cks 2015 privat law art.037

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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 of2009, 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 aandthe 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 isundoubted 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 arerevealed, 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 legalrelationship, 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 code2as being

that lawful relationship, whereby the debtor is boundto 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

Assistant Lecturer, PhD Candidate, Faculty of Law, Nicolae Titulescu University of Bucharest ( e-mail: [email protected]; [email protected]).

1Alin-Adrian Moise, The New Civil Code. Comments per articles. Art. 1-2664, Coordinators Fl. A. Baias, E. Chelaru, R. Constantinovici,

I. Macovei, C.H. Beck Publishing, 2012, Bucharest, p. 1215;2The Law no. 287/2009 on the Civil Code, published in the Official Gazette of Romania No. 505/2011;3C. Sttescu, C. Brsan, Civil Law.General Theory of Obligations, ninth edition, revised and supplemented, Hamangiu Publishing, 2008,

Bucharest, p. 1;4

Liviu Pop, Ionu-Florin Popa, Stelian Ioan Vidu,Basic Civil Law Treatise. Obligations Pursuant to the New Civil Code, Universul JuridicPublishing, 2012, Bucharest, p. 12;5Coordinator Marilena Uliescu, The new Civil code. Studies and comments. IIIrd Volume. Ist Part. Vth Book. About obligations (Art. 1164-

1649), Universul Juridic Publishing, Bucharest, 2014, p. 15;

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 activesubject, called creditor,has the right to request from

the passive subject, called debtor who has thecorresponding duty to give, to do or to not dosomething, subject to the sanction of state compulsion,

unless the action is performed willingly3.

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 compulsion4.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 debtorand its duty

related to the creditors right. Such duty of the debtor

represents the passive component of the obligation.

Nowadays, it was stated5 that the term

obligation has three meanings. Thus, besides the lato

sensu meaning aforementioned, stricto sensu, theobligation is considered as being that duty of the

passive subject, the debtor. The third meaning of the

term obligation is that the obligation represents thedocument itself, incorporating the claim right and the


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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 theexistence of that category of obligations known as

imperfect civil (ornatural) 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 due6.

1. 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 creditors right consists in theright to request from the debtor the fulfillment of a

certain duty, which may consist ofgiving, doingor not

doing something, while the debtors obligationconsists 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 creditors claimright is among its active side of the patrimony, while

the debtors duty is in the passive side of its patrimony,

6Alin-Adrian Moise, op. cit., p. 1216;7Real 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;8Art. 1786 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;

hereby resulting the patrimonial content of the

obligation.3. The object of the obligation.

The object of the obligational relationship

consists of the actionor inactionthe debtor is obliged

to and that the creditor may request.

Therefore, the object of the obligation mayconsist either of a positive action (to give or to do

something)or of an inaction, a negative action (not to

do somethingthe 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 doand not to do something.

The obligation to givemeans the obligation of

create or transfer a real right7, such as, for example, the

sellers obligation to transfer to the buyer the propertyright.

We may say that the obligations to doare thosepositive 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 lessors obligation to make available to thelessee the property that is the object of the leaseagreement8 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 mentionthat the obligation not to dodoes not refer to a negative

general obligation, such as, for instance, the obligationof the undetermined passive subjects of the property

right, who have the obligation not to do anything that

might affect the owners right9.Therefore, we may say that there is an obligation

not to do somethingwhen, 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 aconstruction 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 theobligation is considered by some authors as the fourth

element of the obligation. The sanction arises usuallywhen the debtor does not fulfill willingly its obligation

and it consists in the creditors 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


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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 inmoney owed by the debtor for remedying the damagecaused 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 damages10.

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 toreimbursement 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, itis 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) thenotification of default of the creditor. Thus,

pursuant to Article 1510 of the Civil code, the creditor

may be notified of default if refusing without groundsthe payment duly offered or refusing to perform the

preliminary acts without which the debtor is not ableto fulfill the obligation.

If the creditor is notified of default, it take overthe 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 thedamages caused by delay and to cover the expenses on

the preservation of the property owed (Article 1511of 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 suchobligation may not be fulfilled because of the

ungrounded refusal of the creditor. In such case, thedebtor may consign the property at the expense and

risk of the creditor, thus being discharged of its

obligation. However, if the nature of the propertymakes consignment impossible, if the property is

perishable or its storage involves maintenance costs or

considerable expenses, the debtor may start the publicsale 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].

10Compensatory damagesare 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;11G. Boroi, L. Stnciulescu, Civil institutions under the new regulation, Hamangiu Publishing, 2012, Bucharest, p. 169;

Further, if the property is listed on the stockexchange 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 unilateralact, management of other persons interests, unjustenrichment, 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 betweentwo 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. 13241339, Civil code).c) Negotiorum gestio (called also management of

other persons interests) is basically the operationwhereby 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

latter11. Negotiorum gestio is regulated by the Civil

code, art. 1330-1340.

d) Unjust enrichment (art. 1345 1348 CivilCode) 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. 1341 1344 Civil

code) means the fulfillment by a person - the debtor

(solvens) for the benefit of another person thecreditor (accipiens) of an obligation they were not

bound to and that they fulfilled without the intention to

fulfill someone elses obligation.f) The unlawful act as a source of the obligation-

based 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 thatobligational 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. 1349 and 1350

Civil Code, of two kinds: tort and contract.


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Bogdan NAZAT 263

g) Besides all these sources, we should

mention12:- civil liability for the damages caused by flawed

products put in circulation, governed by the Law no.

240/2004 on manufacturers liability for damagescaused by flawed products, republished13;

- 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 knowsseveral 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 themanner 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 situationwhen 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 debtoris 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 obligationsof diligence or obligations of prudence and diligence,

are defined under Article 1481 par. (2) of the Civil

code as being those obligation within which thedebtor is bound to use all the means required for

achieving the outcome promised. Thus, we maydefine 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 expected14.

c) perfect civil obligations and imperfect civil

obligations. The perfect civil obligation is theobligation that is sanctioned by the law, namely the

12

L. Pop, I.-F. Popa, S. I. Vidu, op. cit., p. 48;13The Law No. 240/2004 was republiushed in the Official Gazette of Romania No. 313/2008;14G. Boroi, C. A. Anghelescu, Civil law course. General Section, Hamangiu Publishing, 2011, Bucharest, p. 69;15G. Boroi, C. A. Anghelescu, op. cit., p. 71;

creditor may be helped by state coercion for its

fulfillment, if the debtor does not willingly fulfill theassumed 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 factthat its fulfillment may not be achieved by means ofenforcement 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 andpropter remobligations. 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 obligationsbinding 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 thecreation 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 categoryis justified by the need for example to facilitate the

existence of some relationships of good neighbors, toprotect things of national importance, to use or

preserve the qualities of some important things15.

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, civilobligations 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 andindivisible 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 non-

pecuniary civil obligations, whose object is any other

performance than an amount of money. This lastclassification may be made depending on the object of


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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 underanalyse.

References

The New Civil Code. Comments per articles. Art. 1-2664, 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. 1164-1649), Universul Juridic Publishing, Bucharest, 2014;

C. Sttescu, C. Brsan, 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. Stnciulescu, 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 manufacturers liability for damages caused by flawed products;

Law. No. 71/2011 regarding the enforcement of the Civil code;

Romanian Civil code of 1864.

cks 2015 privat law art.037

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