8. Admisibilitatea acțiunii în constatarea nulității contractului de vânzare-cumpărare autentic suplinit prin pronunțarea unei hotărâri judecătorești care ține loc de contract
8. Admissibility of a declaratory action for finding the nullity of the authentic sale-purchase agreement substituted by ruling a court order taking the place of a contract

Summary/Abstract: The plaintiff of X. Municipality acts as third party in the previous dispute, however, in this dispute it is no longer possible to resume the judicial review of the issues related to the fulfilment or non fulfilment of the legal conditions to rule on a judgment taking the place of an authentic deed, already settled by the previous final court order, that opposes its binding effects in this dispute. The review in this dispute of the manner in which the conditions provided for by law were observed for the validation of a synallagmatic preliminary sale agreement of an estate, would implicitly involve a control of the lawfulness and merits of the civil judgment no. 3693/2013 delivered in the casefile no. .../2011, which cannot be accepted, as a court order cannot be subjected to the judicial control by a subsequent statement of claim, but only by exercising remedies provided for by law. As regards the legal regime of the court order taking the place of an authentic sale purchase agreement, certain clarifications are required. This type of court orders only find the existence of an agreement of the parties and gives it a form of authentic deed by ruling on the judgment which takes the place of authentic deed, it being a situation similar to that in which the completion of the legal proceedings is made by a transaction and at the time when the resumption of the dispute is not prevented de exceptio rei iudicatae, but de exceptio litis per transactionem finitae, namely by the effect of the agreement recorded in the court order. Therefore, the effects of these judgments are mainly identical with those that the sale purchase agreement would have produced, if it had been validly concluded, namely, the change of the contractual obligation to provide works (services), assumed by a promise, into a contractual obligation, respectively that of transferring the ownership right over the promised asset. The constituent effect of rights of the judgment taking the place of a sale purchase agreement shall not be produced by the judge’s will, but by the parties’ will, expressed in the preliminary sale agreement. The court only intervenes to examine the elements of the parties’ agreement and only insofar as it finds that one of them, in violation of its commitments given, refuses to conclude the contract in an authentic form, rules on the judgment which shall fill this requirement. Given that the parties’ agreement is null and void, the party in the favor of which the judgment was delivered cannot invoke as an exclusive ownership right the court order by which the agreement of the adverse party was filled, since this court order cannot have an effect independently of the parties’ agreement based on which it was delivered.

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