Frequently Asked Questions Regarding Maintenance Contracts

I have a maintenance contract with an elderly individual, whereby I provide housing in a portion of my residence. May I relocate them to a smaller room if I require the original space?

The permissibility of relocation depends on the specific clauses within the maintenance contract. If the contract explicitly designates the precise room occupied by the maintenance creditor, relocation is not permissible without their consent or a judicial decision.

If the contract stipulates only the provision of housing without specifying a particular room, relocation may be feasible, provided that suitable living space with comparable or superior conditions is ensured. It is strongly recommended to engage in discussions with the creditor and strive for an amicable agreement to avoid potential litigation. A formal addendum to the contract can be executed to reflect any agreed-upon changes.

Frequently Asked Questions - Maintenance Contract

The maintenance contract stipulates the provision of medical care. What occurs if the maintained individual refuses the prescribed medical treatment?

Your obligation is to ensure access to medical care, not to compel the individual to undergo treatment. If the refusal is deemed unjustified and poses a risk to the creditor's health, you may seek a medical expert opinion and, if necessary, a court order authorizing treatment in the best interests of the maintained person. It is crucial to meticulously document all actions taken to demonstrate fulfillment of your contractual obligations.

The individual I maintain requires consistently expensive medication. May I request an adjustment to the consideration (the received asset) stipulated in the contract to account for these unforeseen expenses?

Generally, unilateral adjustment of the contract is not permissible. However, you may discuss the matter with the creditor, and if mutual agreement is reached, an addendum to the contract can be executed to modify the consideration or establish a supplementary contribution from the creditor, if they possess the resources.

If a mutual agreement cannot be reached, a court may order an adjustment of the maintenance obligation or its conversion into a life annuity if a significant disproportion between the obligations and the consideration, arising after the contract's conclusion, is substantiated.

To mitigate such situations in the future, it is advisable to utilize a professional maintenance contract template that expressly defines the scope of obligations related to providing medication and specialized medical services.

I have a maintenance contract with a deceased relative. What happens to the asset I received in exchange for providing maintenance?

The maintenance contract is terminated upon the death of the maintenance creditor. Ownership of the asset you received remains with you (or, where applicable, is automatically transferred to you upon their death), in accordance with the contractual clauses. The deceased relative's heirs have no claim to the asset, as ownership was legally transferred during the maintenance beneficiary's lifetime pursuant to an onerous contract.

The person I am maintaining has become aggressive and is making it impossible for me to continue. Can I request the termination (rescission) of the contract?

Yes, abusive and aggressive behavior on the part of the creditor can constitute valid grounds for termination (rescission) of the maintenance contract due to culpable non-performance of their obligation to allow the debtor to fulfill their contractual duties under reasonable conditions. You must provide evidence of this behavior in court, such as witness testimonies, recordings, or medical-legal certificates.

I concluded a maintenance contract for a specific term. What happens upon the expiration of this term?

The maintenance contract is automatically terminated upon the expiration of the agreed-upon term. You no longer have any obligations to the creditor, nor do they have any rights against you under that contract. If you wish to continue the contractual relationship, you must enter into a new agreement or extend the existing maintenance contract by executing a formal addendum to modify the contract term.

May the maintenance obligation be subcontracted to another party (e.g., a home healthcare agency)?

As a general principle, the maintenance obligation is intuitu personae, meaning it is intrinsically linked to the debtor's individual capacity. Delegating this obligation to a third party without the creditor's consent, or where appropriate, judicial authorization, is not permitted. However, engaging specialized services (e.g., a medical assistant, housekeeper) to assist in fulfilling these obligations is permissible, but the ultimate responsibility remains with the debtor. The specific terms of the contract clauses will ultimately determine the permissible scope of such arrangements; therefore, utilizing a professionally drafted maintenance contract template is strongly advised.

What if I become personally incapable of providing maintenance (e.g., due to a severe illness)?

In the event that the debtor becomes incapable of providing maintenance due to circumstances beyond their control (force majeure), the court may order the conversion of the maintenance obligation into a life annuity or, in extreme cases, the rescission of the maintenance contract. It is crucial to inform the creditor of the situation and attempt to reach an amicable and mutually beneficial resolution.

I received an apartment in exchange for providing maintenance. May I sell it before the death of the person I am maintaining?

If the transfer of ownership has already been legally executed, then yes, you may sell the apartment. However, your maintenance obligation remains in effect and must be fulfilled for the entire agreed-upon duration. The sale of the property does not absolve you of your contractual responsibilities.

If the transfer of ownership has not yet occurred, you may enter into a preliminary sale agreement or other contractual arrangements that facilitate a future transfer (e.g., selling property belonging to another).

What happens if the maintenance creditor relocates to another city? Am I obligated to follow them and continue providing maintenance there?

This depends on the specific clauses within the maintenance contract. If the contract explicitly specifies a designated location for the provision of maintenance, the creditor's relocation does not obligate you to follow them. If the contract is silent on this matter, the general legal principles governing the execution of obligations will apply, taking into consideration the nature of the obligation and the prevailing circumstances. In the event of a dispute, the court will make a determination, considering the equitable aspects of the situation. It is highly advisable to discuss the matter with the creditor and attempt to reach a mutually agreeable solution regarding the location of maintenance provision.

What are the consequences if the maintainer fails to fulfill their obligations under the maintenance contract?

The maintenance beneficiary (the maintained person) may petition the court for the termination (rescission) of the contract. They may also seek damages for any losses incurred due to the maintainer's non-performance. It is advisable to maintain clear documentation of any breaches of the maintenance obligations, such as evidence of missed payments or unfulfilled promises of assistance.

If the maintenance contract is rescinded on these grounds, the asset (property) transferred in exchange for maintenance will, in principle, revert to the ownership of the maintenance beneficiary, who will then be at liberty to enter into a new maintenance contract with an alternative provider.

Is the immediate transfer of assets mandatory upon signing the maintenance contract?

No, the transfer of ownership of the agreed-upon real or movable assets may be contingent upon the fulfillment of the maintenance obligations and may occur at a point subsequent to the signing of the maintenance contract. This provision must be clearly stipulated within the contract template used.

Can the maintained person unilaterally terminate the contract if they no longer require maintenance?

As a general rule, the mere fact that the maintained person no longer requires maintenance is not sufficient grounds for unilateral termination of the contract. The Romanian Civil Code does not explicitly recognize such a circumstance as a basis for rescission. The maintenance contract is a bilateral agreement whereby both parties assume obligations. The debtor is obligated to provide maintenance, and the creditor is implicitly obligated to accept said maintenance, thereby enabling the debtor to fulfill their contractual duties.

At the time of entering into the contract, the parties contemplated a specific set of circumstances and agreed upon certain prestations. A subsequent change in the maintained person's financial circumstances does not automatically lead to the contract's dissolution, unless the parties have explicitly agreed upon such a condition for termination within the contract itself.

If the assets transferred by the maintained person are subject to a mortgage, does this affect the validity of the contract? Ask a lawyer.

The existence of a mortgage on an asset does not preclude the conclusion of a maintenance contract whereby that asset is transferred to the maintenance debtor. A mortgage constitutes a real security right encumbering the asset; it does not represent a prohibition on alienation (inalienability). Consequently, the owner of a mortgaged asset retains the right to dispose of it, including through the transfer of ownership within the framework of a maintenance contract.

Therefore, the maintenance contract remains valid; however, the maintainer must be fully informed about the existing mortgage prior to its execution. By accepting the transfer of a mortgaged asset, the maintenance debtor implicitly assumes the risk of the asset being subject to foreclosure by the mortgage creditor should the obligations secured by the mortgage remain unfulfilled.

Is it mandatory for the specific maintenance services to be detailed precisely within the contract?

It is highly advisable that the maintenance obligations be delineated as comprehensively as possible to prevent potential misunderstandings. The maintenance contract must clearly stipulate the scope of maintenance, specifying the types of support provided (e.g., monetary payments, medical assistance, housing) and the frequency of these prestations.

Can the provider unilaterally terminate the contract?

As a general principle, the maintainer cannot unilaterally terminate the maintenance contract. This is a bilateral agreement that establishes reciprocal obligations for both parties and cannot be dissolved by the unilateral action of either party, except under specific circumstances stipulated by law or agreed upon within the contract.

The principle of pacta sunt servanda (agreements must be kept) dictates that legally concluded contracts are binding upon the contracting parties. Neither party may unilaterally withdraw from the obligations they assumed by executing the contract.

Furthermore, permitting unilateral termination by the maintainer would place the maintenance creditor in a precarious position, depriving them of the support they relied upon at the time of the contract's conclusion.

What is the standing of the maintenance contract with respect to the maintained person's heirs?

The heirs of the maintained person cannot lay claim to the assets transferred to the maintainer if the maintainer has duly fulfilled their contractual obligations. The maintenance contract provides protection to the maintainer against such claims.

Is it possible to include clauses for the adjustment of maintenance obligations?

Yes, a maintenance contract may incorporate clauses that allow for periodic adjustments to the provided services based on factors such as inflation, increases in the cost of living, or other specific circumstances stipulated within the contract.

What happens if the maintained person relocates to a care facility (nursing home)? Am I still obligated to provide maintenance in the initially agreed-upon form?

This depends on the specific clauses of the maintenance contract. If the contract explicitly states that maintenance is to be provided at the maintained person's domicile, relocation to a care facility may necessitate a modification of your obligations. In principle, the maintenance obligation itself does not cease, but its form may be adapted to the new circumstances. It may become necessary to cover the costs of the care facility, either partially or fully, depending on the contractual provisions and the facility's fees.

It is strongly recommended to seek legal counsel if the maintenance contract does not provide a clear resolution for this situation.

I entered into a maintenance contract because the individual in question had no other caregivers. Now, a relative has offered to provide care. Can I request the termination (rescission) of the contract?

The mere offer of care from a relative does not automatically constitute grounds for termination of the maintenance contract. The contract represents a legally binding agreement between you and the maintained person and cannot be unilaterally dissolved by a third party.

If the maintained person consents to the termination and both parties mutually agree to end the contract, this can be achieved through a formal termination agreement.

If the maintained person wishes to reside with the relative but does not consent to terminating the contract, your contractual obligations remain in effect.