The system of law

The system of law consists of branches of law which are legal rules linked by their object.
Legal rules that have the same content of commandments form a juridical institution.
All legal rules are linked together in a system of law.
The main division of law is a) international law
b) National law (domestic law)
The second division
a) public law
b) Private law
International public law regulates the relationships between states and between international
organizations (s. a. International Court of Justice). The rules are national, laid down by national parliaments.
International private law regulates relationships between individuals under the jurisdiction of
different states or who have goods/interests in different states.
National system of law. There are several criteria used in order to make a distinction between public
and private law.
1) Is the state involved in any way in the relation regulated by that branch of law?
2) Are the parties of such a relation in a position of equality or is one of the parties dominant?
Public law consists of rules related to the organization of the state and public authorities, rules that
regulate the relationships between the state and citizens. The main feature of these juridical relationships is
that the parties are not equal from a juridical point of view. The state always acts with authority.
Public law covers different law such as:
Constitutional law
Administrative law
Financial law
Criminal law
Private law. Consists of rules referring to relationships between individuals, citizens. The parties of
private law are natural or legal persons and are absolutely equal from a juridical point of view.
In Romania legal system there exist the following branches of private law:
Civil law (the main branch)
Commercial law
Labour law
Family law
There are codes for each branch:
Civil code
Commercial code
Labour code
Family code
The Civil Code is the oldest in Romania. It was adopted in 1864. It is still enforced today. It was part of the
Napoleon Code (French).
There is a special relation between Civil Law and the other branches of Private Law. Originally Civil Law was
the only branch regulating relations between individuals. Only in the last 19th century some special rules were
adopted in order to regulate the relations between certain individuals (employers, employees).
It means that whenever we have no rule in one of the other branches of law for a specific situation the solution
will be to apply the general rule of civil law.
As a general definition, Civil Law is considered to be the branch of law which regulates the patrimonial
and the non-patrimonial relationships between parties that are legally equal.
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The object of civil law includes:

Patrimony relationship: right of property or other real rights.
Relationships of obligations: law of contract
Non-patrimony relationships:
relationships related to life and moral or physical human integrity : right to life, right to health, right to
privacy
relationships related to the identification elements of a person: right to have a name, a pseudonym, a
residence
relationship having as content the copyright, know-how or inventors right

Sources of law
Law= any normative act issued by a legislative body of a state such as the Parliament following a preestablished procedure.
There are three types of law: constitutional, organic, ordinary law.
Constitutional laws establish the organization of the political powers and regulate fundamental civil
liberties. It has to be adopted with a majority of at least two thirds of the number of the members of the
Parliament. The rules of the Constitution are invested with a superior juridical force. The Constitution is
considered to be the mirror of the economic structures of the forms of property, of the organization of the
state.
Organic laws are adopted with the absolute majority of the members who are present in each house of
Parliament. The organic laws establish the organization of the Government, the organization of the supreme
Council of Defense, of the political parties of the local administration.
The most important Ordinary Laws are the codes (civil, commercial, labor, etc.)
The term law is used in two senses:
The wide sense (lato sens). The law is any written rule properly brought into effect by an authorized
source and in this sense we include the Constitution, the codes, and regulations, adopted by the
government.
The narrow sense (strico sens). We include only the acts adopted by the Parliament.
The problem of sources of law relates to the question: Where does the judge obtain the rules by
which to decide cases?
The written law is the main source in our system (Romanian, Continental system). The Continental system is
the system of law having as source the Roman law.
The judge only interprets and applies the law. Our Civil Code provides in this matter. Judges are prohibited
from pronouncing by way of general statements on the cases which are submitted to them. The law may
therefore be applied in our system by the Courts different in identical cases.
There is a tendency for courts to follow earlier decisions even in our system, especially in higher courts, but
the courts may and sometimes do ignore the decisions of higher courts.
In our law the case law is not a formal source of law. The judge has the obligation to apply the law.
There is another source of law which is considered the most important in Anglo-Saxon system: Juridical
Precedent (jurist-prudence) - CASE LAW. The Anglo-Saxon system is applicable in all United Kingdom
and all former English colonies (Canada- Quebec, USA etc.)
In the Anglo-Saxon system the case law is the main source of law. In the Anglo-Saxon system the judge is
regarded as the one creating the law.
In the US and UK there is 2 principles applicable in this topic:
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1. The principle of predictability. According to it one has to be able to predict the future decision of the
court. Knowing the former decisions in the same issue he/she may easily anticipate the solution of the
judge.
2. The principle of flexibility. The judge has to be free to make a new law. Hes not bounded by the
written law which is abstract. Whenever a new problem arises he has to solve it by adapting the
decision to the real life.
Other sources: religious sources of law (musulman).
Academic Opinion (Doctrine). It may be a handbook, an article, a study, it may also be a note prepared about
the case, by either an academic or a lawyer. These notes are particularly useful in view of the brief and formal
nature of the court judgments.

Legal Rules
Legal Rules are the simplest element of the system of law. It is an established standard or principle
guiding the conduct or action in a given type of situation.
Civil Legal Rules are rules of human behavior which define the relationship between people and
between people and the society.
Any juridical rule has the following features:
It is general. It prescribes a general and typical behavior that is addressed to anybody.
It is impersonal. It is not addressed to a specific person, but to an undetermined number of persons.
However, there are different ranks of indetermination. Constitutional rules have the largest rank of
indetermination while family law applies to persons linked by family relationships. Also, within family
legal rules some of them are related to parents, so the rank of indetermination is much smaller.
It is compulsory. Its provisions can be imposed if necessary by the coercive power of the state.
This feature distinguishes the legal rule from other social rules (moral rules). Even if a moral or religious
rule is mandatory it may never be applied by the coercive power of the state
Each legal rule has an internal structure (formal logical structure). It has 3 elements of structure:
1. The hypothesis. It is the element of the legal rule that describes the circumstances when a certain
behavior is required. It also provides the category of persons which have to obey the rule.
2. The provision (dispozitia). It describes what those governed by the law, the subjects of the law have
to do, are allowed to do or are forbidden to do. Therefore the provision can require a specific action, or
the abstention to act or it can allow some actions.
3. Sanction. It specifies which are the consequences in case of non-observance of the rules provision.
It can be:
Absolutely determined whenever the judge cannot modify it (e.g. The nullity of the contract
concluded in an unlawful way)
Relatively determined whenever it provides only the minimum and the maximum of the
penalty and the judge may choose the proper penalty applicable(the penalty is from 2 to 5 years
of prison, or from1mil lei to 5 mil lei)
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There is another classification:

Alternative penalties when the judge can choose between 2 penalties (e.g. prison or criminal
fine)
Cumulated penalties when the law provides 2 or many penalties for a specific crime( s. a.
prison and withdrawal of rights- e. g. parental rights)
A typical juridical rule which has all these may be a sentence: If you are in a certain position, context
then you have to dosomething, are not allowed to do something, otherwise a certain sanction will be
applied.
IF-hypothesis
THEN-provision
OTHERWISE-sanction
Classification of legal rules
1. According to the object of the provision there are as many legal rules as there are branches of law. (e.g.
constitutional, civil, labor, family legal rules)
2. According to the type of behavior requested legal rules can be classified as:
1. imperative rules
2. disposal rules
From this point of view the law can be divided into:
rules that apply regardless of the persons affected by the law (imperative rules)
rules that apply unless the person affected agree that they shall not be applied (disposal
rules)
The division of the public law consists almost entirely of imperative rules.
The private law is a mixture between imperative and disposal rules
Imperative rules (Mandatory rules) can be divided into:
Imposed rules (norme onerative). They provide the obligation to do something.( duty to pay tax)
Prohibitive rules (norme prohibitive). They forbid a specific action. Most criminal rules consist of
such interdictions.
The Disposal rules may be:
Suppletive (voluntary). They become applicable only in the case of the silence of the parties. (e.g. in
a sale contract the price will be paid at the residence of the debtor unless the parties agree
otherwise).They became mandatory only when parties cant agree to decide otherwise.
Permissive. They allow a certain behavior(e.g. normally a person can marry starting 18y old, by
exception women can marry starting 16)
3. The rules may also be classified according to the technique used for their drawing up as:
Complete rules. Only if they have all the three elements of the internal structure: hypothesis,
provision, sanction.
Recurrence rules. Which do not have all the elements of their internal structure and for missing parts
they send to another normative act.
Blank rules. Which also do not have all the elements and also their missing elements will be
completed in the future through another normative act.
The interpretation of legal rules.
The legal law cant be applied without being interpreted. The interpretation is important in order to have
an accurate application of the rule to a real situation. Because of the wide variety of real situations a legal rule,
even if its perfect, it cant regard all of them. A legal rule cant take into account all the actual and possible
situations because life is always changing and transforming the reality every second .Also, the legislator
frequently uses general terms, he cannot describe in detail every social situation, so an interpretation is more
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than necessarily. Also it is necessarily whenever contradictions between different normative acts of different
prescriptions of the same law occur. Finally the words can have, from a legal point of view, other meaning
than those of current speech.
The duty of the judge as an interpreter is to arrive to a legal meaning of the rule. The legal meaning is not
necessarily the same as its grammatical meaning. According to our civil code the judge is never entitled to
decline the duty of determining the legal meaning of the rule.
The forms of interpretation
According to its juridical force the interpretation can be:
Official interpretation. The official interpretation may be given by the legislator or the judges
and the courts. The interpretation by the legislator is mandatory for everybody. The
interpretation given by judges is compulsory only between parties implied in the trial. If
another trial will arise in the same issue, the judge will be free to give another interpretation to
the rule.
Non-official interpretation. It is given by the doctrine lawyers, subjects of the law. The role of
this interpretation is to rise above the particular provisions, above the factual situations and
create general principles. The so-called lex ferenda proposals given through non-official
interpretation may support the improvement of law.
The methods of interpretation
1. The grammatical interpretation. It is the first step in the legal interpretation of a rule. Normally the
legal rules will be interpreted according to the actual meaning of the words. The legal meaning of the words
corresponds to the grammatical meaning. A legal rule has to be clear, accurate and precise. It also has to allow
a simple and common understanding and to be written in a concise style, without ambiguities.
Nevertheless there are cases in which the juridical meaning is not the same with the usual meaning of the
word. For example, the verb to give commonly means to hand over something, while legal point of view it
means to transmit a real right as the ownership right. Sometimes, civil law uses specific words, unknown in
common speech s. a. pledge, prescription, legal capacity, servitude and so on. When it is necessarily, the law
explains itself the meaning of certain words.
The main purpose of this interpretation is to understand the legislators will.
2. The systematic interpretation. It is known as the contextual approach. The interpretation of the law
has to take into consideration the existing connection between different legal rules or different normative acts
referring to the same object under settlement. The legal rule will not be treated as standing alone. It has to be
interpreted in a context as part of a status, as a part of a branch of law, as a part of a system of law.
3. The historical interpretation. It involves looking at the reports and debates in the Parliament,
regarding the passing off of the legislation. Within this approach the interpreter should analyze the concrete
conditions: social, economical, political, which allowed the adoption of the law. This method may be
particularly relevant for old legislation (our Civil Code-transcription of the French code).
4. The logical method of interpretation. This method of interpretation uses the rules of formal logic
and its systems of reasons.
The best known logical rules of interpretation:
- The exception has a very strict interpretation. Theoretically, an exception rule applies only
under a specific hypothesis; it cannot be extended to other cases with different conditions.
Special law is an exception and general law is the rule. Special law always derogates from
general law, but general law cannot ever derogate from special law.
- Nobody can limit the application of a legal rule because its general wording, meaning that
a general wording implies a general application.
- A legal rule has to be interpreted in order to apply not to remove its application. From the
logical point of view, law was adopted in order to produce juridical effect. If that effect cannot
occur the adoption of law is senseless.
In order to interpret legal rules, the logic interpretation uses logical arguments, besides logical rules.
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The most frequently used logical arguments:

- The argument per a contrario meaning that A cannot be A and non-A at the same time.
Anytime when a specific command is provided for by legal rule, the opposite command is
denied. We can depart from laws that are not related to public regime. But the silence of law is
not always equal to the opposite command.
- The argument a fortiori rationae. This argument is used in order to extend the application of
a legal rule to a unknown case, which has similar conditions with the case provided for by the
legal rule or belongs to the same category of cases.
- The argument ad majori ad minus. This means that those who can do more can do less. For
example, the Constitution guarantees the fundamental citizens rights, and thus, the labor rights
are guaranteed by Constitution.
- The argument reduction ad absurdum. This argument is based on the fact that among
different meanings of a legal rule there should be used that one which suits better to the rules
aim. For example, commercial low doesnt have compulsory provisions regarding the amount
of register capital for some private institutions like sleeping partnership or general partnership.
That doesnt mean that this kind of companies dont have any capital requirements just that this
amount is not imposed by law and thus may vary according to the partners will and financial
possibilities.
- The argument of analogy. Any time when law has the same reason, the same legal rules
should apply. The judgment is very simple: the same cause should determine the same result.
The law itself doesnt provide any of these methods. They are the result of the doctrinal work. Nevertheless
the Civil Code includes some provisions regarding the interpretation but only concerning the construction of
the contract. By analogy, such rules may be useful even in the interpretation of the legal rules.
These are the rules applicable in order to construct a contract:
In interpretation agreements the judge has to find the common intention of the contracting parties
instead of the literal meaning of the words.
When a provision can have 2 meanings, the interpretation that will make it effective is to be preferred
over the interpretation that will deprive it of all effects.
Terms, words that can have 2 meanings are to be taken in the sense most appropriate for the subject
matter of the contract.
Each provision of an agreement is to be interpreted as a part of the entire contract.
In case of doubt the agreement is to be interpreted against the person who has rights and in favor of the
party assuming obligations. (in dubio proprero)

The application of law

The main purpose of these interpretations is to apply the law. A law is created in order to be applied for
a certain period of time, in a certain territory, to a certain category of people. We may speak about the
application of the law from three approaches: in time, in space, to people.
The application of the law in time.
There are some very old laws (our Civil Code) but even they are going to be repealed. A law is not in forced
forever. In order to establish whether a certain law is enforced or not we have to seek the exact moment of
entering into force and the exact moment of the end of the laws application.
The enforcement of law means that the president signs the draft of law as it was approved by the Chambers
and the Parliament, then orders its publication. The law enters into force after 3 days from the moment of its
publication in the Official Monitor of Romania. It may also enter into force later on a further date. In such a
case the date of entering into force has to be mentioned expressly within the content of the law. From the date
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of entering into force the law becomes compulsory and is presumed to be known by everybody. Nobody can
pledge ignorance in front of the court of law.
The application of the law usually ends by its repeal (abrogation). The repeal may be express or implicit.
The express abrogation occurs when new law expressly specifies that the application of a specific law has
come to an end. The express abrogation may be:
Direct, whenever the new law mentions which laws or the articles of a particular law are repealed.
Indirect, whenever the new law provides that any contrary rules to the new one are repealed.
The law provides for a certain period of time between the moment of its entering into force and the moment
when its application comes into an end.
Some juridical relations are concluded during a certain law, are modified during another law and are
put to an end during another law. Under these circumstances which law should apply to the entire
relationship? There are 2 principles which apply in this matter: the principle of non-retroactivity of the law,
the principle of immediate application of the law.
1. The principle of non-retroactivity of the law. The law should not operate retrospectively
OLD LAWNEW LAW
A person cannot rely on the ignorance of the law. A person is required to obey the law. It follows that
he/she should be able to trust the law and that it should be predictable. A law which is modified
retrospectively cannot be predicted. It is therefore likely to be unjust. According to the first article of our Civil
Code the law disposes only for the future, it has to retroactive power.
This rule is provided by the Constitution as well. In this matter the Constitution provides that the law
disposes only for the future except the more favorable criminal law. If a person committed a certain crime,
normally the judge is taking into account the law enforced at the moment the crime was committed. By
exception from the principle of non-retroactivity of the law, if during the trial the law is changed and another
law, more favorable comes into force the judge will take into account this new law and not the one enforced at
the time the crime has been committed.
In conclusion, any person has to obey the existing law, meaning that the law enforced in this very
moment and the law which is presumed to be known, and not to obey the future law. The only exception is the
case of the more favorable criminal law.
The principle of non retroactivity of the law is expressly provided in the Constitution. It means that no
ordinary law could disregard it.
2. The principle of immediate application of the law.
This principle is symmetrical of the first one. A law should never apply to the facts or events occurred after it
ends. From the moment when the new law comes into force it is immediately applicable and the old law ends
all its effects.
The principle of immediate application of the law is only a principle of juridical logic. It isnt provided
in the Constitution. In some cases the legislator may and does disregard it. In the most important issues, the
new law disposes that some fields will still be provided by the old law for a certain period of time. Such
situations are known as ultra-activity of the law.

The Civil Juridical Relation

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 Juridical Relationship is a social relationship regulated by civil legal rules. 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 human
actions can be committed deliberately-with the intent to produce legal effects and/or
unwillingly or unintentional without the intention to produce legal effects. All
unintentional or voluntary actions are juridical facts.
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 parties (subjects of the juridical relations).

Due to the fact that a juridical relation is always a social one, only persons may be subject to such a
relation, either as individual or collective. Thus, the subjects of a juridical relationship are natural persons
(persons considered as individuals) and legal persons (persons considered as a community/group of people).
In order to be a subject of a juridical relationship, law allows persons to have rights and to assume obligations.
As subject of a civil juridical relation a person may have one of the following positions:
He/she may be an active subject of a juridical relation. An active subject is a person who has rights
within the civil juridical relation.
He/she may be a passive subject to a juridical relation. A passive subject is a person who is obliged to
do or not to do something within the juridical relation.
In a contractual relation the active subject is called the creditor and the passive subject is known as
the debtor. According to a specific civil relationship these particular names can be different. Thus, if we have
a selling and purchasing contract, the parties are the vendor/seller and the buyer/purchaser/vendee.
Very often the parties of a juridical relation can hold at the same time both positions. They can be subjects of
rights and obligations at the same time.
The persons may be regarded as individuals (natural persons) or they can be regarded as collective
persons (legal persons).

The natural persons

The legal Capacity
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. Each person has his own legal
capacity and has only one. Moreover, the law states who has legal capacity and when, as well as in what
conditions a person loses his 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:
Universality. Any person has abstract capacity.
Generality. The abstract capacity of a person includes the faculty to own any rights and to have any
obligation.
Inalienability. It cannot be given away.
Legality. Exclusively the law provides the abstract capacity. It may never be regulated by contracts.
When does the abstract capacity begin?
Since the abstract capacity is granted under the law to each human being, it begins at the very moment
of birth. Somebody may be considered as a person, as a subject of law even before its birth. He/she may be
recognized as a successor. Our Civil Code provides that a will is not valid unless the designated heir does
exist in the moment of the death of the testator. Whenever a baby not yet born is designated as the beneficiary
of the will he/she is considered to exist and to already be a person even though he/she will be born in the
future. In this case a person can get only rights. This anticipated abstract capacity is only recognized only if
the baby is born alive, otherwise he is considered as if he never existed, and as if he never had abstract
capacity.
When does the abstract capacity end?
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As a rule the abstract capacity ends at the death of a person. If the body of the dead person exists, there
will be no problems in considering the abstract capacity as finished. A special problem arises when the person
disappears. From a juridical point of view it is very important to establish if the abstract capacity of a person
continues of it ends.
The procedure in such a case is the following:
After at least one year from the moment of disappearance the interested persons can begin an action in
disappearance announcements. A special statement of the court is required. The court names an official
guardian of the estate that belongs to the person who disappeared and also takes some measures of
publicity. The rule says that the disappeared person has to be considered as being alive, therefore
having the abstract capacity.
After at least 4 years from the moment of disappearance the interested persons may bring a second
action in death announcement. From this moment the abstract capacity of a person is considered
finished. If the person appears the second death announcement he will be put in the same position as
he was before his disappearance. The goods that are in the possession of the heirs will be returned. If
the person reappears and the wife/husband had remarried, the second marriage will be considered as
valid.
Only the law may limit the abstract capacity. The law may limit it for 2 purposes:
1. The abstract capacity may be limited in order to protect somebody or in order to sanction somebody.
Our Criminal Code provides some complementary penalties. Such penalties prohibit not only to
exercise some rights, but also to own them.
E.g.: 1- A person who has been found guilty for a crime related to a certain profession is forbidden to
profess in the same field.
2- The interdiction to vote or to be elected for a person who has committed certain crimes.
3- A minor cannot make a will naming as beneficiary his own guardian in order to protect him
The concrete capacity. A person can be in a position of owning a right but not being able to use it. The
concrete capacity may be defined as being somebodys ability to sue or to be sued and to enter into a binding
contract (to conclude a contract into his/her name). We may say that the concrete capacity is the abstract
capacity + discernment.
CC=AC + Discernment
Discernment = to see clearly
From a legal point of view the discernment is the mental ability to understand the nature and the
effects of somebodys acts.
The concrete capacity is granted according to the Romanian Civil Law at the age of 18. At this age it
is presumed that the human being has the capacity to understand his/her actions and to decide what to do. At
the age of 18 the person is considered by the law as being an adult.
This presumption made by the law is in the same time rebutable and non-rebutable.
A rebutable presumption is one which no evidence, however strong, no argument, no considerable
evidence will be permitted to prove that an underage person (e.g. minor of 17) does have compatible
discernment and is able to realize the consequences of his acts.
The same presumption is rebutable in the sense that its acceptable to prove that a person, however
mature has no discernment.
The law regulates the existence of an intermediate period from 14 to 18 years. The period is named the
period of restricted concrete capacity.
During our lives we go over 3 distinct periods of time:
1. The person has no concrete capacity. Minors of less than 14 years are subjects of incapacity of
exercise. They must be represented by a legal administrator, usually their parents or a guardian. People
under 14 cannot validly contract. Their contracts 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:
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 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: 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 negative obligation of all other persons to abstain of encroachment them.
They are inalienable rights that cannot be alienated through juridical acts or transferred through
inheritance.
They are indefeasible rights. They cannot be extinguished by their non-use or acquired through long
use as well.
They are strictly personal rights. They are strictly related to the person who holds them. As a
consequence they cannot be exercised by representation (proxy).
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 legal person

A legal person is an entity such as a corporation, a company, an association created by the law and
given certain legal rights and duties of a human being.
Companies and other legal persons have their own personality, separated from that of the shareholders,
or directors, or members, or even of other companies in the same group. Even if a company is totally
dominated by one shareholder the company and the shareholder are distinct persons. In other words a legal
person is a legal entity with rights, privileges, and liabilities distinct, separated from those of the individuals
who invest money in it.
There are two consequences of the separate legal identity of a company:
1. A company can sue and be sued in its own name.
2. A company can make contracts in its own name.
Its members cannot claim the benefit, nor can they be subject to the burdens, obligations of such contracts.
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The main constitutive elements of a legal person are the following:

1. The organization. The legal person has its own organization. The companys internal structure is
usually divided into different departments (production, research, marketing, etc.). It also means the
organization of the management organs and the natural person who represent the legal person. Since
there is a huge diversity of internal structures and there are no imperative rules for this matter, any
internal structure is allowed by the law.
2. The patrimony. The company has its own patrimony. It is distinct from the patrimonies of its
members. The patrimony can be defined as being a juridical universality which includes all the rights
and the obligations with patrimonial character which belong to a subject of law and also includes the
goods to which these rights and obligations are referred to.
Juridical universality: law provides for the mixture of different groups of goods, rights and
obligations but still the patrimony is independent from its elements.
The patrimony includes only groups of goods, obligations, rights that have a patrimonial
character, meaning that they can be expressed in money.
Each subject of law has its own patrimony and only one. It means that the patrimony is
unique. In order to be a subject of law, different from other subjects of law, a legal person has
to have its own patrimony. This patrimony is separated from the patrimony of other legal
persons of from the patrimony of natural or legal persons who compose it.
3. The goal (purpose). The legal person has its goal or its own object of activity. It has to be lawful. The
purpose of the legal person justifies its existence as a subject of law.
The classification of legal persons:

Legal persons of public law

Legal persons of private law

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.
1. Main legal persons of public law
a) 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.)
b) The local administration units. The county, the town and the village is a legal person and has a legal
capacity
c) The organs of the legislative power of the state: Deputies Chamber and the Senate as well as
Romanian Parliament are organized as legal persons.
d) The organs of executive power of the state: such as the President, the Romanian Government, the
ministries, the Romanian diplomatic missions and the local organs of public administration.
e) The judicial instances: courts of law, tribunals, courts of appeal
f) The Court of Accounts
g) The Constitutional Court
h) Other states institutions: schools, hospitals, universities etc.
2. Main legal persons of private law
a) The Autonomous Reggie and commercial companies with state capital
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b) The private commercial companies. They are legal persons from the date of their incorporation in tha
Register of Trade
c) The political parties
d) The syndicates/labor unions or union-trade of workers.
e) The non-patrimonial associations and foundations
f) The religious creeds.
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).
The legal capacity of legal persons
The legal capacity means the ability of a legal person to have rights and obligations and to participate on its
own name within the framework of juridical life. The legal capacity includes the abstract capacity and the
concrete capacity.
The abstract capacity of legal persons
The abstract capacity of a legal person means is general and abstract ability to have rights and obligations
which correspond to its goal. The content id formed by:
- an active side: the ability to have patrimonial and non-patrimonial rights rising from the
contracts or from other juridical facts
- a passive side- which explains the ability to have patrimonial and non-patrimonial obligations.
Nevertheless, no matter which branch of law is involved, a legal person is a subject of law. As a subject of
law, the legal person has only one legal capacity .In other words; the legal capacity of a legal person is unique
as it is for natural persons, too.
The abstract capacity has the following features:
1. It is legal. It is stipulated by law and nobody can extend or limit its content
2. It is general. The rights and the obligations which form the content of the abstract capacity are not
exactly provided by law for each legal person.
3. It inalienable. In cannot be alienated or yielded either in total or in part by juridical acts.
4. It is intangible. It can be limited only by law and these limits depend on the object of activity of the
legal person. These limits express the principle of specialization.
5. It is special. The specialization of abstract capacity is that character which departs the abstract
capacity of a legal person from the abstract capacity of a natural person. For legal person the content
of abstract capacity is different according to the goal for which each legal person w
6. as set up. The natural person has the aptitude to own any right and to have any obligation. A legal
person may own only those rights which are meant to achieve the established purpose.
This rule is the rule of specialty of the abstract capacity. According to this rule any juridical act which has
been concluded for another purpose than the one originally assumed by the legal person is null and void. Any
juridical act concluded outside the object of activity may produce no effect.
The law provides that a legal person can have only those rights and obligations which correspond to its aim
established by the law or by the constitutive act. Normally the object of activity is expressly mentioned in the
constitutive act of the legal person. These constitutive acts outline how the organizations board of directors
will operate, specify the size of the board, the selection of the board members, the number of board meetings,
and the purpose of the organization.
When does it begin?
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The legal persons submitted to registration obtain their abstract capacity on the date of their registration.
The legal persons who are not submitted to registration obtain their legal capacity according to the way used
to set them up. This can be the date of the order of the state organ competent to set them up, the date of the
recognition act, the date of the authorization act or the date when any other legal requirements are fulfilled.
Even before registration the legal person has some rights and obligations tightly linked to its valid setting up.
This is called limited or anticipated abstract capacity.
When does it end?
The anticipated abstract capacity ends when full abstract capacity is obtained.
Without abstract capacity a legal person cannot exist. So, the full abstract capacity ends when the legal
person ceases. When a legal person begins the clearing off process, its full abstract capacity still has to exist
but it is restricted. The legal person can no longer carry on the business but it still has rights and obligations to
accomplish the clearing of process. From the date of dissolution to the date of erasure from the register, the
legal person can unfold its activity but only in order to achieve its patrimonial rights and pay its debts. The
restricted abstract capacity end when the legal person is erased from the register where it was incorporated.
The concrete capacity of legal persons
The concrete capacity of a legal person is defined as being the abstract and general ability to obtain and to
exercise subjective civil rights and to fulfill civil obligation, by concluding in its own name civil juridical acts
through its organs.
A legal person expresses its will through its management organs. Unlike the natural person, an abstract
construction as the legal person cannot have its own will unless the law stipulates that. Between the legal
persons and the management organs there is the so-called legal representation, meaning that the
management organs, either in unipersonal form or collective form, represents the legal persons within the
relationship with third parties.
Similar to the abstract capacity of a legal person, its concrete capacity has an active side (the acquiring and
exercise of its rights and a passive side (the assuming of obligations) as well.
In fact, between the both components of the legal capacity of a legal person there is a tight connection. The
abstract capacitys specialization also limits the content of the concrete capacity, because the concrete capacity
cannot be larger than the abstract capacity. But it could be smaller. Also, the plurality of the management
organs and their competences can be another limit of the concrete capacity.
When does it begin?
It is considered that the legal person obtains its concrete capacity at the same time with its abstract capacity, or
when its management organs are appointed. The common opinion is that the legal person obtains its concrete
capacity on the date of its setting up. Besides the anticipated abstract capacity, the legal person has an
anticipated concrete capacity from the moment of its setting up and with the view to its valid setting up.
When does it end?
The concrete capacity ends when the existence of the legal person ends. It can also end in case the legal
person is reorganized: is subject of a fusion or of a merger by absorption or of a total division.
The identification of legal persons
The identification of a legal person is necessary from its setting up moment until the end of its activity. By
identification it is usually meant the individualization of a subject of law who is on his own name part of the
juridical relationship. The identification attributes for a legal person are: the denomination, the headquarters,
the nationality, the trade mark, the emblem, the fiscal code, the telephone, fax, the bank account etc.
The identification attributes are non-patrimonial rights and they have the following features:
- are opposable erga omnes- being absolute rights
- are inalienable- they cannot be transferred through juridical acts
- are indefeasible- meaning that they cannot be lost if they are not used
- are personal- are tightly linked with the person
- Universality- any legal person has the right to have identification attributes.

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The content of the juridical relation

It is the main element of the juridical relation which includes rights of the active party and obligations of
the passive party. Within a civil juridical relationship the rights and obligations are interdependent. It means
that to the right of the active party it corresponds the obligations of the passive party, and vice versa.
Sometimes only one of the parties has the position of the debtor and only the other one is the creditor (e.g.
borrowing contract one of the parties will be the debtor, the other one being the creditor).
There are some civil juridical relations in which both parties have at the same time rights and obligations
(e.g. the selling contract both parties have the double quality of active and passive party). In such a case the
rights are interdependent and mutual.
The content of a juridical relation has 2 components:
The active party which includes the rights
The passive party which includes the duties
Civil Rights
The right is the juridical possibility recognized by the law to a natural or legal person to have within the
limits of the law a certain behavior and to pretend to the other persons, as passive subjects, one of the 3
things: to give, to do, not to do something.
To give to transfer a real right (the right of property)
To do to perform a certain activity, a positive action in favor of the active party (e.g. the obligation
of the employee in the benefit of the employer)
Not to do the obligation of the passive subject to abstain to do something that he is otherwise
entitled to do (the clause of non-competition)
The rights can be classified based on their content in patrimonial and non-patrimonial rights.
The non-patrimonial rights are those with no economic content (e.g. right to life, copyright).
Patrimonial rights have an economic content. They can be evaluated in money.
In case of patrimonial rights we have debt rights and real rights.
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 something. 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 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. They 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 main 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.
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In case of a debt right the corresponding obligation may be to give, to do or not to do something. 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 of 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, but the debtor
himself, through his own will has limited his own right. (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, to give, to do or not to do something for him.
Both the active and the passive subjects are determined from the beginning of the juridical relationship. 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 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.
Real rights may be:
1. Principal real rights. They dont depend on any other rights. They are self sufficient.
E.g.: Property rights. The property rights include 3 prerogatives: the possession, the use, the disposition.
Since the property is a complex right it may be dismembered into components, and the rights which result
are named dismemberments of property (e.g. It is possible to separate the disposal prerogative from the
other two prerogatives. A certain person can possess and use the good and another person can dispose of
it. The dismemberment is called usufruct in this case). The dismemberments have the same configuration
as the property right itself. They are real, principal, and absolute rights. The owner (active subject) may
be a private person (a rule) or a public person (the exception).
In case of private property the owner can be any person, any individual or legal person, or even the state.
In case of public property the owner can only be the state or the local authorities.
2. The accessory rights. They depend on a debt right. In this category we may include the mortgage and
the pledge.
The mortgage has 2 meanings:
It is a contract between the parties
It is a right (real, patrimonial, absolute right)
According to our Civil Code the mortgage contract can be concluded between an owner of a real estate which
is in the same time the debtor and his creditor. The mortgage is considered to be in the same time a real right,
on the affected property constituted as a corporal security to the payment of a an obligation. Upon the Civil
Code the mortgage can be constituted not only on the basis of the contract but also on the basis of the law.
There are 2 kinds of mortgages:
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The legal mortgage. E.g.: It can be found in the law regarding the financial administrator. The
employment contract in their case can be concluded only constituting a certain mortgage.
The conventional mortgage. It is that net imposed by the law but concluded between parties as an
expression of their own interests.

The mortgage contract has the following characteristics:

1. It has an accessory character. Its existence depends on the existence of the principal contract
2. The mortgage has a formal character. It means that the mortgage contract may be concluded only in
an authentic form required by the law for the validity of the contract.
The mortgage right has the following characteristics:
1. It is a real right. It is a real right because it may be exercised directly on the real estate. If the debtor
doesnt pay his obligation to the creditor, the real estate will be sold in a public auction and the
creditor will see his claim covered from the price obtained through this auction. Even if the debtor, the
owner of the real estate, sells the house, the land to a third person the creditor has the possibility to
ask for this public auction.
2. It is an accessory right. If the debtor fulfills his obligation the mortgage is instantly extinguished. It
cannot survive being an accessory right. In case of a mortgage the principle of specialization is
applicable. If there are more than one claims of the creditor, the mortgage has to be specialized.
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.

The object of a juridical relation

The object of a juridical relation is the action to which the active subject is entitled and to which the passive
subject is liable. While the content of civil juridical relation includes the possibilities and the legal duties, the
object implies their fulfillment. The action could be the transfer of a real right (to give) or an action of the
debtor (positive- to do, negative- not to do).
Whenever the content of a civil juridical relation includes a real right, the object of such a relation is
connected with goods.
From the legal point of view, a material object, the so called thing can be considered goods if it has an
economic value and it satisfies human needs.
Classification of goods.
Based on the nature and qualification made by law goods can be:
Movable. The movable goods by their nature are those which can be transported from one place to
another, either by themselves or those that can be moved with the help of a foreign force. There are as
well goods movable by anticipation. This category includes goods that are immovable rights now,
but considered by the parties as movable, because they will become movable in the near future. E.g.:
harvests fruit that are not yet picked up. There are also goods movable established by law based on
the object they apply to. In other words they are incorporates in the object.
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Immovable (real estate). The immovable goods are those which cannot be transported, either by
their own energy or by a foreign energy. According to our Civil Code lands and constructions are
immovable by their nature. It is usually admitted that the word constructions refers to all works
built on the ground or underground.

In case of non corporal goods the movable or immovable character is given by the law itself. E.g. In case of a
real right having as object a real estate, the law may say that any action in front of the court is itself an
immovable good.
The publicity conditions requested in case of selling of a real estate are provided by the law in imperative
rules. According to the Civil Code the possession in good faith of a movable good is equivalent with property.
The buyer in good faith of a movable good can acquire the property even if the seller is not the real owner.
Original owner

Temporary holder (detentor precar)

:
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:
Fungible goods. They 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 (established). They are those goods individualized by specific features
and characteristics. E.g. a certain car individualized by its license plate.
Goods generally identified (established). 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. (quantity of wheat, cement, apples)
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
18

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.

The main sources of a civil juridical relation

The Juridical Act
The civil juridical act is an expression of somebodys will made with the intention to create or to modify a
civil juridical relation.
There are 2 meanings of the expression: juridical act.
The expression of somebodys juridical will (the negotium sense)
It is the written statement (the instrumentum sense)
E.g.: Civil code provides that the acceptance of an inheritance may be implied or expressed. It is expressed
whenever the successor concludes an act in an authentic form in order to acquire the inheritance. The word act
is used in instrumentum sense.
The same acceptance may be concluded in an implied form whenever the successor makes an act which can
be concluded only by a person who has a successor quality.
There are several classifications of juridical acts:
Unilateral acts. It is an act that involves the expression of a single will. There is only one person
expressing the intent to create juridical effects (e.g.: the acceptance of an inheritance, the offer to
conclude a contract, the acceptance of a succession)
Bilateral acts. It is an agreement between 2 or more persons with distinguished interests. The bilateral
acts are contracts. A contract may involve an exchange of promises in which two parties agree
that each will perform a certain obligation in a certain future. Such an exchange is known as a
bilateral contract (e.g.: sale contract). If there is no such exchange, and only one part assumes
obligations, the contract is unilateral. E.g.: donation (unilateral contract but bilateral act), the loan (2
will but 1 obligation)
If we take into consideration the goal had in view by the parties concluding the act we can have:
Acts made by onerous title an act in which each party promises an economic benefit to the other in
exchange of another economic benefit.
Acts made by gratuitous title in it one party promises to the other party an economic benefit
without expecting in exchange any promise.
Most of the unilateral contracts are concluded with a gratuitous title and most of the bilateral contracts
are concluded with an onerous title.
E.g.: A deposit contract It is a unilateral contract as long as it is concluded with gratuitous title. It
can become a bilateral contract if it is concluded with an onerous title.
There are some exceptions.
E.g.: Loan contract It is a unilateral contract if it is concluded with gratuitous title. If it is concluded
with onerous title this means it has interest and it is still a unilateral contract.
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Acts made by onerous title may be subdivided into:

Commutative acts are those in which both parties know from the very beginning, from the moment
of conclusion of the act which are their mutual obligations.
Aleatory acts the parties dont know from the beginnings which are their obligations because they
depend on an external event (e.g.: insurance contract, life annuity renta viagera).
Acts concluded with gratuitous title can be subdivided into:
Gifts a voluntary transfer of goods from a patrimony to another
Acts of benevolence (acte dezinteresate) is a favor made by a person to another without the
decreasing the patrimony of the former (e.g.: deposit contract the gratuitous title act of
benevolence)
If we consider the effect of the act we may have:
Constitutive acts constitute a right that doesnt previously exist. It constitutes a new right (e.g.: the
mortgage contract)
Translative acts are the ones that transfer a right, a preexisting right (e.g.: sale contract, exchange
contract, etc.)
Declarative acts are the ones that consolidate a preexisting right (e.g.: the act by which the
common owners divide the common property into shares)
We also can have :
Consensual act. It is an enforceable one without being requested any formal conditions for this. Such
a contract is enforceable by simple agreement. They constitute the rule in our law.
Formal acts. They are enforceable only if there are observed some additional formal conditions other
than the simple consent (e.g.: mortgage, selling the land).
Real acts. They can be enforced only if goods were delivered by one party to another. Therefore the
deliverance of the goods is requested not only to perform the act, but to conclude it. (e.g.: the deposit
contract, loan contract)
The validity conditions of the juridical act:
The consent
The object
The cause
The capacity

The consent. It is the partys intent to conclude the juridical act. In order to be the basis for a
valid contract, the consent has to fulfill the following conditions:
It has to exist. Any act concluded in the absence of the consent will be declared new and void
It has to be externalized. The consent has to result from the words of the party or even from his/her
actions.
It has to be expressed by a person who is mentally competent to conclude the act.
It has to be expressed by a person who really intends to engage himself in a juridical relation
It has to be genuine.
According to our Civil Code there is no valid consent. If the consent was given because of mistake,
was taken by force of procured by fraud.

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Civil Obligations
The term obligation has 3 meanings:
1. lato sensu- its a juridical relationship that exists between a person , the so-called creditor who
asks another person, the so-called debtor to give, to do, or not to something for him
2. stricto sensu- its the exactly duty the passive subject has
3. the document that incorporates the creditors subjective patrimonial debt right and the debtor
correlative obligation.
The execution of civil obligations
Means: The debtor id bound to perform all services due to the creditor.
The creditor has the correlative right to ask for the debtor to give, to do or not to do something for him.
is called payment. If the debtor refuses to make the payment, the creditor may ask for the obligations forced
execution, either in kind or by equivalent.
Voluntary execution- the payment
From a juridical point of view, we understand by payment:
1. The voluntary execution of the obligations
2. A juridical operation, with the sense of convention, a juridical act concluded between the
solvents and the accipiens.
By paying the payment, the debtor pays off his relationship with the creditor.
Who can make the payment
1) The debtor is the first person bound to make the payment, personally or through hid representative.
2) Another person jointly bound with the debtor, a co-debtor or a fideiussor
3) By a third person interested in making it
4) A non interested person who wants to gratify the debtor- the debtor consent is required.
As a conclusion, the payment can be done by anybody, but the debtor is

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