Probatio diabolica, între mit și realitate
Probatio diabolica, between myth and reality

Summary/Abstract: The theoretical problem that we want to subject to analysis is of undeniable practical importance. In the activity of notaries, they face very often the request of some collaborators (lawyers, bank advisors, etc.) to include in the act „probatio diabolica”, a request that seemed to us somehow „exorbitant” in the light of the current civil legislation and, especially, of the legislation regarding real estate publicity.In the notarial practice, especially in the regions where the publicity rules of the real estate transcription-inscription registers have been applied over time (as a real estate publicity system specific to the former Civil Code), it can be found a certain type of proof of the right t o property (or of another real estate right) known as probatio diabolica. This type of proof would require the verification (by the notary) of all previous translative documents, not only of the documents of the immediate transmitter, while the verification stops at the first original manner of acquiring the property. In the land register regions (Transylvania, Bucovina) where the Decree-Law No 115/1938 on the land registers has been applied, this type of proof was encountered extremely rarely (almost non-existent) and this as a result of the legal constitutive effect of the registration in the LR (Land Register). After the appearance of the Law No 7/1996, regarding the cadastral system and real estate publicity, republished, land registers appeared (had to appear) throughout the country, so that the real estate publicity is carried out uniformly, with the same effects throughout the country. The current Civil Code also contributed to this goal, which, by Article 885 and the following, has established the constitutive legal effect of registration in the LR (with the expressly mentioned exceptions), thereby extending the positive experience of the application of the Decree-Law No 115/1938, at the level of the entire country. For incomprehensible reasons, the constitutive legal effect of registration in the LR was suspended by the Law No 71/2011, implementing the Civil Code.Even under the conditions of suspension of the constitutive legal effect of registration in the LR (in this sense, Article 56 of the Law No 71/20111, on the implementation of the Civil Code) there are, in our opinion, serious arguments to restrict drastically the field of application of this truly „diabolical” proof (devil’s proof, as the British say). In the end, who benefits from such proof that makes civil transactions so difficult? Why was probatio diabolica preferred to the legal constitutive effect of registration in the LR? Which were the scientific foundations for which the authors of the suspension of the legal constitutive effect of registration in the LR have simply discredited the work and scientific creation of those who „built” the Civil Code on the basis of the constitutive effect of registration (in this sense, Article 885 and the following of the Civil Code)? We will try, in the following, to formulate an answer to these questions. We will also try to answer the question whether probatio diabolica remained just a myth or is a (sad) reality of our days.

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