Articolul 1090 Cod civil – o altă interpretare
Article 1090 of the Civil Code – another interpretation

Summary/Abstract: The new Romanian Civil Code regulates the special available quota of the surviving spouse, in Article 1090, which, in its content, represents a compromise between the two main lines of thought, outlined in the doctrine, regarding the interpretation and application of the previous regulation, contained in Article 939 of the Romanian Civil Code of 1864.Article 1090, specified above, in paragraph (2), establishes the legal fate of the difference between the ordinary available quota and the special available quota of the surviving spouse, providing that this difference belongs, in its entirety, to the descendants, in case the deceased does not dispose of it through liberalities. Contrary to the clear and unmistakable meaning of this legal provision, an opinion emerged in the doctrine, which became of the majority, according to which the difference between the quotas belongs to the descendants not only if the deceased did not dispose of it, but also when the deceased disposed of it through liberalities in favour of the surviving spouse, but the provision is ineffective as a result of exceeding the special available quota.The present study makes a demonstration of the unfounded character of that opinion, by confronting it with the relevant legal provisions and with the results reached by applying, in this case, the unanimously accepted methods of legal interpretation, emphasizing at the same time the fact that from these it follows that the correct interpretation is the one according to which the difference between the quotas is divided between the surviving spouse and descendants according to the legal succession quotas.

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