The battle of forms (contract law) in Romania

National Law
Romanian law requires that the Ts&Cs must be agreed on in order to have them validly included. If the contract expressly references such Ts&Cs, the law implies that the parties have agreed on them.

When both parties to a contract use their own Ts&Cs and fail to reach an agreement with respect to such Ts&Cs, the contract shall be concluded on the grounds of those Ts&Cs agreed upon (if any) as well as on the grounds of those Ts&Cs that have a common substance (on their merits), except the situation when one of the parties expressly states, either before the conclusion of the contract, or afterwards, but immediately, that it does not intend to be a part of such contract.

Please note that unusual clauses comprised within Ts&Cs have a specific regime. The following clauses are considered unusual: regarding liability limitation, the right to unilaterally terminate the contract, stay the contract’s performance, or that read, to the other party’s expense, disqualifications in terms of rights and terms, limiting the party’s rights to rise please, restricting the party’s possibilities to contract to others, tacit contract renewal, applicable law, arbitration clauses or any clauses departing from the rules on court’s jurisdiction. Such clauses become effective only when expressly accepted, in writing, by the other party.

CISG
From a Romanian law perspective, under the CISG, the same situation applies as under national law.

National Law
Under Romanian law, the Knock-Out Rule applies. The rule is that courts would seek evidence on last terms (and forms) consented to by both parties to a contract, and would knock-out any conflicting terms (and forms), by applying the applicable rule of law instead.

CISG
From a Romanian law perspective, under the CISG, the same situation applies as under national law.

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