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Noțiunea de creanță certă, lichidă și exigibilă în procedura insolvenței

Author(s): Anca-Roxana Adam / Language(s): Romanian Issue: II/2014

The insolvency proceedings are the legal proceedings aiming at covering the debts of the insolvent debtor. These proceedings are performed for the creditors and they are regulated by a special law. Creditor is the person which, in an obligation legal relationship, is entitled to claim to another person, called debtor, the execution of a determined service of giving, making or not making something. In the matter of insolvency, creditor is the natural person or legal entity who/which has to the debtor the right to claim the payment of an amount of money and by means of these special proceedings aims at recovering the debt, namely solutio debiti. The source of such obligation may be the contract, the most frequently found in the insolvency legal practice, the unilateral legal deed, business management, unjust enrichment, undue payment, illicit deed as well as any act or fact to which the law connects such obligation arising. For the participation of the creditors of the insolvent debtor in this procedure they must comply with the requirements of the insolvency law which are completed by the stipulations of the civil code and of the civil procedure code, to the extent they are compatible. The insolvency law defines a few terms and expressions that have a certain meaning for the performance of these proceedings. Therefore, related to the notion of creditor, the notion of creditor entitled to request the initiation of the insolvency proceeding and the notion of creditor entitled to participate in the insolvency proceedings were defined. To obtain one of these two qualities, the insolvency law imposes to the creditor the requirement of certain, liquid and exigible debt existing. The notion of certain, liquid and exigible debt is not defined by the insolvency laws, but it is defined by the stipulations of the civil procedure code.

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Considerații privind garanția pentru buna funcționare a bunului vândut conform noului Cod civil român

Author(s): Mirela-Carmen Dobrilă / Language(s): Romanian Issue: II/2014

In addition to the obligation of the seller to ensure the buyer against defects of the sold product, the New Romanian Civil Code regulates the obligation on the seller to be liable for the proper functioning of the sold products in the event of malfunctions within the guarantee period. This paper examines the specific elements of this new institution and highlights the differences between the guarantee for the defects of the sold products and the guarantee for the proper functioning.

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A FEW ASPECTS CONCERNING THE EFFECTS OF ENGAGEMENT ACCORDING TO THE NEW PROVISIONS OF THE ROMANIAN CIVIL CODE

Author(s): Antigona-Camelia Iordana / Language(s): English Issue: III/2015

As a new legal institution, if we refer to its legal regulation in the Romanian Civil Code, the engagement raises numerous controversies related to the legal effects generated by its contracting, particularly to those related to its abusive breaking. This article aims at debating upon the part of the issues that may arise in practice in relation to the abusive breaking of the engagement, compared to the opinions of the French theorists and of the rich French case-law.

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ATTRIBUTION OF LAST NAME TO A CHILD. NATIONAL AND EUROPEAN ASPECTS

Author(s): Oana-Nicoleta Retea / Language(s): English Issue: III/2015

Name of the child is the phrase that defines the attribute of his identification resulted in the name to be assigned at birth registration in the Register of Civil Status. The name is composed of last name and first name. Family name is that part of the name that indicates the connection of the individual with a certain family and designates in its relations with other family members. The attribution of the name can be done, as provided by law, by two processes: acquiring the name and establishing the name. Depending on how the child’s filiation has been established there are three hypotheses of acquiring the surname:the case of the child from marriage,the child out of marriage and the one with unknown parents.

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THE PRECIPUT CLAUSE – ELEMENT OF MODERNITY IN THE NATIONAL LEGISLATION IN FAMILY RELATIONSHIPS

Author(s): Roxana Gabriela Albăstroiu / Language(s): English Issue: III/2015

The preciput clause is regulated for the first time in our legal system with the entry into force of the rules relating to matrimonial regimes provided under the new Civil Code regulation. It appears like a clause that spouses can stipulate in the matrimonial convention, when they choose their matrimonial regime or when the spouses change or modify the existing regime, without being required. It can only be a privilege that spouses understand to have one over another, when death comes to one of them. The matrimonial clause allow the surviving spouse to take a good from community of goods, before inheritance. This clause has created more controversy in the legal literature.

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A COMPARATIVE ANALYSIS OF THE DONATION REVOCATION FOR FAILURE TO EXECUTE THE CHARGES IN FRENCH AND ROMANIAN LEGAL SYSTEMS

Author(s): Codrin Codrea / Language(s): English Issue: III/2015

In the French law, there are provided in the article 953 of the French Civil Code as legal causes for the revocation of donations the donee’s failure to execute the conditions (charges), the ingratitude of the donee and the birth of a child of the donee, causes which were to be found in a similar formulation in the article 829 of the Romanian Civil Code of 1865. Unlike the Romanian Civil Code of 1865 and the French civil law, in the contemporary Romanian civil law there are provided in article 1020 of the Romanian Civil Code only two causes for the revocation of the donation – the ingratitude and the unjustified failure to execute the charges, without the third cause, the revocation for birth of child. In this article the unfulfillment of charges as a cause for donation revocation will be analyzed in both legal systems, French and Romanian, by looking at the conditions required for the failure to execute the charges, the legal action for revocation of the donation for failure to execute the charges and the legal effects the revocation of the donation have.

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THE EXECUTION OF WILL

Author(s): Diana-Geanina Ionaş / Language(s): English Issue: III/2015

The execution of will can be defined as the clause contained in the will according to which the testator shall designate one or more people charged with the execution of the testamentary dispositions. The person responsible for the execution of the will is called the executor. The clause regarding the appointment of an executor, being a mortis causa provision does not take effect immediately, but from the opening of the inheritance. The doctrine is not unanimous in admitting that the legislature expressly qualified he execution of will as a contract of mandate. The execution of will has some similar characteristics as the contract of mandate the fiduciary contract and the universal legacy, but can not be mistaken. We consider that the execution of will is, indeed, a mandate, but a special mandate, a particular one, with specific features which are supplemented by those of common law of the ordinary mandate (art. 2009-2071 Civil Code.) and which subordinates to the regime of managing another’s person asset (art. 792 of the Civil Code.). The general mission of the executor is to ensure the execution of a will and to guarantee the fulfillment of testamentary dispositions, to defend the validity of the will and to take all the necessary conservation measures. The execution of will ceases in the cases provided by art. 1085 of the Civil Code.

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SPECIAL SUCCESSOR RIGHT OF THE SURVIVING SPOUSE ON THE ASSETS OF THE SUCCESSION

Author(s): Ana-Maria Vasile / Language(s): English Issue: III/2015

The surviving spouse is not included in any class of legal inheritors, as he is not a relative of the deceased due to the relations of affection between spouses. The law acknowledges nevertheless to the surviving spouse a right to legal inheritance and grants him/her the vocation of a legal successor regardless of the category of inheritors along with whom one co-inherits; this doesn’t exclude and is not excluded by any category of inheritors.By studying this special right of the surviving spouse, we shall analyse the shares passing to the surviving spouse on the furniture and objects of the household if the spouse co-inherits along with the descendents. By this scientific approach we shall point to the categories of assets included by the legislator, but also to how the doctrine interpreted the notion of “furniture and objects of the household”.This special right of the surviving spouse is of nature of increasing his part of the assets of the succession if the spouse co-inherits along with category II, III and IV inheritors, but also to keep the comfort by maintaining the same living conditions the spouse had alongside the deceased.

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MEDICAL CIVIL LIABILITY - BETWEEN LAWFULNESS AND NORMALITY

Author(s): Liana Popa / Language(s): English Issue: III/2015

The process of acceleration which characterizes recent years of technological advance (we are witnessing the development of increasingly complex technologies , in more and more fields) and the trends of globalization have resonance in the legal space, significantly influencing it. In these coordinates, it is beyond any doubt that, recently, the responsibility has established itself as a central concept, irrespective of the nature of the theoretical perspective from which it is approached. With the modernization of the national legislation and the enforcement of our four new codes also arises the need to orient the research towards issues relating to the implementation of the new law at european level, capturing the national system implications.In order to protect against potential abuses the person receiving medical services, often characterized by indifference, negligence and incompetence, it was necessary to implement more restrictive provisions regarding the liability of the doctor. Therefore, the control and supervision of medical profession - as a liberal profession, implies prosecuting the violations of the rules of professional ethics, medical ethics and the rules of good professional practice which mainly attract special law enforcement.

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CIVIL LIABILITY OF THE NOTARY PUBLIC

Author(s): Ionuț Alexandru Toader / Language(s): English Issue: III/2015

The civil liability of the civil-law notary occurs only if it can be proven that he or she committed an illicit act in a wrongful manner by which a prejudice was caused, while between the illicit act and the caused prejudice there must be a causality relationship.

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ESTABLISHING THE PRINCIPLE OF GOOD FAITH IN THE NEW CIVIL CODE. INFLUENCES IN TERMS OF EUROPEAN CONTRACT LAW

Author(s): Mirela-Carmen Dobrilă / Language(s): English Issue: III/2015

The principle of good faith finds its natural and well worth place in the New Romanian Civil Code, as a novelty, by specific regulation, as an expression of a gained experience in the Romanian law up to this amendment and also by the influences brought by the specific regulation of this principle in other European Civil Codes or by the inevitable influences determined by the coding projects on a European Contract Law level.This paper aims to achieve an analysis of how the principle of good faith is received in the New Romanian Civil Code, as a very complex notion and of major importance to our legal system, which reaffirms its actuality both on nationally and European level. The paper takes into consideration the influences of the way in which the concept of good faith is outlined within the coding projects existing in the European Contract Law, which focus on the harmonization and unification efforts.

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CONSENT OF THE ASSIGNED TO THE ASSIGNMENT OF CONTRACT

Author(s): Diana Nicoleta Deaconu-Dascălu / Language(s): English Issue: III/2015

The consent of the assigned represents a condition imposed by the law so that the cession of the contract would operate from one of the initial contractors towards a third, which thus becomes a party of the contract. The present paper debates the judicial nature of the consent and the role it plays within the tripartite operation which defines the new judicial institution of contract assignment.

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CONSIDERATIONS REGARDING THE EXCEPTION FROM THE OBLIGATION OF THE GOOD FAITH CREDITOR TO RETURN THE UNDUE PAYMENT IN THE OLD AND NEW REGULATION

Author(s): Oana Cristina Niemesch / Language(s): English Issue: III/2015

Avoiding through the express provisions, on the one hand, the controversies regarding the legal grounds for such an action, the law-maker of the Civil Code in force took into account also the advantages that the juridical basis of the legal subrogation in the rights of the paid creditor offers to the payer (solvens): he will benefit from the guarantees of the paid debt to the extent to which these ones exist, and as regards the obligation to return the money, the actual debtor will have to return integrally the payment. On the other hand, if for various reasons the payer does not promote the action based on the legal subrogation in the rights of the paid creditor, he is entitled to his own action founded on the unjust enrichment in which the obligation to return the money is limited by the enrichment of the actual debtor. It can be noticed the modern and evolving character of the action of regulation, through which, starting from the traditional provision of art. 993 para. 2 in the Civil Code of 1864, the law-maker of the current Civil Code used for art. 1342 both the resources of the doctrine in the field and a novel element consisting of the express provision of the grounds of the payer’s action against the actual debtor.

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THE TERMINATION AND RESCISSION OF CONTRACT – GENERAL ASPECTS

Author(s): Petruţa-Elena Ispas / Language(s): English Issue: III/2015

The issue of contract termination and rescission has been a major preocupation throught the scientific judicial literature. We shall endeavour to carry forth the topmost legal angles provisioned for by the dispositions in the current Civil Code, while allowing for brief interludes into the past dispositions on this subject matter. The termination and the rescission of contracts, as two of the most important redress methods for the non-execution of the assumed contractual obligations, are especially consequential both from the theoretical and practical facet. Wherefore we shall as well advance the law court’s decisions on the subject matter.

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AGENCY AGREEMENT IN THE NEW CIVIL CODE

Author(s): Izabela Bratiloveanu / Language(s): English Issue: III/2015

The agency agreement was regulated at community level through the adoption of Directive no. 86/653/CEE regarding the harmonization of the rights content for independent commercial agents from Member States of the European Union. In Romanian law, the agency agreement acquired its own configuration through the adoption of Law no. 509/2002 regarding permanent commercial agents. This material aims to analyze the agency agreement pursuant to provisions of New Civil Code. The Agency Agreement is governed by the special provisions that are foreseen by the Civil Code for this agreement (art. 2072-2095) that is completed with the provisions regarding the commission contract, as well as those regarding the mandate contract with representation (art. 2095 Civil Code).

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THE IMPORTANCE OF LEGAL QUALIFICATION OF THE NATURE AND CHARACTER OF THE LOAN FOR UTILIZATION PURPOSES

Author(s): Manuela Tăbăraş / Language(s): English Issue: III/2015

The legal characters of agreements in general and of the loan agreement for utilization purposes in particular have a special importance considered from multiple legal reasons, such as: from the point of view of the institution of the civil legal act, more precisely, from the point of view of the valid formation of the civil legal act, including here both the meeting of the substance requirements (especially capacity), and the requirements of form of the legal act, up to the formation of the agreement with the legal phases of the agreementual mechanism: the pre-agreement phase, namely the agreementual phase which results from the interpretation of the legal characters of the loan agreement for utilization purposes, elements which constitute a condition for the valid conclusion of the agreement, the qualification elements upon the conclusion of the bailment agreement, which are essential elements necessary for the separation of the bailment agreement from the mere promise to agreement, and also from other agreements that have the same feature, such as: agreement of free deposit, the pledge agreement or the mandate free of charge, and also the risk elements of the agreement, with the specific sanctions that might be invoked in the field of bailment.

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MANAGEMENT AND CONTROL OF FOUNDATIONS

Author(s): Silvia-Elena Găloi (Săuleanu) / Language(s): English Issue: III/2015

Building on the testamentary foundation of Theoprast, 285 a. Chr. which cites the oldest foundations and which was established for the maintenance of a philosophical schools which had been part and founder behold need for people to do good finds there just Plato. Its goal was different than today in that community foundation was useful while today we focus more on the discrimination between people, health, education, and if we’re good to think they are useful for the community, are part of everyday community . Thus we believe that the role of foundations is the desire to help and to bring major changes in society.

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SOCIAL DIALOGUE IN ROMANIA, REQUISITE AND PURPOSE OF THE EXECUTION OF TRADE UNION ACTIVITY

Author(s): Ioan Morariu / Language(s): English Issue: III/2015

The matter of social dialogue has been and continues to be an element of permanent topicality, although not always of maximum interest for doctrine and in the specialized legal practice. The importance of the social dialogue and particularly of negotiation of collective bargaining agreements manifests on multiple levels, so it is of utmost relevant to be structured and correlated with the trade union activity and phenomenon.

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SMALL CLAIMS – MODERNITY AND IMPLICATIONS

Author(s): Diana Ramona Ciocârlan (Hurmuz) / Language(s): English Issue: III/2015

The Romanian legislator used a European Union Law legal instrument as a guide for regulating the special procedure of the small claims.The scope of this procedure, although, at first glance does not seem wide, comes to have implications in most area of the law, mainly the private sector. It happens since parts of the criteria used for assigning a case to the low value category are subject to interpretation.This is not cause for concern, since the current procedure code presents this special procedure as an alternative to the common law procedure, thus recurring to this path not being compulsory for the legal issues that might fall within its scope. It can be easily observed that the legislator sought to devise the rules shaping the special procedure so that it will ensure, as much as possible, the speed of the procedure, which seems to be the ultimate advantage conferred by it.

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PROCEDURAL ASPECTS THAT LED TO THE MODERNIZATION OF THE LEGISLATION REGARDING THE CONCLUSION OF ADMISSION IN PRINCIPLE RULED IN THE PARTITION PROCESS

Author(s): Raluca Lucia Cismaru / Language(s): English Issue: III/2015

The modernization of the national legislation was a necessary measure in the matter of the conclusion of admission in principle of the judicial partition. Thus, under certain conditions, the partition process comprises two stages: the admission in principle stage and the partition itself stage. This way of settling the partition was introduced by article 4 from Law no. 603/1943, regarding the simplification of the procedures of the judicial partition and was subsequently taken by article 673 from the old Code of Civil Procedure, as it was modified and completed through the Government Emergency Ordinance no. 138/2000. This latest legal disposition refered to the conclusion through which the court designated to solve the partition request was going to rule. This conclusion was meant to set up the general frame in which the partition process would take place, before ruling a decision about the core.Currently, the admission in principle is done through a conclusion that has a legal denomination, established by the dispositions of article 984 from the new Code of Civil procedure, and article 985 from the same Code refers to the additional conclusion of the admission in principle. From the dispositions of articles 984-986 of the new Code of Civil Procedure, it results that the new regulation keeps the same regime regarding the compulsoriness of the conclusion of the admission in principle. Thus, if the court has enough evidence, it can proceed to solve the core and rule the final decision.

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