Consecinţele procesuale ale cesiunii dreptului litigios
The procedural consequences of the assignment of the disputed right

Summary/Abstract: According to art. 38 NCPC, the capacity of a litigant can be transferred legally or conventionally, as a result of the transfer, under the law, of the rights or legal situations deduced from the judgment. The assignment of the litigious right, completed in compliance with the conditions provided by law, is one of the inter vivos legal acts that determine in the procedural plan the transmission of the procedural quality in favor of a person outside the procedural framework, a person who acquires not only the vocation but even the obligation, according to art. 39 NCPC, to intervene in the process, or which can be introduced in the case at the request of the parties or ex officio. Starting from the premise that the transfer of the right of claim is effective, we must admit that the successor with private title will also be transferred the material right to action, with all the prerogatives it contains. The material right to action remains the most important means of defending the right of claim that is the subject of the transfer, as far as the (already) litigious nature of the latter urgently calls for the transfer to the transferee of the prerogative to sit in court and to exercise the procedural rights intended to ensure the defense of the acquired right. It is true, however, that the dynamic of rights and obligations in the sphere of substantive law turns out to be more “sprint” than that of procedural law, the judge taking note of the transmission of the procedural quality in favor of the successor with private title only if and only after he is convinced that the transmission of rights and correlative obligations operated “really”, namely that the assignment of the disputed right is a valid and effective operation.

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