THEORETICAL ASPECTS REGARDING THE OBLIGATION AS PROVIDED BY THE ROMANIAN LEGISLATION AND THE DOCTRINE

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1 THEORETICAL ASPECTS REGARDING THE OBLIGATION AS PROVIDED BY THE ROMANIAN LEGISLATION AND THE DOCTRINE Bogdan NAZAT * Abstract: Taking into consideration the latest amendments of the Romanian civil legislation performed through the Civil code of 2009, as further amended, I consider useful to provide the lecturers with a theoretical overview over one of the most important institution in our legal environment, i.e. the obligation. The analyse will start with an introduction comprising the definition of the obligation as provided by the Civil code aand the doctrina, will continue with the structure of the obligation and, further, will offer an overview of its sources, identifying, inter alia, the articles in the Civil code where such sources are regulated (e.g. contract, law). In the end, the paper will provide a doctrinaire classification of the obligation, outlining the main categories of the obligations. Keywords: obligation, agreement, unilateral, civil, Civil code, legislation, bilateral, creditor, debtor. I. INTRODUCTION. THE DEFINITION OF THE OBLIGATION. LEGAL REGULATION As regards the scope of this paper, it is undoubted that, even if the current legislation represents an evolution as regards the obligation, the doctrine and the jurisprudence, especially the ones before the Civil code of 2009, are still actual. Therefore, the scope of this paper is to envisage the general aspects related to the obligation, as such are revealed, mainly, by the legislation and the legal writers. At the beginning, mentions hould be made that the obligation is an old institution, a definition being provided also by the Institutions of Justinian. Therefore, it was stated that the obligation is a legal relationship, under which we are compelled to fulfil a duty according to the law of our borough (lat. obligatio est iuris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis iura) 1. In the current regulation, the obligation is defined under Article 1164 of the Civil code 2 as being that lawful relationship, whereby the debtor is bound to fulfil a duty towards the creditor, and the latter is entitled to obtain the fulfillmenty of due duty. Until the current Civil code becomes effective, given that the former regulation (i.e. Romanian Civil code of 1864) did not provide a definition of the obligation, this task was assumed by the legal writers. Thus, obligation was defined, lato sensu, as being that legal relationship whereby the active subject, called creditor, has the right to request from the passive subject, called debtor who has the corresponding duty to give, to do or to not do something, subject to the sanction of state compulsion, unless the action is performed willingly 3. Moreover, after the new legislation entered into force, the legal writers offered doctrinaire definition of the obligation, being stated that the civil obligation is the legal relationship whereby a party, called creditor, has the right to request from the other party, called debtor, to fulfil the duty or duties they have, subject to the sanction of state compulsion 4. Based on the above mentioned, we may say that obligation is a private legal relationship involving the existence of two natural or legal persons: the creditor, standing for the active component of the obligation (holding a right to claim) and the debtor and its duty related to the creditor s right. Such duty of the debtor represents the passive component of the obligation. Nowadays, it was stated 5 that the term obligation has three meanings. Thus, besides the lato sensu meaning aforementioned, stricto sensu, the obligation is considered as being that duty of the passive subject, the debtor. The third meaning of the term obligation is that the obligation represents the document itself, incorporating the claim right and the Assistant Lecturer, PhD Candidate, Faculty of Law, Nicolae Titulescu University of Bucharest ( bogdan.nazat@sinescunazat.ro; bogdan.nazat@gmail.com). 1 Alin-Adrian Moise, The New Civil Code. Comments per articles. Art , Coordinators Fl. A. Baias, E. Chelaru, R. Constantinovici, I. Macovei, C.H. Beck Publishing, 2012, Bucharest, p. 1215; 2 The Law no. 287/2009 on the Civil Code, published in the Official Gazette of Romania No. 505/2011; 3 C. Stătescu, C. Bîrsan, Civil Law.General Theory of Obligations, ninth edition, revised and supplemented, Hamangiu Publishing, 2008, Bucharest, p. 1; 4 Liviu Pop, Ionuț-Florin Popa, Stelian Ioan Vidu, Basic Civil Law Treatise. Obligations Pursuant to the New Civil Code, Universul Juridic Publishing, 2012, Bucharest, p. 12; 5 Coordinator Marilena Uliescu, The new Civil code. Studies and comments. IIIrd Volume. Ist Part. Vth Book. About obligations (Art ), Universul Juridic Publishing, Bucharest, 2014, p. 15;

2 Bogdan NAZAT 261 related obligation, namely the obligation to pay the said claim. Taking into consideration the above mentioned, this paper envisaged to offer the reader a concise and clear overview of the institution by analysing the legal provisions of the Civil code, with some references to the existent legal writings. II. THE STRUCTURE OF THE OBLIGATION Representing a legal relationship, the obligation has three principal elements in its structure: (i) the subjects, (ii) the content and (iii) the object. In our doctrine, there are opinions based on which the structure comprises also a forth element, i.e. the sanction, which will be also analysed in this paper. In its current form, Article 1164 Civil code does not refer to this fourth element and, based on this, some legal writers considered that this was due to the existence of that category of obligations known as imperfect civil (or natural) obligations. This category of obligation is characterized by the fact that the creditor is not able to obtain the performance of its obligation by the means of execution, even if the payment is still due The subjects of the obligation. Called also the parties of the obligational relationship, the subjects may be any natural or legal persons, provided that they act in accordance with the legal provisions, as well as the state when taking part directly in civil legal relationships. Unlike in the case of bilateral obligations, in case of unilateral obligations, a party is solely a creditor and the other party is solely a debtor. For example, in the case of the donation agreement free of burdens, the granter is the debtor, while the grantee is the creditor. 2. The content of the obligation. The content of the obligational relationship consists of the claim right of the creditor and the obligation related to this right encumbering to the debtor. In other words, the creditor s right consists in the right to request from the debtor the fulfillment of a certain duty, which may consist of giving, doing or not doing something, while the debtor s obligation consists in the duty to execute the action to which is bound (e.g. handing over some property, paying an amount of money, delivering a service, executing some work, etc.). As regards their patrimony, the creditor s claim right is among its active side of the patrimony, while the debtor s duty is in the passive side of its patrimony, hereby resulting the patrimonial content of the obligation. 3. The object of the obligation. The object of the obligational relationship consists of the action or inaction the debtor is obliged to and that the creditor may request. Therefore, the object of the obligation may consist either of a positive action (to give or to do something) or of an inaction, a negative action (not to do something the debtor would have been entitled to in the absence of the assumed obligation). Starting from the above mentioned, it is important to make the difference between the three major categories of obligations existing in our legislation: to give, to do and not to do something. The obligation to give means the obligation of create or transfer a real right 7, such as, for example, the seller s obligation to transfer to the buyer the property right. We may say that the obligations to do are those positive actions that may not be considered obligations to give (the obligation to deliver a service, the obligation to pay the rent, the obligation to execute a work, the lessor s obligation to make available to the lessee the property that is the object of the lease agreement 8 etc.). Therefore, the differences between the two aforementioned categories revealed the meanings of each of them. The obligation not to do consists of the debtor abstaining from doing something that might have done, unless binding to abstain. We should mention that the obligation not to do does not refer to a negative general obligation, such as, for instance, the obligation of the undetermined passive subjects of the property right, who have the obligation not to do anything that might affect the owner s right 9. Therefore, we may say that there is an obligation not to do something when, within an obligation, the debtor undertakes to abstain from exercising a right that, normally, it was entitled to exercise. For example, there is an obligation not to do when the owner of a land undertakes before their neighbor not to erect a construction with a certain use, waiving thus to exercise a power they had in their capacity of owner. 4. The sanction of the obligation. As previously mentioned, the sanction of the obligation is considered by some authors as the fourth element of the obligation. The sanction arises usually when the debtor does not fulfill willingly its obligation and it consists in the creditor s right to use various legal means for settling its claim, such as: a) enforcement procedure commenced against the debtor, regulated by the Romanian Civil Procedure 6 Alin-Adrian Moise, op. cit., p. 1216; 7 Real rights are listed under Article 551 of the Civil code, and are the following: the property right, the superficies right, the right of usufruct, the usage right, the habitation right, the easement, the administration right, the concession right, the right of use, real security rights, other rights the law considers as being of such nature; 8 Art Civil Code sets forth among the main obligations of the lessor the obligation to hand over to the lessee the property leased ; 9 Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Civil Law Course. Main Real Rights. Second Edition, revised and supplemented, Hamangiu Publishing, 2013, Bucharest, p. 21;

3 262 Challenges of the Knowledge Society. Private Law Code and which may be direct enforcement and indirect enforcement. b) legal action, regulated also by the Romanian Civil Procedure Code, whereby the creditor requests from the Court having jurisdiction to oblige the debtor to perform the due obligation. c) default interest, namely that compensation in money owed by the debtor for remedying the damage caused to the creditor by the failure to fulfill the obligation in due time, which may be cumulated with the fulfillment of the obligation in kind or with compensatory damages 10. d) periodic penalties and fines. These are amounts of money that the debtor is obliged to pay, under a Court judgment, to the creditor, as far as periodic penalties are concerned, or to the state budget, in case of the fines, as a sanction for fulfilling the obligation late. A major difference between the two is that, as regards periodic penalties, these are subject to reimbursement after the obligation is fulfilled by the debtor, while the fines may not be reimbursed, being considered revenues to the state budget. If we shortly analysed the methods available for the creditor to obtain the fulfilment of its obligation, it is our view that is important to discuss also about the legal means offered by the legislation to the debtor in order to perform the payment or to defend its rights. a) the notification of default of the creditor. Thus, pursuant to Article 1510 of the Civil code, the creditor may be notified of default if refusing without grounds the payment duly offered or refusing to perform the preliminary acts without which the debtor is not able to fulfill the obligation. If the creditor is notified of default, it take over the risk of impossibility of fulfillment of the obligation, and the debtor is not bound to return the proceeds obtained after the notice of default. Moreover, the obligor is bound to remedy the damages caused by delay and to cover the expenses on the preservation of the property owed (Article 1511 of the Civil code). b) consignment of the property or its sale at public auction. A prerogative set forth under Article 1512 of the Civil code, this arises if the obligation of the debtor consists of handing over a property and such obligation may not be fulfilled because of the ungrounded refusal of the creditor. In such case, the debtor may consign the property at the expense and risk of the creditor, thus being discharged of its obligation. However, if the nature of the property makes consignment impossible, if the property is perishable or its storage involves maintenance costs or considerable expenses, the debtor may start the public sale of the property and may record the price, notifying in advance the obligor and obtaining the approval of the court of law [Article 1514 par. (1) Civil code]. Further, if the property is listed on the stock exchange or on another regulated market, if its current price or value is too low by comparison with the expenses incurred upon public sale, the court may approve the sale of the property without the notification of the creditor [Article 1514 par. (2) Civil code]. III. THE SOURCES OF THE OBLIGATIONS The sources of obligations are listed under Article 1165 of the Civil code, which sets forth that the obligations arise from an agreement, a unilateral act, management of other person s interests, unjust enrichment, undue fulfillment, delict, as well as any other act or fact that the law connects with the creation of an obligation. a) The agreement is defined under Article 1166 of the Civil code, as the agreement of will between two or several persons in the intent of creating, changing or terminating a legal relationship. b) The unilateral civil legal act is the result of the will of one party (art , Civil code). c) Negotiorum gestio (called also management of other person s interests) is basically the operation whereby a person, called negotiorum gestor, through its intentional and unilateral action, interferes and does material or legal acts in the interest of another person, called principal, without being empowered by the latter 11. Negotiorum gestio is regulated by the Civil code, art d) Unjust enrichment (art Civil Code) may be defined as the unlawful act whereby the patrimony of a person increases at the expense of another person, without any legal grounds, the latter being entitled to claim and obtain the restitution. e) Undue fulfillment (art Civil code) means the fulfillment by a person - the debtor (solvens) for the benefit of another person the creditor (accipiens) of an obligation they were not bound to and that they fulfilled without the intention to fulfill someone else s obligation. f) The unlawful act as a source of the obligationbased legal relationships is regulated in Chapter IV of the Title V in the Civil code, being also known as legal liability. Legal liability may be defined as that obligational relationship within which a person has the obligation to remedy the harm caused to another person by its wrongful act or the harm for which it may be held liable according to law. Civil liability is, pursuant to art and 1350 Civil Code, of two kinds: tort and contract. 10 Compensatory damages are the equivalent value of the damage suffered by the obligor due to the failure to fulfill or the partial fulfillment of the obligation and may not be cumulated with the fulfillment of the obligation in kind; 11 G. Boroi, L. Stănciulescu, Civil institutions under the new regulation, Hamangiu Publishing, 2012, Bucharest, p. 169;

4 Bogdan NAZAT 263 g) Besides all these sources, we should mention 12 : - civil liability for the damages caused by flawed products put in circulation, governed by the Law no. 240/2004 on manufacturer s liability for damages caused by flawed products, republished 13 ; - injuries caused by legal errors. IV. THE CLASIFICATION OF THE OBLIGATIONS Besides the categories of obligations mentioned above, i.e. obligations to give, obligations to do and obligations not to do, the Romanian legislation knows several types of obligations, classified by taking into consideration different aspects. Therefore, the obligations are also classified as follows: a) positive and negative obligations. This classification is significant, for instance, as regards the manner in which the notification of default made by the creditor functions, if damages-interests are claimed for the failure to fulfill, the late fulfillment or the improper fulfillment of the obligation. Thus, pursuant to provisions of Article 1523 par. (2) letter b) of the Civil code, the debtor is notified of default by the effect of the law when defaulting on an obligation not to do. On the other hand, as regards positive obligations, as a rule, the notification of default of the debtor is required, Article 1528 par. (2) of the Civil code provides that except for the situation when the debtor is lawfully defaulting, the obligor may exercise such a right only if notifying the debtor either when notifying the first of default or subsequent to it. b) obligations of outcome and obligations of means. Pursuant to Article 1481 par. (1) of the Civil code, as regards the obligation of outcome, the debtor is bound to obtain the promised result for the creditor. Thus, obligations of outcome are those obligations characterized by the fact that the debtor is obliged, through its conduct, to obtain a certain result for the benefit of the creditor. The obligations of means, called also obligations of diligence or obligations of prudence and diligence, are defined under Article 1481 par. (2) of the Civil code as being those obligation within which the debtor is bound to use all the means required for achieving the outcome promised. Thus, we may define the obligations of means as those obligations consisting of the duty of the passive subject to use all the diligence required for achieving a certain outcome, but without being bound to the outcome expected 14. c) perfect civil obligations and imperfect civil obligations. The perfect civil obligation is the obligation that is sanctioned by the law, namely the creditor may be helped by state coercion for its fulfillment, if the debtor does not willingly fulfill the assumed obligation. Most obligations fall into the category of perfect civil obligations. The imperfect civil obligation, called also natural obligation, is that obligation characterized by the fact that its fulfillment may not be achieved by means of enforcement in a Court of law but, if it is fulfilled willingly, the debtor does not have the right to reclaim the performance. d) common civil obligations, scriptae in rem obligations and propter rem obligations. The common civil obligation is the obligation that is to be fulfilled between the parties of the obligational relationship, this being incumbent on the debtor for which it was created. Most civil obligations consist of such obligations, common obligations being the rule in our law system. Scriptae in rem obligation (or the obligations binding also on third parties) is the obligation characterized by the fact that, being in close connection with a good, shall be effective also as regards a third person that acquires subsequently a real right to that thing, even if they did not take part in the creation of the legal relationship that contains that obligation. Propter rem obligation, called also real obligation, is the duty incumbent on the holder of a real right to a thing and originates in the law or the agreement of the parties. The existence of this category is justified by the need for example to facilitate the existence of some relationships of good neighbors, to protect things of national importance, to use or preserve the qualities of some important things 15. e) other categories. According to the source of obligations, there are the following categories of obligations: civil obligations arising from unilateral legal acts, civil obligations arising from contracts, civil obligations arising from negotiorum gestio, civil obligations arising from undue fulfillment, civil obligations arising from unjust enrichment, civil obligations arising from unlawful acts causing harms. At the same time, there are simple obligations and complex obligations. The category of complex obligations includes divisible obligations and indivisible obligations, joint obligations, obligations affected by term and obligations affected by condition, alternative obligations and optional obligations. As a last classification, we may speak about pecuniary civil obligations, whose object is the obligation to provide an amount of money, and nonpecuniary civil obligations, whose object is any other performance than an amount of money. This last classification may be made depending on the object of 12 L. Pop, I.-F. Popa, S. I. Vidu, op. cit., p. 48; 13 The Law No. 240/2004 was republiushed in the Official Gazette of Romania No. 313/2008; 14 G. Boroi, C. A. Anghelescu, Civil law course. General Section, Hamangiu Publishing, 2011, Bucharest, p. 69; 15 G. Boroi, C. A. Anghelescu, op. cit., p. 71;

5 264 Challenges of the Knowledge Society. Private Law obligation, namely whether this may be expressed or not in money. V. CONCLUSION The subject choosen for this paper is actual, even if the Romanian legislation is in continuously change. It can be observed that the legislator considered the doctrine when drafted the the new applicable legislation. Therefore, by approaching this subject, we intended to offer the reader the possibility to make an opinion of the legal provisions applicable to and the interpretation offered by the doctrine (based on the legal provisions) to the institution under analyse. References The New Civil Code. Comments per articles. Art , Coordinators Fl. A. Baias, E. Chelaru, R. Constantinovici, I. Macovei, C.H. Beck Publishing, 2012, Bucharest; Marilena Uliescu, The new Civil code. Studies and comments. IIIrd Volume. Ist Part. Vth Book. About obligations (Art ), Universul Juridic Publishing, Bucharest, 2014; C. Stătescu, C. Bîrsan, Civil Law.General Theory of Obligations, ninth edition, revised and supplemented, Hamangiu Publishing, 2008, Bucharest; L. Pop, I.-F. Popa, S. I. Vidu, Basic Civil Law Treatise. Obligations Pursuant to the New Civil Code, Universul Juridic Publishing, 2012, Bucharest; Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Civil Law Course. Main Real Rights. Second Edition, revised and supplemented, Hamangiu Publishing, 2013, Bucharest; G. Boroi, L. Stănciulescu, Civil institutions under the new regulation, Hamangiu Publishing, 2012, Bucharest; G. Boroi, C. A. Anghelescu, Civil law course. General Section, Hamangiu Publishing, 2011, Bucharest; Law no. 287/2009 on the Civil Code; Law no. 240/2004 on manufacturer s liability for damages caused by flawed products; Law. No. 71/2011 regarding the enforcement of the Civil code; Romanian Civil code of 1864.