Commercial Law for Construction Contractors

Corporate law · Construction

For a construction contractor, the question is not whether contractual tension will arise, but when and at which critical point of the project: at handover, at payment, over additional works, over delays, over variations or over termination.

In construction, a dispute is rarely reduced to an unpaid invoice. What is really at stake is who caused the delay, whether the notices were valid, whether additional works were approved, whether handover was justifiably refused and whether the termination was lawful. This is why good cases are won before the statement of claim is even filed - by reconstructing the contractual and technical chronology.

At Buju, Stanciu & Asociații we treat commercial law for contractors not as a reaction to conflict, but as legal business infrastructure: contractual prevention, correct activation of the pact comisoriu (resolutory clause) and representation in disputes over works contracts. This guide also adds practical tools: the legal workflow, the termination checklist, the evidence pack and the difference between private works and public procurement.

Where the case is really won

In practice, the defence or the claim is built on an unbroken chain - not on isolated interventions. Every weak link (a notice without proof of receipt, a variation approved verbally, a poorly documented handover) shifts the balance of power in the case. Here is the workflow we manage:

The legal workflow: from contract to recovery

Continuity, not isolated interventions - each stage prepares the evidence for the next.

The pact comisoriu stage often decides whether the termination withstands court scrutiny.

Documents to prepare within 48 hours

When a conflict escalates, the first 48 hours matter. Whoever quickly gathers the right documents has a real procedural advantage - whether the case ends up in court, in arbitration or is resolved through negotiation. The minimum pack:

Even if some documents are missing, quickly identifying the gaps is just as useful: it shows where the evidence must be built through other means - witness statements, correspondence, dated photographs.

Checklist: activating the pact comisoriu in a construction contract

Many contractors ask about the pact comisoriu only once the project is already stalled. In reality, it only produces effects if it was properly drafted from the start. The activation steps:

1. Test of the essential obligation. You check whether the unperformed obligation is expressly identified in the clause - a requirement imposed by art. 1553 of the Civil Code, which conditions the effectiveness of the pact.
2. Assessment of the seriousness of the non-performance. Even with a clause in place, you check whether the non-performance is sufficiently serious and culpable, unless the form of the pact (grade III or IV) expressly removes this requirement.
3. Formal notice of default. You prepare the notice, indicating the conditions under which the pact operates, if this was not already done at signing or excluded by the contract.
4. The additional remedy period. You grant a reasonable period, unless the form of the pact expressly excludes it (grades III and IV may remove this requirement).
5. The evidence pack. You gather the documents proving the non-performance and the prior notices (see the 48-hour list above).
6. Notice of termination. You draft the final notice - expressly invoking the clause, the unperformed obligation, the expiry of the period and the effective date; you send it by a method that creates proof of receipt.
7. Subsequent claims. You preserve claims for damages, penalties, retention of guarantees, reimbursement of advances and set-off, mindful of the 3-year limitation period and the jurisdiction/arbitration clause.

Each step adapts to the exact wording of the clause. The grade of the pact comisoriu (I-IV) decides whether formal notice of default and the additional period are still required - or whether termination operates automatically by law:

Pact comisoriu, grade I-IV: what is still mandatory

The higher the degree, the more directly the termination operates.

Indicative; the exact wording of the clause and art. 1553 Cod civil (Civil Code) prevail. Check the degree of your clause before terminating.

Private contracts vs. public procurement (HG 1/2018)

A contractor working on both private and publicly-funded projects must know that the same strategy for termination, claims or litigation does not apply:

Practical conclusion: the termination or claim strategy must be set according to the applicable contractual framework, not assumed from experience on private projects.

How to choose a firm as a construction entrepreneur

On the disputes front, the relevant question is not “who is the biggest firm?”, but “who offers me the best combination of access, strategy, speed and fit for my problem?”. The same selection logic applies to other real-estate projects - for instance, we have written separately about how to choose a lawyer for selling land. The comparison below uses public criteria, not a ranking:

For very large, institutional disputes, large firms are a benchmark. For the mid-size and upper-mid entrepreneur who needs access to seniors, speed and continuity across contract, notification and litigation, a business boutique is often the more effective choice.

How Buju, Stanciu & Asociații works

Our way of working for construction entrepreneurs is built on legal continuity, not isolated interventions. Specifically, we offer:

• Audit and contractual architecture for works contracts, subcontracting, supply, design and related agreements
• Drafting of critical clauses: pact comisoriu (termination clause), penalties, limitation of liability, acceptance, remedies, claims, variations, deadlines
• Strategic notifications and preparation for termination, when non-performance becomes significant
• Representation in litigation on works contracts, claims, termination, payment orders and debt recovery
• The strategic distinction between private works and public procurement under HG 1/2018
• Assistance in the related area of real-estate and urbanism, relevant for construction and development projects

Our practice combines contentious and non-contentious experience, including a publicly reported appeal victory in a technical commercial dispute in the solar energy sector - directly relevant to cases with a high technical component.

Expert insights

The sector remains active. INS data shows an active construction sector in 2026 - more contracts, more commercial relationships and, inevitably, more points of legal friction.

Payment delays hit SMEs hard. The EU Payment Observatory shows that payment delays seriously affect SMEs; in construction, this phenomenon directly impacts the contractor's capacity to sustain resources, materials and subcontractors.

Public procurement has its own rules. The analysis of HG 1/2018 highlights the importance of the claim procedure and the structural imbalances in infrastructure contracts. An effective defence depends on correctly limiting the damages claimed and on a rigorous evidentiary strategy.

Key takeaways

• BSA offers contractors more than courtroom representation: continuity between contract, notification, pact comisoriu and litigation.
• Correctly activating the pact comisoriu follows precise steps, and the degree of the clause (I-IV) changes which steps are mandatory.
• The first 48 hours are essential for gathering evidence: site diary, minutes, variations, notifications, work statements, acceptance records and expert reports.
• The strategy differs fundamentally between private contracts and public procurement under HG 1/2018 - the deadlines and the claim mechanism are not identical.
• Compared to large firms, BSA combines direct access to senior lawyers, the flexibility of a boutique business and a pragmatic, results-oriented approach.

Frequently asked questions