• are there clear acceptance procedures and objection timeframes?
• are there clauses on warranty, conformity, and notification of defects?

This article does not constitute legal advice and the author cannot be held liable for the opinions expressed herein. We do not assume responsibility for any legal changes made after the publication of this article. If you have any questions regarding this topic, please do not hesitate to contact us.