October 2018 - Quick Consulting

Judicial divorce based on guilt

There are two cases of divorce at the court of one of the spouses:

-because of good reasons, spouses are seriously injured and marriage is only possible

at the request of one of the spouses, after a split in fact that lasted at least 2 years

Conditions

– the existence of sound reasons; that is, misunderstandings between spouses of a certain severity and duration; and not simple misunderstandings

-This reason has seriously harmed the relationship between husbands

– due to serious harm to spouses, the continuation of the marriage is no longer possible

The notion of sound reasons

– the unjustified refusal of one of the husbands to live with the other

– the unjustified departure of one of the spouses

-infidence of one of the spouses

– Inappropriate attitude of one of the spouses (acts of violence and the like)

– the existence of physiological mismatches

– the existence of an incurable serious illness of the parried husband, whose manifestations make cohabitation impossible; justifies the applicant’s refusal to cohabit.

– moral conduct, materialized in the act of breaking the family

Other circumstances that can not be grounds for divorce

-section in fact can not justify divorce; unless it is due to the culprit of the parted husband

– Ensuring that the spouse did not contribute to the maintenance of the household

The role of the culprit

– if there are sound reasons that make it impossible to continue marriage;

-the divorce can be settled on the sole fault of one of the spouses

– if the court finds the fault of both spouses can undo marriage from the common guilt regardless of the spouse who introduced the application

– if one of the husbands is attributed to the entire guilt; the innocent husband may ask the guilty husband to compensate him if he suffers harm by breaking marriage

-the marriage may not be terminated if the applicant’s fault is established; and the party did not make a counter-claim

Continuing the divorce action

– when the court pronounces divorce on sound grounds; if the applicant’s spouse dies during the trial, his heirs may continue the divorce

-continued action by heirs is admissible only if the court finds out the exclusive fault of the spouse

-the divorce act can not be continued by the heirs of the applicant’s spouse or against the spouse’s heirs.

Divorce for separation in fact

-that is the only possibility of marriage from the applicant’s fault

-one of the divorce terms for the divorce; separation in fact of more than 2 years

-the divorce must express the natural remedy of the situation presented to the judge

Establishment of culpability

-the divorce is pronounced on the sole fault of the applicant’s spouse

– There is a situation where your spouse agrees to divorce; in this situation no mention is made of the fault

Judicial divorce due to a husband’s health

-the divorce can be requested by the sick husband and also by the husband injured.

– the disease condition consists of alienation or mental debility to be a reason for divorce;

– the disease condition must have occurred during marriage

– If the disease condition exists at the end of marriage, the sanction is nullity

– The marriage proceeding is pronounced by the tutelage court without mentioning the guilt

-the disease state excludes the idea of ​​guilt

Inventory Compensation

-The material competence belongs to the judiciary

-the territorial jurisdiction belongs to the court from the circumstance of the last common spouse’s domicile; if the spouses have no common place or no longer reside in the circumscription of that judge, the jurisdiction belongs to the court in the circumscription of the domicile of the court; when the paratrooper is not domiciled in the country and the Romanian court has international jurisdiction, the jurisdiction of the district of the applicant’s domicile is competent.

– if none of the spouses live in the country, they may agree to bring the application to any court in Romania; in the absence of such a competent agreement belongs to the District 5 Court.

October 2018 - Quick Consulting

Divorce by husband’s consent to marital status

– is also called divorce by the spouses’ agreement on the administration; or in the current speech people call this kind of divorce, “divorce at the City Hall”

Foundation

-this divorce is an application of the principle of symmetry of forms; as the marriage ends in front of the civil status officer on the basis of the consent of the spouses; so divorce can be obtained. However, the special conditions provided by the law must be observed.

Admissibility conditions

-the free consent of the two spouses

– There is no need to have minor children of spouses

Spreading the consent of the spouses

– must necessarily look at the divorce itself; as well as its effects on the names that the wives will wear after divorce.

-Soons can agree to keep the name worn during marriage or to take every name before marriage.

– if the husbands understand about divorce but do not understand about the name; the civil status officer will give a decision rejecting the divorce request; will guide the spouses to address the court.

-requiring the divorce application; is explained by the fact that the name solution must be established with the demand for divorce as an immediate effect.

– if the spouses do not understand the accessory requests, they will be settled by the court (home, compensatory benefit, maintenance pension)

Procedure

– the marital status officer is competent at the place of the marriage or the last common dwelling

– the divorce request is filed by both spouses, it can not be by the trustee

-the marital status officer records the request and gives them a 30 day reflection

– on expiry of this term the husbands are present in front of the civil status officer; he breaks off the marriage on the basis of the consent that will be verified to be free and unwise

-when divorce husbands divorce the marital status officer frees the divorce certificate without mentioning the husband’s fault

Mention in the act of marriage

– when the divorce request is filed at the place where the marriage ended; the civil status officer will make mention of the marriage act

– in case the application is submitted to civil status in the territory of the last spouses’ last domicile; the civil status officer issues the divorce certificate; forward a certified copy of it to the mayoralty of the place where the marriage ended.

Divorce by husband consent by notary procedure

-constitutes one of the innovations of the Civil Code, the solution being in principle compatible with the non-contentious, graceful nature of the notarial procedure.

Admissibility conditions

– there are no special conditions

– It is also allowed when the wives have children

Spreading the husband’s agreement

-the husband’s agreement must look at both the divorce and some aspects of the accessories; the surname to be worn by divorced spouses and if there are minors; aspects relating to the exercise of parental authority such as:

Joint exercise of parental authority
establishing the minor’s home
how to keep personal ties between the separated parent and each of the children
establishing parents’ contribution to children’s education and care (maintenance pension)

Procedure

– Competence belongs to the public notary at the place of the marriage or the last common house of the spouses.

– the divorce request is filed by both spouses, and the notary gives them a 30 day reflection

-The request can also be filed by a trustee through an authentic power of attorney

-the expiry of the 30-day spouses are presented personally; the notary public checks whether the spouses are going to divorce and if the cosmos is free and unwise

If children are minors:

– there must be a social investigation report; from which it follows that the spouse’s agreement is in the best interests of the child.

-The child’s hearing is mandatory if he / she is at least 10 years of age

Finally

-the admission of the divorce request; if all the conditions are met, the notary issues the divorce certificate.

-the note will issue a copy of the divorce certificate to the marital status where the marriage took place. The Marital Status Officer will mention the act of marriage.

– if the divorce conditions are not met by administrative means; both the notary and the civil status officer may reject the divorce request.

Divorce by marriage agreement by court

-can be pronounced irrespective of the length of marriage and whether or not there are children.

-the court is obliged to verify the existence of the free and unjustified consent of each husband.

Spreading the husband’s agreement

-Soons can give their consent to all aspects of divorce

-sons can agree on divorce; and for the other heads of claim leave the court to decide.

Divorce based on common husband request

-The request is signed by both spouses or by a special proxy. if the trustee is a lawyer, he will certify the husband’s signature

-the court will verify the existence of the consent of the spouses; after solving the request in the council chamber

Divorce based on the request of one of the husbands accepted by the other husband

– when the divorce request is made on the basis of the culprit of the spouse; and he acknowledges his deeds, the court will undo the marriage without investigating or making a statement about the guilt.

– if the claimant does not agree with the divorce, the application will be settled according to Article 934

October 2018 - Quick Consulting

Divorce

Unlike the right to marry, the right to divorce is not protected by the ECHR.

Any state can adopt a regulation that forbids divorce. There has been a question of breaking the right to marry by banning divorce. The answer of the European court was negative, it does not recognize the right to divorce.

Divorce systems

a) divorce remedy – which is not conditional on the fault of one of the spouses at the dissolution of marriage, but the impossibility of continuing the cohabitation

b) divorce sanction – which is pronounced as a sanction for the culpable deed of one of the spouses. Divorce can not be pronounced against the innocent husband. It can be obtained even when marriage has not become impossible. The condition is the culpable conduct of one of the spouses.

c) the mixed concept – which combines the two systems, ie it also presupposes a culpable act of one of the spouses and the impossibility of continuing marriage.

Our legal system through the Civil Code embraces the mixed concept.

Divorce regulation

Since 2011, the Civil Code goes further with the idea of ​​amicable divorce. It was possible to carry it out by notary, even if there were children.

At that time, a new divorce case was settled by court. At the request of one of the spouses after a separation in fact of at least 2 years, on the sole fault of the applicant.

In the new Civil Code, the divorce remedy was developed, this amicable divorce, by relieving the courts. If the parties understand every aspect, the divorce can be done by the exclusive notary.

Cases of divorce

According to art. 373 of the Civil Code, the divorce may take place: by the consent of the spouse, at the request of both spouses or of one of the husbands accepted by the other husband; when due to good reasons the spouses’ relations were severely affected and the continuation of marriage is no longer possible; at the request of one of the husbands assuming their exclusive guilt after a split in fact that lasted at least 2 years; at the request of one of the spouses whose state of health makes it impossible to continue marriage.

The reasons for divorce are quite popular:

-napposition of characters

-the separation of the husband’s roads

-differences of moral values

– simply, the wives are no longer willing to continue their marriage

Divorce by husband’s consent

-to the administrative route (to the civil status or to the City Hall as it is spoken in popular language)

-the administrative path to the notary

-the court case (at the court)

Divorce based on guilt

– Divorce based on solid reasons

– divorce for separation in fact at least 2 years

What happens after marriage?

Non-patrimonial effects

– the exact date of the divorce (the date on which the court’s decision was final)

– the names of the spouses after marriage (it returns to the name before marriage if the parties do not decide otherwise or on demand keeping the name after marriage)

-capacity of exercise (16-year-old minor loses exercise capacity if he was in bad faith)

– the mutual obligations of the spouses (between

– One of the spouses can have some effects on him

Patrimonial effects

-checking the matrimonial regime

– the right to compensation (after the situation if a harm is suffered by the innocent spouse)

-compensatory benefit (if the innocent spouse is affected by the way of life)

– the right to inheritance ceases after the marriage is dissolved

Effects between parents and children after marriage; parents’ obligations towards children remain unchanged.

Tips and opinions

To make the divorce procedure more efficient, we can recommend our law services. Under no circumstances is the presence of a lawyer mandatory but effective. The civil status and the notary may seem almost useless but you can be easily fooled if you are not familiar with the legal field. You can first agree with certain aspects whose consequences you do not foresee.

In case of representation in the court, things are much more complicated. Any Omk is free to stand alone in the courts. But no one will help you, when you file a petition to the court and until pronounce you need to know what to do.

Often, a lawsuit may be lost from submitting a misdirected request or some form errors. A call to sue is not a standard. You have to make a composition according to a certain format, adhere to certain standards and rules of formulation. I do not refer to an elevated or legal language, I refer to rules that are learned in specialized faculties.

October 2018 - Quick Consulting

Extensive prescription

Elimination of debts or obligations is not possible, but extinct prescriptions may draw the ineffectiveness of the exercise of the coercive power of the state. That is, one who requests the court to execute an obligation or to make a payment after the deadline has been fulfilled; may be rejected. The person against whom the action is directed may claim the fulfillment of the term of the extinctive prescription.

Definition and regulation of extinctive prescription

– is that sanction that consists in extinguishing the material right to non-exercised term in time.

– Right to action means the right to constrain a person with the help of public forces. (exercise of the right by court)

-prescription can not be invoked ex officio even in those situations in which it would be in the interest of the state.

– any clause by which a right would have been declared imprecise, although prescriptive under the law, or vice versa, is prohibited.

-upon the fulfillment of the mandatory prescription period may refuse to execute the obligation.

-If the person who could not be compelled to execute, however, performs his obligation of good will not be able to claim the refund for the undue payment.

Principles of Extinctive Prescription Effect

1) With the extinction of the right to action on a principal subjective right, the right to access rights is also extinguished.

2) If a debtor is subject to successive obligations, a distinct prescription for each of these benefits will flow. Even if the debtor continues to execute one or more of the benefits due; unless the successive benefits form, by their purpose, as a result of the law or convention, a unitary one.

-prescription of the right to action on the principal claim does not attract the right to the right to the ipotacar action.

The scope of extinctive prescription

– Debt rights in principle are prescriptive

-rights to act on a patrimonial object are prescriptive unless the lege otherwise provides

-the actual accessory rights are subject to the extinctive prescription following the same rules as the main law besides which they are. The right of the mortgage is prescriptive only that it does not comply with the principle accessorium sequitur principale.

Prescription of the main real rights

1) Major real rights are subject to extinctive prescription unless the law otherwise provides

-the action in the real estate claim (the avulsion, claim of the property adjudged in the forced execution)

-action in claiming lost animals on another’s land

-the confessional action that seeks to defend the right of usufruct

– the action in defense of the right to administer the right of concession and the right to use free of charge

2) Non-writable rights:

-request action based on private ownership (unless otherwise provided by law)

-request action based on public property law

-action having as object the establishment of the right of passage on the background of the neighbor of the owner without any access route

-action sharing

– Negative action

– the confessional action by which a superficial right is defended

-activity in granite

-the heredity of heredity

Non-patrimonial rights

– the general regulation regulates that they are imprecise but there are exceptions regulated by law

Extensive prescription terms

– the general prescription term is 3 years

– There are numerous special prescription terms regulated by law

– the prescription leakage may be suspended by general or special causes; the term is interrupted throughout the case and resumed at the end of the case

– the prescription deadline may be interrupted; that is, the term is interrupted at the occurrence of the cause and when it is terminated, another prescription term

General causes of suspension

1) Between spouses during marriage

2) Between parents (curator) and those lacking in capacity for as long as protection lasts

3) Among persons who, through any act, administer or are administered the rights (goods)

4) In the case of the lacking capacity it is not represented

5) as long as the debtor hides the existence of the debt

6) for the entire duration of the negotiations if they have taken place over the past 6 months

7) If the law tutor is part of the armed forces and is in a state of mobilization

8) If the person against whom the prescription runs is in a state of impossibility of force majeure (temporary is calculated only for the last 6 months)

Special Suspension Causes

There are several cases covered by the Civil Code and other laws, for example:

1) The prescription does not flow against the heirs as long as they have not accepted the inheritance

2) He was not named a curator on the inheritance

Causes of interruption of prescription

1) By an act of execution or recognition

2) By filing a petition to sue

3) By establishing as a civil party in the criminal proceedings

4) by any act through which the one in whose favor the prescrp is flowing is delayed

5) In other cases provided by law

October 2018 - Quick Consulting

In the Civil Code, Article 1246 paragraph (1) provides that; “any contract concluded in breach of the conditions required by law for its valid conclusion shall be null and void if no other sanction is provided by law”. Nullity can be defined as a sanction that lacks legal effect,

Features characteristic of nullity

-It’s a civil law sanction

-looks only jidly acts and not the facts

-interval when the terms of validity of the contract are breached; of form or substance

-consists in the lack of a legal act of the effects that contravene the legal norms

– the legal act is deprived only of those effects which are contrary to the purpose of the disobedient legal provision

– the toughness can be covered

Functions of nullity

The prefentity function

-constates the inhibitory effect it exerts on civil law issues. Sometimes tempted to conclude acts without complying with the conditions of validity. Thus knowing that the act will be ineffective, the parties are discouraged and urged to abide by civil law.

Sanctioning function

-instruments when the preventive function has not proven effective. It consists in removing the effects of the legal norms that are prescribed for the valid conclusion of the act.

As conception, nullity can be partial and remedy.

Classification of the nullity of the legal act

Absolute nullity

– is that sanctioning the non-observance, at the conclusion of the civil legal act, of a legal norm that protects a general interest. So of an imperative legal norm of public order. Of course, which establishes a condition of validity for the conclusion of the legal act.

Relative nullity

– is the one that sanctions the non-observance at the end of the civil legal act that protects individual interest. So, an imperative legal norm of private order, which establishes a condition of validity for the conclusion of the civil legal act.

Partial nullity

– is that nullity that completely dissolves the legal act.

– is that nullity that only dissolves some of the effects of the civil legal act, the other effects being maintained, as they do not contradict the law.

Expressive nullity

– designates that nullity that is, as such, provided for in a legal provision. Most nullity is part of this category. They are provided either in the Civil Code or in other normative acts.

Virtual nullity

– designates that nullity that is not expressly prescribed by law. But non-stop, from the way in which a certain condition of validity of the civil legal act is regulated.

Under Art. 1253 of the Civil Code, the sanction of nullity must be enforced so that the purpose of the disobedient legal provision is attained.

Unnecessary background

– is that nullity that occurs in the case of the lack or invalidity of a substantive condition of the civil legal act. Nullities in this category are the most numerous in practice.

Nullities of form

-It is that nullity that occurs in case of non-compliance with the required form and validity. Example: Art 1041 C. Civ. “Under the sanction of absolute nullity, the handwritten testament must be written in full, dated and signed by the testator’s hand.”

Amicable nullity, legal nullity, legal nullity, and terms considered unwritten

– the injunctions can be established with the consent of the parties, without legal effect without having to address the jurisdiction. There are situations where the parties do not understand; or it is a legal act that can not be ended by a symmetrical act.

Absolute or relative absolute does not work properly. The legal act enjoys a presumption of validity, and this presumption can be removed in court. We can not talk about a finding of absolute nullity or a distortion of relative nullity. Nullity is invoked by an act of living. Although in reality the act of nullity is an act of accomplishment.

– exceptionally, the terms considered unwritten can be considered absolute nullity; and partial but operating lawfully.

Causes of nuisance

– violation of legal provisions on civilian capacity

-Lexibility or invalidity of consent

-valueability of the object of the civil legal act

-value the cause of the civil legal act

-Description of the form required by law and validity

– the limitation of the limits of the principle of the freedom of legal acts

– non-observance of other special conditions required for the valid conclusion of certain legal acts

Causes of absolute nullity

a) Based on express legal provisions

b) For violating the validity conditions

Causes of absolute nullity

a) Based on express legal provisions

b) For violating the validity conditions

The legal regime of absolute nullity

-can be invoked by anyone of interest, by the court of its own motion, by the prosecutor and other competent bodies

-It is impressible and can be invoked at any time

-in principle can not be covered

Causes of relative nullity

-It is a civil legal act that can not be annulled when the legal provisions on enforceability have been violated. Violation of the cosmictamant and other cases provided by the law may result in relative nullity.

-the virtual bugs regulate the situation in which; if a private order is sanctioned, the sanction is the relative nullity.

The legal rhythm of relative nullity

-can be invoked only by the person protected or having an interest

-to prescribe within the time-limit provided by law or by exception, is imprescriptible

-can be covered by express or tacit confirmation

Effects of nullity

-retroactivity of nullity

-analysis of subsequent acts

-restricting the previous situation (in kind or by fair and equitable compensation)

For these effects, there are exceptions expressly provided for in the Civil Code in various matters of law.

October 2018 - Quick Consulting

Legal act in Romania, manifestation of will or, as the case may be, willful consent with the intent to produce legal effects, that is, to give birth, to modify or to extinguish a concrete civil legal relation

Classification

– unilateral, bilateral or plurilateral legal acts, depending on the number of parties between which the act ends
– legal fees for consideration and free if they pursue a pecuniary interest or not
-legal constitutive, translative and declarative acts
1) the constitutive legal act is that which gives birth to a civil law subject that did not exist previously

2) The translative legal act has as a consequence the transfer of a subjective right from the patrimony of a person to another person’s patrimony.

3) the declarative legal act is that which has the effect of consolidating or finalizing a pre-existing civil subjective right

-accounting legal acts, legal acts of administration and legal acts of provision
1) the preservation act prevents the loss of a civil subjective right, it is always an advantageous act for its author.

2) the act of administration puts a normal value on a good or property

3) the legal act of disposition is that which results in the removal of a right from the patrimony or the real burden of a good.

-consensual and solemn legal acts, differ according to the form of legal act (solemn or without any special form)
– patrimonial or non-patrimonial legal assets if it has valuable money or not.
-recipes and accessories
– legal acts between vivid and legal acts for causes of death
– subjective legal acts and civil legal acts, the content of the act is determined or undetermined, for example an act condition is marriage, where the parties can not deviate from the norms that regulate it
-right and simple legal acts (unaffected by term or condition) and acts affected by modalities
– civil legal names called and unnamed, if it has a name or not

Terms of civil legal act

-conditions of the civil legal act are those components that must or may be included in the structure of the civil legal act, ie the elements from which it is constituted

Classification of the civil legal act
-conditions of form, refers to the exteriorization of the will or will of the parties
-conditions of substance, concern the content of the legal act
– Essential terms and nonessential conditions
-conditions of efficacy,
-conditions of validity, shall be sanctioned with the nullity of the legal act

Ability to conclude legal acts and the exception of incapacity
-capacity of use and exercise capacity
-in the capacity of use no one can be absent except in the cases expressly provided by the law
-existing incapacity for exercise and inability to exercise
1) general incapacity
2) special incapacity
3) incapacity for certain legal acts

consent
-removing the decision to conclude a legal act
a background condition
-it can be:
1) Minutes
2) in writing
3) through gestures or conclusive facts
– Exceptionally, silence is worth consenting in the following cases
when stipulating the law
when the parties have expressly attributed this aspect
if it is in accordance with custom or use

Principles of legal will
-the principle of freedom of will
-the principle of the real will (it takes into consideration the desire of the parties not the literal meaning)

Requirements for the validity of the consent
– to come from a person with discernment
– be serious
– be freely expressed
– be expressed with the intent to produce legal effects

The vices of consent are as follows:
-error
-violence
-dolul
-leziunea

Vices of consensus

Error

-high representation of some circumstances when concluding a legal act
– subjectively deformed image due to the deceased

-classification:
1) the essential error – if the false representation falls on: the nature or the object of the legal act which is concluded, the physical identities of the object of the performance, the substantial qualities of the object of the performance, the person or a quality of it in the absence of which the counter- concluded.
2) nonessential error – false representation of unimportant circumstances
3) Fault – a false representation of a factual situation
4) the error of law – represents the false representation of the existence or content of a legal norm
5) Excusable error
6) Inconclusive error

– the errors of essential error: the error is essential, it is an excuse, the element on which the false representation is to have been decisive in the conclusion of the act, in the case of bilateral or plurilateral legal acts, for consideration, it is necessary that the contracting party knew or should have to know that the fake element was essential to the conclusion of the respective civil legal act
The essential rotation in any of its forms draws relative nullity
– The act can be adapted avoiding the cancellation or can be terminated as the misunderstood part, thus covering the cause of the cancellation
– in the case of bilateral and plurilateral acts, it is not necessary for each party to be mistaken

Dolul

-the second is the vagueness of consent by which one of the parts is induced in an error caused by the fraudulent manipulations of the other party. The mere omission of informing the co-contractor about circumstances that he was willing to reveal is inconspicuous.
– error rate, in the case of the dollar it may be required to cancel the contract even if the error was not essential for the conclusion of the contract

-the doll’s structure
1) an objective element, which consists of misleading means used to mislead
2) a subjective element consisting of the intention to mislead a person to conclude a particular legal act

-the moles of the dick
1) to be decisive for the conclusion of the legal act
2) to come from the other side

-the penalty is relative nullity
-can be probated with any means of proof
– the victim can keep the contract with balancing obligations

Violence

-that is the vice of consensus that consists in threatening a person with an evil to produce, without right, a fear that causes him to conclude a legal act, which he would not have concluded.

-classification
nature evil: physical or moral
a legitimate, uninhibited threat and the unlawful threat that is sanctioned

The illegitimate threat is sanctioned if it is used to gain an unfair advantage.
-structure of violence
an objective element, which is the threat of harm
a subjective element that consists in inducing the fear of a threatened person
– the rage of violence: the fear inspired to be decisive for the conclusion of the legal act, the threat to be unjust, in the bilateral or plurilateral legal acts its threat comes from the other side or if it is from a third party, the co-contractor knew to have had to know violence committed in his favor.
-the penalty is the relative nullity of the legal act

Injury

-understand the material damage suffered by one of the parties as a result of the conclusion of a contract.
-the structure of the lesion
1) an objective element consisting in the disproportion between the contraptions
2) a subjective element consisting in taking advantage of the special situation in which the co-contractor is found
-Distinguish the injury to the minor where the disproportion between the contraptions is obviously diffused, and the major injury when we add an extra rule, one of the parties to take advantage of the state of need, the lack of knowledge or the lack of experience of the other party.
– the application

1) in the case of a minor:
to be a legal act
bilateral legal act, for pecuniary and commutative purposes
to be concluded with the minor between 14 and 18 years of age
to be detrimental to the minor
2) for major:
to be a legal act
bilateral legal act, for consideration and commutative regardless of whether it is administration or provision
one party to take advantage of the state of need, the lack of knowledge or the lack of experience of the other party
the action for annulment is admissible only if the value of the lesion exceeds half the value it had at the time of the conclusion of the contract
– the offense can attract 2 sanctions: the relative nullity or reduction, as the case may be, the increase of one of the benefits

Object of the legal act

-conduct of the parties established by that legal act, ie the actions or inactions to which the parties are entitled or are entitled
-the reasons for the validity of the object of the civil legal act
1) the object is determined or determinable
2) Subject to be legal
3) the object exists
4) Subject to be possible
5) Subject to be in the civil circuit
6) Subject to be a personal deed of the enforcer
7) the existence of the administrative or judicial authorization or of any other requirement stipulated by the law

The cause of the legal act:
-that to exist, be licentious and moral. The trial of the case is done by any means of proof. The cause is presumed to exist even if it is not expressly established until the contrary.
-the act of the act

Form of the legal act
-the principle of consensualism exists according to which the mere meeting of the parties’ will represents a valid conclusion of the contract
-form must be the form required for validity, opposability to third parties and probation of the act
-the legal form and the voluntary form of the parties
-form ad validity and ad probation form, that is valid and can be tested

The modalities of the civil legal act
-deadline:
1) the suspensive and extinctive term: the first postpones the beginning of the exercise of the right and the second determines the extinction of the right
2) term in favor of the debtor, the creditor or the other parties
3) Voluntary, legal and jurisdictional term
4) term with uncertain and uncertain maturity
-conditia:
1) suspensive and resolving condition
2) casual, mixed and potent condition
3) Positive and negative condition
– the burden, is a specific way to liberalities and consists of an obligation to give, do or not to do, imposed on gratifying by the disposer

The effects of the civil legal act
-the principle of forced forts
-revitability of the civil legal act

October 2018 - Quick Consulting

Determination, plurality and change of subjects of the legal relationship

Determining the subjects of the civil legal relationship
-knowing the parts of this report

The plurality of subjects of the civil legal relationship
-the civil legal port is established between a person as an active subject and another person as a passive subject
-the possibility of the existence of more people, either as active subjects or as passive subjects, thus speaking about civil legal relations with the plurality of subjects

Plurality of topics in real-world relationships
-the passive subject is made up of the plurality of other civil law subjects, less the owner of the property right. The active subject may be a person or may be made up of several people.

Plurality of topics in case of debt ratios

– pluralism can be active, passive or mixed

– divisible: it is the one that binds more creditors or more debtors, between which the debt or, as the case may be, the debt is divisible. The obligation is divisible between several creditors when each of them can claim from the common debtor only the execution of their part of the claim.
1) active divisibility – means that two creditors who have the same claim against a debtor can not ask from the debtor other than their share.
2) passive divisibility – if a creditor borrows two debtors, the creditor can not claim from the single debtor the entire amount.
3) Mixed divisibility – it is the situation where there are two creditors and two debtors, and each is held to give / receive only his / her part and not answer for another.

-the solidarity obligation: is one in which each creditor can ask the debtor for the entire debt or each debtor is held and may be forced to pay the entire debt.
1) active solidarity – the possibility for each creditor to ask the debtor to pay the entire claim
2) passive solidarity – consists in the possibility of the creditor to ask any of the coders to complete the performance of the obligation that is the subject of the obligation

Indivisible: is the one that, due to the express will of the parties or the nature of the object of the unsubstantiated obligation by its nature of material or intellectual division, can not be divided between creditors or between debtors.

Changing the subjects of the civil legal relationship

-the problem of changing the subjects of the civil legal relationship is only the case of patrimonial relations

1) Changing the person of the active subject of the mandatory legal relationship (change of the creditor)

– there are means directly or indirectly leading to change of creditor: assignment of debt, personal subrogation and novation by creditor change.
Assignment of the claim is the agreement whereby the creditor assigns to the transferee a claim against a third party.
The creditor who transfers the claim is called the transferor, the person to whom the claim is transferred is called the transferee, and the debtor of the credit claim is called the debtor who has been given.

By the effect of the assignment, the debtor’s new lender will be the transferee. The receivable that formed the object of the assignment remains unchanged, keeping its nature as well as the possible collateral accompanying it; the transferee becomes the creditor of the debtor divested to the nominal value of the claim regardless of the price of the assignment and even when the assignment was made free of charge.

Only the assignor and the transferee are parties to the assignment, so that for its validity, the consent of the debtor is not necessary, but, in order to be opposable, certain formalities must be fulfilled (notification of the assignment of the debt to the ceded debtor, acceptance of the assignment by the debtor divested by a filing date with a certain date, but in the relations between successive assignors of the same claim it will be preferred to the person who first registered the assignment regardless of the date of assignment or communication to the debtor) Any claim is transferable except for receivables declared by law.

Personal Subrogation

– is a way of legally or conventionally transmitting a claim to a third party who paid the original creditor instead of the debtor. The person who pays the debtor’s debt is called solvens, and the creditor who receives the payment is called accipiens.

As a result of personal subrogation, the solvency takes place (subrogates) the accipiens, so the initially active subject is replaced by another person, who becomes the new creditor of the same debtor. Solvens (the subrogate) acquires all the rights of the accipiens (the paid creditor), so he acquires the claim with all his rights and accessories, including any collateral accompanying it.

Novator
-when a creditor change is the substitution of a new creditor to the old lender, the debtor becoming bound to the new creditor and being released from the old lender.
It should be emphasized that, unlike the assignment of the debt and the personal subrogation, when there is a change of the creditor, but without transforming the initial claim (this is only transmitted), in the case of novation including the novation through the change of the creditor, the claim the old one goes out and turns into a new claim, having the new creditor.

2) Changing the person of the passive subject of the mandatory legal relationship (changing the debtor)

– a direct assignment of a debt assignment can not be achieved; which would involve the debtor’s alienation of his debt to a third party without the need for the consent of the creditor of that obligation. The creditor has the right to first check the solvency of the new debtor.

The assignment of the contract, a direct legal means of changing both the debtor and the creditor. The consent of the ceded contract, the consent that can be given with the assignment.

Novation by debtor change takes place when a third person engages the creditor to pay the debt. Such an operation may take place with or without the debtor’s consent.

Stipulation for another is the one contract stipulating a benefit from the other party for the benefit of a third party, without being the latter’s representative and without the third beneficiary participating in the conclusion of the contract. If the third beneficiary does not accept the stipulation, the Civil Code stipulates that his right is deemed never to have existed.

Seizure

– is a form of indirect forced execution; whereby the creditor tracks the amounts or effects that the debtor has to receive from a third party. The creditor pursuing those amounts is called the creditor; the debtor is called debtor, and the third party, who in turn is the debtor of the debtor, is terrified.

-in availability of the amounts or effects in the hands of the third party and the obligation to pay what owes the debtor directly to the creditor.

the whistleblower becomes the direct debtor of the lender; having to pay the sum to be charged only to him. Which means that an indirect change of the person of the passive subject of the obligatory ratio is accomplished by indentation. We mention that a new legal obligation relationship is born through indemnity (between the creditor and the third party); but not in all cases the two pre-existing obligatory legal relationships will be reached. (this is the ratio between the defaulting lender and the debtor who has been denied; which remains within the limit of the unpaid debt remaining after the third party has paid the creditor the lender; as well as the ratio between the debtor and the overpaying debtor, which remains within the limit of what is left after the third party has paid the lender creditor)

– a change of the passive subject can be reached, indirectly even through a assignment.
– the passive subject of the mandatory legal relationship may also be changed by inheritance; in the case of individuals, namely by: merger, division and transformation in the case of legal persons.

Civil capacity

-not representing the quality of being a subject of civil law
– Two elements: exercise capacity and usability
1) “ability to use” means the ability of a person to have civil rights and obligations
2) the ability to use is the capacity of a person to complete the only civil legal acts

The civilian capacity of the individual

-recognizable to all people

1) The ability of the individual to use
a) any individual has the capacity to use
b) no person may be deprived of this capacity except under the law
c) the beginning of the user’s capacity is mastered by the birth of the person
d) the content is given by the ability to have rights and obligations
e) the cessation occurs at the death of the person

2) The exercise capacity of the individual
a) Not all people have the ability to exercise, there are three cases: full, restless and without
b) exercise capacity is increased when the person is placed under the ban
c) persons who are married between 16-18 years of age; or by the court of guardianship can get the full capacity of the anticipated exercise
d) the cessation of this capacity can take place at the death of the person by prohibiting or canceling the marriage of the minor in bad faith

Legal capacity of the legal person

– the legal person is established: by the act of setting up the competent body; by the act of setting up its constituents, in any other way provided by the law

1) Usability
a) starts from the establishment of the company (subject to registration and not filed)
b) content is the ability to have the general and abstract aptitude to have rights and obligations
c) non-profit-making persons may have only those rights and obligations necessary to achieve the purpose established by law
d) the capacity to use ends with the termination of the legal person (dissolution); the finding or declaration of nullity, merger, transformation, dissolution, dissolution, total division, or other manner prescribed by law.

2) Exercise capacity
a) the legal person must participate in the civil circuit by concluding civil legal acts
b) exercise capacity is put into value by its management bodies
c) the beginning is marked by the establishment of the company
d) The end of the exercise capacity corresponds to the moment when it ceases to exist

October 2018 - Quick Consulting

The patrimonial or non-patrimonial social relation, governed by the civil law norm.

The legal report has three characters:

-is a social report – a relationship established between people
– is a volutional report – the norm is the will of the legislator (the state)
-the parties have the position of legal equality – the civil character that means that one party does not subordinate to the other

Structure of the legal relationship:

1) The parties, or the subjects of the legal relationship, are natural or legal persons, in the capacity of civil subjective rights or civil obligations.
2) The content of the civil legal relationship is given by all the civil subjective rights and civil obligations that the parties to the respective legal relationship have.
3) The subject of the civil legal relationship consists in the conduct of the parties, that is to say, in the actions or inactions to which the parties are or are bound to observe.

Sources:

A circumstance (act or deed) from which the civil law links the birth of a concrete civil legal relationship.
Classification of springs:
-human acts – legal acts with or without intent to produce legal effects
-products – circumstances that occur independently of the will of the subject of civil law and from which the civil law links the birth of legal relations.

Content of the civil legal relationship

Civil subjective right: the possibility of active subject, within the limits of civil legal norms, of having a certain behavior, of claiming the appropriate subject to the passive subject and, if necessary, of requesting the state coercive force contest.

Classification of civil subjective rights:

– absolute civil subjective rights and relative civil subjective rights. The absolute subjective civilian doctor is the right under which the holder can have a certain conduct without the need for another’s contest to exercise it. Relative civil subjective right is that right under which the holder can claim a passive subject for a particular conduct without which the right can not be achieved.
– non-patrimonial civil subjective rights and patrimonial civil subjective rights, that is, valuable in money or invaluable in money.
– principal civil subjective rights and civil subjective rights accessories, the principal has a self-contained existence, and the accessory has an existence that depends on a main right
– pure and simple civil subjective rights and civil subjective rights affected by modalities. The subjective civilian doctor is simply the one who confers maximum certainty on his owner, because neither his existence nor his exercise depends on any future circumstances. The subjective civilian doctor affected by the modalities is the one that does not offer the full security to the holder, in the sense that the exercise of his right or even his existence depends on a future, uncertain or uncertain circumstance. The term, condition and task are the modalities of the legal act, but from the point of view of the subjective rights affected by the modalities, we will only retain the term and the condition.

Exercise of subjective civil rights. Abuse of law

Civil subjective right must not be confused with his exercise. Exercising a civil subjective right is not mandatory. The exercise of the civil subjective right is governed by the following principles: observance of the law, observance of external and internal boundaries and good faith.
The abuse of law concerns only the last two principles of the four above, so one can speak of an abuse of law when its owner, in bad faith, dislodges him from his purpose, as it results from the interpretation of the provisions of art. 15 civil.
The civil obligation is a legal bond by virtue of which the debtor is required to obtain a benefit to the creditor, and he is entitled to obtain the due benefit.

Classification of civil obligations

1) Obligation to give, obligations to do and obligations not to do
-the duty to give is the duty to constitute or convey a real right.
– the obligation to do is to understand the duty to execute a work, to perform a service or to teach one thing.
-the duty not to do is to oblige the passive subject to refrain from action or certain actions.

2) Positive civil obligations and negative civil obligations
Positive obligations are: the obligation to give and to do
-the negative obligation is the obligation not to do

3) Obligations of result and means of action
-requirements are those obligations which consist in obliging the debtor to obtain a determined result.
-Management obligations are those obligations which consist in obliging the debtor to put all the urge to achieve a certain result without committing himself to the expected outcome.

4) Ordinary civil obligations, obligations in rem and obligations
– the ordinary civil liability is the one that endures the debtor to whom it was born; in other words, to be executed.
– the scriptae in rem is characterized by the fact that it is closely related to one thing, so that the creditor can realize his right or only if the current holder of the real right over the respective work will be obliged to revoke that right, although it does not directly and personally to the formation of the obligatory report.
– the proponent is the duty which, according to the law or even the convention of the parties, belongs to the owner of the work, for reasons such as the protection of things of national importance, the judicious exploitation or the preservation of some qualities of important things, the existence of good neighborly relations.

5) Perfect civic duties and imperfect civil obligations
– perfect civilian duties are those obligations that fully enjoy the legal sanction, meaning that if necessary, the creditor can obtain the coercive force contest of the state for its execution.
imperfect civil imperatives are those obligations whose enforcement can not be enforced by force, but, to the extent that the debtor wouldfully execute it, the latter has no right to claim the return of the benefit.

The subject of the civil legal relationship. The goods

-conduct of the parties, that is, the action or inaction to which the active subject is guided and by whom the passive subject is kept.

The goods

-to designate both the things and the rights to them
– Only goods that have patrimonial rights may be designated as assets

Classification of goods

-mobile goods and movable goods: by their nature, by anticipation, by the determination of the law.
– goods in the civil circuit and goods taken out of the civil circuit
-fungible goods and unhealthy goods if they can (or will not) be replaced
-consumable goods and non-combustible goods
– fruity goods and non-fruit goods, whether or not they are civilian fruit producers
– tangible goods and incorporeal goods
– divisible goods and indivisible goods
– main goods and accessories
– Public goods and private goods
-conceivable goods and insidious goods if they can be forced or not

Parties to the civil legal relationship
Two categories of civil law subjects: natural and legal persons
-both spouses’ common goods and own property

October 2018 - Quick Consulting

The application of civil law is divided into two categories: the application of civil law over time and the enforcement of civil law in space.

1. Applying civil law over time

In civil code Art.6 paragraph (1) provides that civil law shall apply as long as it is in force. Problems arise when civil laws succeed, and at that point we have to take into account two principles:

-the principle of the nonretroactivity of the new civil law.

-the principle of the immediate application of new civil law, except for the ultraactivity of the old law.

The principle of nonretroactivity of civil law is the principle according to which a civil law applies only to the situations which have arisen in practice after its entry into force, and not to the previous situations.

Immediate application of new civil law and exception to the old law’s ultraactivity:

– understands the rule of law that, as soon as it is adopted, the new civil law applies to all situations arising after its entry into force, excluding application. Exceptional ultraactivity of old civil law. What is the enforcement of old civil law in some of the cases, although a new civil law has entered into force.

Nonretroactivity criterion

– the fact that the acts of constitution, modification or extinction of legal situations, carried out in full before the new law comes into force, and the effects produced by that legal situation before this moment can be applied only the old law.

-pact pendentia, ie the legal situations undergoing training, modification or extinction at the date of its entry into force, the new law will apply.

-the futu futures, ie the legal situations that will be born, modified or extinguished after the coming into force of the new law, as well as the future effects of the past legal situations, will apply the new lege.

a) The law applicable to the legal act

-application of the law in force on the date of conclusion of the legal act, not only in terms of validity or nullity, but also for other matters related to the conclusion of the legal act, for other causes of ineffectiveness, for the rules of interpretation of the act, for the effects of the legal act including those produced after the entry into force of a new law), for the execution of the obligations assumed by the parties to terminate the legal act.

Nullity or other cause of ineffectiveness of the legal act (for example: inopportunity, caducity, revocation, resolution, etc.) is subject to the law in force at the time of conclusion of the act.

Example:

-the validity of the marriage concluded before the date of entry into force of the 2009 Civil Code is established according to the provisions of the law in force at the date of its conclusion.

-the validity of the inalienability clause established by convention or will is governed by the law in force at the date of the conclusion of the convention or will.

-results that the common property in devaluation may have as its source the legal act only for legal acts concluded after the entry into force of the 2009 Civil Code.

b) The law applicable to extinctive prescription and decadence

-extensive prescriptions started and completed under the previous regulation are not subject to the provisions of the new law; because they represent past legal situations. Extensive prescription in all aspects: start, deadline, suspension, interruption, re-assignment.

c) The law applicable to access, usucapion and possession -accesiunea:

1) natural animals apply to situations born after the entry into force of the Civil Code; in all cases where the artificial real estate access implies the exercise of a right of option by the landlord, the effects of the access are governed by the law in force at the time of accession.

2) the access is subject to the law in force on the date of the occurrence or the perpetration of the circumstance or the act that attracts the incidence of the accession, and, for the hypothesis of continuous deeds, the law is in force at the start date.

-use, started and unfulfilled at the date when the new law enters into force, are entirely subject to the legal provisions that have established them. Hypotheses:

1) If ownership has begun under the authority of previous regulation, then this regulation is applicable to usucapion.

2) if the possession of a real estate started after the 2009 Civil Code entered into force, but at the commencement of possession there was no land book for the building, the usucapion is subject to the provisions of the 1864 Civil Code.

3) If the possession of a real estate started after the entry into force of the Civil Code in 2009 and at the commencement of the possession of a land book was opened for that building, usucapion is governed by the provisions of the 2009 Civil Code.

4) the mobbing, under the conditions of Art. 939 Civil Code 2009, may be invoked only if the possession started after the entry into force of the 2009 Civil Code.

Art. 939 Acquisition of the movable good under uzucapion
Whoever possesses the good of another for 10 years, under conditions other than those provided for in this section, may acquire the right to property on the basis of uzucapion. The provisions of art. 932 par. (2), art. 933 and 934 apply accordingly.
Possession, in addition to the provisions relating to one of its effects (uzucapion). The interference of detention in possession is subject to the law in force at the date of the occurrence of the intervention case.

d) The law applicable to the dismantling of the right of private property Subject to the provisions of the 2009 Civil Code, only the superficial right established after its entry into force. The right of usufruct (as well as, for identity of reason, the right of use and abdication, these being usufruct varieties) the rule that its exercise, after the entry into force of the 2009 Civil Code, is governed by the new regulation.

e) Applicable Law on Land Book The provisions of the new regulation regarding the proof of the property right with the land book extract for the immovables registered in the land book shall apply only after the completion of the cadastral works for each administrative-territorial unit and the opening, upon request or ex officio, of the land books for the respective buildings , until then the land registration of property rights and other real rights, based on the acts by which they were transmitted, constituted or modified in a valid manner, being made only for the purpose of opposing third parties.

f) The law applicable to legal deeds as sources of obligations Obligations arising out of non-contractual legal acts are subject to the provisions of the law in force at the time of their occurrence or, as the case may be, their perpetration. Non-contractual obligations born prior to the entry into force of the Civil Code are subject to the extinction modes provided by the Civil Code. In the case of business management, the law in force on the date on which management started is applied. That is, at the time of the first material or legal act, with the intention of guiding the interests of another. Undue payment is governed by the law in force on the date it was made. That is, the date when the solvency was executed. Unjust enrichment is governed by the law in force at the time when the circumstance that led to the non-taxable, but not legal, enrichment of a person at the expense of the misery of another person. The ways of extinguishing the obligations born on the basis of business management, undue payments and unjust enrichment fall under the incidence of the law in force at the time of the extinction.

g) The law applicable to illicit deeds as sources of obligations Liability for unlawful deeds causing damage is governed by the law in force at the time of committing the illicit deed.

h) Applicable law on inheritance Legal inheritance is governed by the law in force at the date of the inheritance. That is, at the date of death, of which heritage is concerned.

i) The law applicable to future effects of other past legal situations As with legal acts, the future effects of other legal situations are governed, as a rule, by the law in force at the time of their commission or production.

j) The law applicable to guarantees The establishment of guarantees is governed by the law in force at the date of establishment; irrespective of the law in force at the time when the application for the validity of the constitution was formulated or solved.

Apply civil law to space

According to Art. 7 para. (1) The Civil Code applies throughout the country unless otherwise stated, and the normative acts adopted, according to the law, by the local public administration authorities and institutions shall apply, as art. 7 paragraph (2) of the Civil Code in their area of ​​territorial jurisdiction.

Apply civil law on people

– civil law deniers are subjects of civil law, so individuals and legal entities.

Interpretation of civil law

Civil law is made in such a way that it is applied to multiple situations. Thus, ads can be formulated generically, and terms have different meanings. These include a broad range of meanings. Especially in the legal field. Society is evolving, and we have to interpret civil laws to find out if certain laws can apply to new situations emerging in everyday life.

Classification of interpretation of civil law rules

1) Interpretation according to the organ or the person from whom it originates, – may be the official interpretation from the organ that issued the norm, or from the jurisdictional body (a court)

2) literal interpretation, extensive interpretation and restrictive interpretation. – there is a full concordance between the law and the practical situation. The text can be narrowly formulated so an expetable interpetation can be applied. When the wording is too broad, restrictive interpretation may be applied.

3) grammatical interpretation, systematic interpretation, historical-theological interpretation and interpretation by analogy. – clarification of the norm based on the rules of grammar. Accounts of norms of interpetition are taken into account with other legal norms. We also need to keep in mind the ultimate aim of the legislator in a historical context. The formal logic and the argumentation system on which it relies, where the same reasons exist, the same legal rules must be applied.