Professional Documents
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The Civil Law is the branch of the law that establishes some patrimonial relations in
which the parties are subjects equal in rights and some non-patrimonial relations connected to
a persons individuality.
The patrimonial relations deal with the real relations, such as the right to property,
and with the contractual relations.
The non-patrimonial relations contain the relations regarding the integrity of the
subjects of Civil Law (e.g. the right to reputation, life, freedom). The non-patrimonial
relations also contain the relations regarding identification (e.g. the right to a name, to a
residence). The non-patrimonial relations contain the relations generated by the intellectual
relations (copyright)
All these patrimonial and non-patrimonial relations are regarded by the civil legal
rules. They are therefore known as the Civil Juridical Relations.
The Civil Relationship is a social relation established by norms of the Civil Law. The
social relationships become juridical relationships through the action of legal rules.
According to this definition we may say that the civil juridical relation has the
characteristics:
The civil relation always has a social character. It is a connection between persons. A
civil juridical relation is always a social one even if it is not obvious sometimes. Even
the civil juridical relation that arises in case of the right of property is a connection
between the owner and the rest of the society. All the other persons, the rest of society,
have the general duty to do nothing in order to disturb the exercising of the right.
The juridical relation is always regulated by legal rules. Therefore there are social
rules which are not juridical relations in the same time. Not all social relations are
interesting for the state.
In order to crate a juridical relation there have to exist a legal fact or a legal act which
are known as the sources of juridical relations.
The juridical acts, as a source of law, are expressions of somebodys will.
They are made with the specific purpose to create, to modify, or to end a
juridical relation (e.g. contracts). The juridical acts have the power of law
between the parties that concluded them.
The legal facts can be divided according to the human will involved, into:
1. Natural facts. In case of natural facts we have some events from nature
or society whose creation or existence does not depend on the human
will. They are completely independent from the human will (birth, acts
of God caz de forta majora).
2. Human actions. Human actions are those which depend on the human
will. The intention of the person is not to produce the legal effect, in
such a case we dont have a juridical law.
If all these conditions are concluded at the same time and fulfilled at the same time a
social relationship becomes a juridical relationship between persons, the so called parties of
the civil juridical relation. They have the position of equality.
Each juridical relation has 3 elements of structure: the subjects of the juridical
relation, the content of the juridical relation, and the object of the juridical relation
The natural persons. Any human being may be regarded as a subject of law.
He/she may have rights and obligations. This feature may be put into light by a specific
concept, the concept of legal capacity. The legal capacity has 2 elements:
1. The abstract capacity. It is the persons faculty or aptitude to have rights and
obligations.
2. The concrete capacity. It is the persons ability to actually exercise the rights and to
assume the obligations. It covers the aptitude to conclude civil contracts.
The abstract capacity of a natural person has the following features:
must be made by their legal representatives. There is, nevertheless, a certain category
of acts which can be concluded by the minor itself, without his guardian/parent. It is
the category of acts of a day to day nature.
2. The period of restricted concrete capacity. From 14 to 18 years minors can
conclude some juridical acts by themselves. They need the assistance of their parents
in order to conclude other acts. There are a number of acts which cannot be ever
concluded by minors. We may have 3 categories of acts:
acts that can be concluded by the minor himself. Acts of day to day nature
acts which are concluded in order to manage the minors property. The minor can also
conclude by himself an employment contract after the age of 16. from 15 to 16 he/she
will need a preliminary consent.
acts that can be concluded only with the assistance of a parent/guardian.
The minor can conclude in these circumstances sale contracts. There is a distinction
between the representation of a minor after 14 and the assistance of a minor. In case of
representation the minors juridical will is substituted by the parents will. It means
that the minor under 14 doesnt sign the contract at all. In case of a minor between 14
and 18, in case of assistance the minors will is only completed by the parents will. it
means that the minor has to sign the contract.
acts that cannot be concluded by minors. Minors cannot conclude, not even
with the assistance of parents, donations and he/she cannot guarantee for others
obligations.
3. The period of fully concrete capacity. After 18 a person has fully concrete capacity.
By exception a woman can marry from the age of 16, obtaining by this way fully
concrete capacity(e.g. a mentally disturbed person who cannot understand the nature
of an agreement is considered as having no concrete capacity and his affairs are
handled by a court appointed guardian.
Each specific civil relationship is established between its parties, subjects of law. To
identify the parties of a juridical relation is to distinguish them one from another and from
other persons participating in other relations. The identification of a natural person can be
achieved through his identification of attributes (e.g. the name, residence, civil status). From a
legal point of view these attributes are personal and not patrimonial rights of any person, of
any natural person.
The identification of a natural person has the following juridical characteristics:
First they are absolute rights, impersonal in front of anybody (erga omnes). Therefore
to these rights it corresponds a general obligation of all other persons to obtain from
any non-observance of the rights.
They are strictly related to the person who holds them. They are personal. As a
consequence they cannot be exercised by representation.
This kind of rights cant be evaluated in money. They dont belong to the patrimony of
a natural person
As a consequence of these characteristics any person can claim in front of a judge the
stopping of the fact which has damaged one of his non-patrimonial rights. Those who suffered
a damage of such a right may also claim the court to oblige the author of an unlawful action to
fulfill any necessary measures considered by the court for reestablishing that right. If the
author of the unlawful action does not fulfill in due time, established by the court, these facts,
meant to reestablish the damaged right, the court may oblige him to pay in the states interest
a fine for each delay (dauna cominatorie).
The distinction between these kinds of legal persons is made regardless of the nature
of the capital. It doesnt matter if the capital belongs to the state or to the particular private
persons. The important thing, the criteria is the nature of the rules that regulate each kind of
legal person. Therefore a company whose shareholder is the state is still a private legal person
because it functions according to private rules. Political parties are legal persons of the public
area.
One of the public legal persons is the state itself. It is considered a legal person
whenever it participates in its own name as a subject of law in juridical relations. Usually the
state participates as a legal person on the international level within public international
economic relations. But sometimes the state may be part of the private juridical relation. (e.g.
It may participate to a juridical relation as a debtor in order to repair the damages caused by
an illegal arrest or judgment; The state may participate in a juridical relation of property, the
state may be an owner. The state may participate even to a relation of inheritance; it may
collect all the vacant legacies, any fortune with no successor.)
The legal persons of private law may be classified according to the purpose mentioned
in the constitutive act. The purpose may be:
Patrimonial commercial companies
Non-patrimonial associations, foundations, labor unions, church.
Even a legal person constituted in a non-patrimonial goal for a non-patrimonial person
has a patrimony and may develop some economical activities. The profit it gains is never
returned to the members. It is always used for the non-patrimonial goal (cultural, artistic, and
political).
1. Debt rights. The active party is the creditor and he can pretend to the other party
(debtor) to give, to do, or not to do. Both subjects are known from the beginning.
2. Real rights. Are those rights according to which their owners can exercise the
attributes to the goods without the intervention of another person. In case of
patrimonial rights with an economic content. They can be evaluated in money.
The non-patrimonial rights are those with no economic content (e.g. right to life,
copyright).
In case of a real right only the active subject is determined. We only know the active
side. In the passive side we include the whole society, all members of the society. Thy will
have the general obligation to do nothing in order to disturb the real right. Real rights are
rights connected to goods.
In case of the debt right we know both subjects. We know the active subject (the
creditor), and the passive subject is also determined from the beginning, from the moment
when the contract has been concluded.
There are 3 elements of distinction:
Only in case of the debt right the passive subject is known from the beginning
Real rights are limited in number. They are expressly provided and regulated by the
law. The debt rights are unlimited. They are at the simple imagination of the parties.
They may create any contract according to their interest.
In case of a debt right the corresponding obligation may be to give, to do or not to do.
In case of a real right the corresponding obligation is always not to do.
The first kinds of obligations to give, to do are positive obligations, they consist of
actions. The last one, not to do, is a negative obligation. It consists in an abstention, in
refraining from doing something. It may correspond, to a debt right and real right. Its content
is different in each case. The negative obligation which is corresponding to a debt right has a
precise content. It belongs to a certain person. The negative obligation which corresponds to a
real right has an undetermined content and it belongs to an undetermined person. By not to do
a person refrains from doing an action that is not forbidden by the law (e.g. the debtor can sell
by concluding the contract though his own will has limited his right).
The most important distinction between the debt rights and the real rights is that the
debt rights are relative rights, while the real rights and the non-patrimonial rights are
absolute rights.
The relative right. According to it the definite active subject (the creditor) has the
possibility to pretend from the definite passive subject a certain behavior. A relative right is
only opposable to a definite person (it is opposable erga certam personam).
The absolute rights. They are civil rights according to which the established owner
has the possibility to exercise it alone and all the other persons have the general and negative
obligation not to do something that could jeopardize the owners right. The juridical relation
that contains an absolute right is established between the owner, as definite active subject and
all the other persons as passive subjects. We may say that and absolute right is opposable to
all persons (opposable erga omnes). It means that everybody has to observe the owners
absolute right. The real rights and all the non-patrimonial rights are very similar
E.g.: Property right and the right to a name. They can be exercised in front of
everybody. In both cases we have an active subject who exercises the right alone. Both are
opposable erga omnes.
3. It is indivisible. Even if the debt has been partially paid, the mortgage over the whole
estate continues to exist until the final payment of the debt.
4. It has an estate character. Unlike the pledge, the object of a mortgage can only be a
real estate. In case of a pledge the objects may be goods. The debtor has to be the
owner of the real estate in the moment of conclusion of the contract. But the mortgage
has not as consequence the dispossession of the debtor. The debtor will be able to
exercise all his prerogatives resulting from his property rights. He also has the right to
alienate the real estate. As a consequence the auction of the real estate is possible even
if it is now under somebody elses property.
In conclusion:
The active subject has 2 rights:
A debt right - opposable only to the debtor the right to pretend the payment
A real right opposable to any person who would be the owner of the estate at the
moment of the settling day. The real right is accessory; it depends on the debt right. If
the debtor will make the payment, the mortgages will com to an end.
Buyer
According to this contract the Original Owner delivers the goods in the hands of the
Temporary Holder. The other party assures the obligation to return the goods after a certain
period of time. Instead of fulfilling the obligation the temporary holder sells the goods to a
third party, as if they were the owner.
If the buyer is in good faith (has no idea about the fact that the seller is not the real
owner), then he (the buyer) becomes the owner of the goods.
The Original Owner can only claim damages from the Temporary Holder, on
grounds of the contract concluded between them.
1. This rule is not applicable in case of immovable goods.
2. This rule is not applicable whenever the buyer has no good faith (knows that the
other is just a temporary holder).
3. The rule is not applicable whenever the goods were lost by their owner or stolen
from him. It is only applicable in case of a contract between the Original Owner
and the Temporary Holder.
Following the regime of legal circulations there are:
Goods on civil circuit. Are all those goods that can be objects of civil juridical acts.
Some of them can be sold only with observance of some conditions (e.g.:gems, toxic
substances). However all of them may be considered as being in civil circuit
Goods off civil circuit. Are those goods which cannot be objects of civil juridical acts
(e.g.: goods belonging to the state, constituting the object of public property).
There are as well:
Nungible goods. Are interchangeable one with another. They can be replaced by equal
quantities of the same quality (e.g.: grain, coffee, money)
Non-fungible goods. They have a specific individual value and cannot be replaced
with a similar thing
According to the way used to determine them, there are:
Goods individually identified. Are those goods individualized by specific features
and characteristics. E.g. a certain car individualized by its license plate.
Goods generally identified. Are those goods individualized by features corresponding
to a class or category they belong to. The individualization of such goods is only
possible by counting or measuring.
This distinction is important first of all because it determines the moment of the
transfer of the property right from the seller to the buyer. In case of individually identified
goods, the property right is transferred at the very moment when the agreement of the parties
was achieved. Therefore the buyer becomes the owner from the moment of the conclusion of
the contract, even if the goods themselves were not transferred yet.
In case of generally identified goods, the property right is transferred only at the
moment the foods are individualized by measuring or counting. This moment is important to
know because of the rule res ferit domino (the goods are destroyed for the owner). If the
goods are accidentally destroyed, the only person who has to suffer the loss is the owner.
Therefore in case of generally identified goods, if they are destroyed/vanished between the
moment of conclusion of the contract and the moment where the goods are delivered to the
buyer, the person who has to suffer their loss is till the seller. The seller will have no right to
the price of the goods. In order to fulfill the contracts the seller has to replace the vanished
goods with others.