Natura juridică şi efectele renunţării la compensaţia legală
Legal nature and effects of the waiver of legal compensation

Summary/Abstract: A way of extinguishing obligations, the legal compensation was rightly also considered as a creditor’s guarantee against the debtor’s risk of insolvency. While maintaining this function of compensation, the new Civil Code also contains the previously inexistent provision regarding the possibility for any creditor-debtor to waive compensation. The issue raised in practice is whether the waiving of compensation could change the paradigm in which legal compensation has been understood and applied for almost 150 years. Hence, multiple questions. What is the object of the waiver and what are the effects of waiving compensation, as an unilateral act? Is it fair that the waiver of compensation by a creditor-debtor should extinguishes the other creditor’s-debtor’s right to claim compensation? The analysis of the new regulation of the waiver of compensation, in terms of the legal logic and equity, leads to the conclusion that the waiver of compensation by only one creditor-debtor can only extinguish their right to claim compensation, and not the legal effect itself of the legal compensation on the mutual claims.

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