Arhive civil code - 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.