THE SOURCES OF OBLIGATIONS UNDER THE NEW CIVIL CODE - Document (2024)

Author: Liliana Marilena Lazar

From: Contemporary Readings in Law and Social Justice(Vol. 9, Issue 2)

Abstract:

Civil obligation is the civil legal relationship under which aperson named debtor is liable towards another person, called creditor, togive, to do or not do something, under the sanction of state coercion in caseof intentionally failing to perform. According to the monistic conception,the obligation consists of a single legal relationship between creditor anddebtor. There are four components constituting the relationship ofobligations, namely: the subjects, the content, the object and the sanction.As far as the sources of obligations are concerned, the old regulation knewfour of them, namely: the contract, the quasi-contract, the offence and thequasi-offence; obligational relationships arising from the latter two wererelationships of civil liability for damage, to which the same principleswere applied. That classification was, however, criticized in the legalliterature, generating the emergence, in the doctrine, of some classificationproposals regarding the sources of obligations. Thus, in the current civillaw, the legal facts and the legal documents are considered sources ofobligations.

Keywords: legal relationship; debtor; creditor; legal documents;legal facts; deeds

Full Text:

1. Introduction. The Concept of Civil Obligation

Unlike the previous regulation, which did not define the civilobligation, being just referential to it, the new Civil Code defines inarticle 1167, the obligation as a legal bond under which the debtor isrequired to obtain a benefit for the creditor, and the last is entitled toobtain the due benefit (Pivniceru, 2012: 263). It results from the legaldefinition that the civil obligation is a legal relationship consisting oftwo components, one passive and one active, originating and existing betweenat least two persons.

Some authors have criticized the legal definition as itprioritized the passive component of the obligation, i.e. starting from thedebtor to the creditor and from the debt to the claim. Those authors wouldhave preferred that the legal definition had started from creditor to debtorand from claim to debt, arguing that the ownership and other real rights weredefined by attributes that they conferred upon their holder, and onlycorrelatively, by their general duty of abstention (Pop et al, 2012: 12). Theobligational legal relationship appears from the debtor's perspective,as a debt, and from the perspective of the creditor, as a claim. The right toclaim is part of the patrimonial assets of the creditor and the debt is partof the patrimonial liabilities of the debtor. Thus, the civil obligation canbe defined as the civil legal relationship under which a person named debtoris liable towards another person, named creditor, to give, do or not dosomething, under the sanction of state coercion in case of intentionallyfailing to execute (Filipescu and Filipescu, 2004: 15).

According to those authors who prefer that the order in definitionbegins with the creditor, the civil obligation is defined as the legalrelation where one party, called creditor has the legal possibility to claimto the other party, called debtor, to execute his performance or performancesto which he is bond, under the sanction of state coercion (Pop, 2006: 5).According to the monistic conception, the obligation consists of a singlelegal relationship between creditor and debtor; there are four componentsconstituting the relation of obligations, namely: the subjects, the content,the object and the sanction.

2. The Subjects of the Legal Obligational Relationship

The subjects or parties of the legal obligational relationship canbe both individuals and legal entities, as provided in article 25 NCC (on thesubjects of civil law). These are, generically, called, creditor and debtor,but in some varieties of civil obligations, they receive specific names, suchas, for example: seller, buyer, lessor, lessee, principal, authorized agent,donor, donee, lender in a commodate, commodater, etc. In principle, thesubjects of the legal relation of obligations are individualized from thevery beginning of the bond, but there may be situations when the activesubject is only determinable and not determined. This means that the activesubject will be, in the future, determined based on criteria established atthe beginning of the obligational relationship. Regarding the passive subjector the debtor, he should be always determined at the moment of emergence ofthe obligational relationship. In legal relations of environmental law, forexample, it is determined primarily the holder of the obligation of doing ornot doing something concerning the protection and improvement of theenvironment (Nicolau et al, 2010: 14). Concerning the determinable activesubject, an example is the situation of the legal bond that is generated bythe life insurance contract in favor of a third party (first grandchild to beborn), when the creditor or third beneficiary will be determined only whenthe insured risk will occur (Pop, 2006: 20).

As we know, most of the legal obligational relationships arebilateral: each subject is at once both creditor and debtor. For example, inthe case of a sale-purchase contract, the seller is creditor of the price anddebtor of the obligation to deliver the asset sold, and the buyer is creditorof the right to request the delivery of the asset purchased and debtor of theprice to be paid. However, there are also unilateral legal relations in whichone party is only creditor, and the other is only debtor. For example, in thecase of the legal relation emerged from a contract of donation, the donee isexclusively creditor and the donor is exclusively debtor (Pop et al, 2012:14).

3. The Content of the Legal Obligational Relationship

The content of the legal obligational relationship consists ofclaim rights and duties of its subjects. The legal content is, thus, made upof the legal possibility of the creditor to claim, and of the debtor'slegal duty to perform or execute the performance due (Pop et al, 2012: 15).As we have seen above, legal obligational relations can be bilateral, inwhich both subjects have simultaneously rights and obligations, but they canalso be unilateral, meaning that just one party has rights, and the other hasonly obligations. The active component is made of claim rights, and thepassive component consists of personal obligations or correlative duties (ofgiving, doing or not doing something that he/she could have done if he/shehad not been committed). Usually, the content of the legal relationship ofobligations is subjective, meaning that it is determined by the will ofparties (obligational relations arising from legal documents), but there arealso cases where the content of the legal relationship of obligations isobjective being determined by the imperative law (obligational relationshipsarising from legal facts causing damage) (Pop et al, 2012: 15; Pop, 2006:21).

4. The Object of the Legal Obligational Relationship

The object of the obligation is represented by the performance orthe actual conduct to which the creditor is entitled and of which the debtoris liable and may consist of a positive performance (to give, to do) or anegative action or abstention (not to do something) which in the absence ofthe assumed obligation would have not existed. The object of the legalobligational relationship should not be confused with its content as thecontent of the legal relationship of obligations includes legal possibilitiesto claim and legal duties to perform certain actions or inactions, and theobject includes specifically those actions or inactions, that the creditor orthe debtor may claim and the debtor is bound to perform (Pop, 2006: 29).

The object of the legal relationship of obligations is notidentical with the object of the contract, because as we mentioned above, theobject of the legal relationship of obligations is represented by the veryconduct or performance that the creditor may claim and the debtor is bound toperform, but the object of the contract is the legal operation thatcontracting parties are aiming to perfect through that contract. Thus,separate legal rules are applied to those two objects (Pop et al, 2012: 16).In this respect, from the interpretation of article 1225 paragraph 1 andarticle 1226 NCC, it is clear that the object of the contract is differentfrom that of the obligation. Thus, under article 1225, paragraph 1, theobject of the contract is represented by the legal operation, such as thesale, lease, loan and others, agreed by the parties as revealed by the set ofrights and contractual obligations (Baias et al, 2012: 1286-1288).

Depending on their object, there are positive and negativeobligations, but they are also classified in obligations of giving, doing ornot doing, all of which will be analyzed below. According to article 1226par. 2 NCC, under the penalty of absolute nullity, the object of the legalrelationship of obligations must be determined or at least determinable andlawful. The validity terms of the obligation's object result from theanalysis of this article. In other words, the performance must meet twovalidity conditions, namely: to be determined or at least, determinable andlawful.

5. The Sanction of Obligations

The sanction of obligations, considered only partly by thedoctrine, as part of the legal relationship of obligations, consists of allthe legal means that subjects of the legal relationship of obligations mayexercise in order to obtain the performance or the release from liability.

Thus, the sanction of the obligation is, from the creditor'spoint of view, the ensemble of offensive and defensive legal means that hecan exercise, usually by using the coercive force of the state in order toobtain or keep the performance that it deserves from the debtor, and from theperspective of the other party, the debtor is represented by the legal meansavailable to him under the law, to be debt free by executing the performancedue when the creditor refuses or is unable to receive it, the debtor beinginterested to quash the obligational relationship through execution (Pop etel, 2012: 18).

The offensive and defensive legal means within the reach of thecreditor are: formal notice to the debtor, comminatory damage, comminatoryfines, moratorium damages-interests, legal action and enforcement.

Legal means to which the debtor is entitled, in order to bereleased from the debt consist of his prerogatives to put notice on thecreditor, the debtor's right to register the respective asset at theexpense of the creditor (in case the benefit due is the delivery of an assetand the creditor refuses unjustifiably to receive it), and if the asset isperishable or the storage to a third party would require high maintenancecosts or high expenses, and the registration would be unfeasible, then thedebtor may use the sale by public auction and the record of the priceobtained, but only provided that there are previous notification of thecreditor and permission of the court.

Regarding the negative obligations of not doing, they generate nodiscussion whatsoever, meaning that any performance of this type is liable ofexecution against the will of the creditor since he cannot fight in any wayagainst its execution.

6. Sources of Obligations

The old regulation knew four sources of obligations, namely: thecontract, the quasi-contract (business management and payment of the unduework), the offence and the quasi-offence, the obligational relationshipsarising from the latter two, being relations of civil liability for damage,to which the same principles were applied. This classification was, however,criticized in the legal literature, generating the emergence, in thedoctrine, of some classification proposals for the sources of obligations(Filipescu and Filipescu, 2004: 22-24).

In the current civil law, the legal documents and the legal factsare considered to be sources of obligations. The legal documents consist ofa*greements or unilateral manifestations of will between two or more persons,with the intention to produce legal effects that would not otherwise occur.They are divided into contracts and unilateral legal documents. Article 1166NCC defines the contract as the agreement of wills between two or morepersons with the intention to establish, modify or quash a legalrelationship.

The unilateral legal document is according to article 1324 NCCthat legal document containing only the declaration of intent of its author.Civil legal facts are those circ*mstances, other than agreements andunilateral manifestations of will, whether human behaviors or not; the lawlinks to their occurrence, the emergence, amendment or termination of thelegal obligational relationships. Thus, the civil legal acts are divided intolegal facts--licit or illicit human conducts and legal facts that do notconstitute human conducts. Regarding the legal facts--illicit human conducts,they are those human actions or inactions caused by the breach of mandatoryrules of law. This category includes the civil liability for damage.

Regarding the legal facts--licit human conducts, they are thosehuman actions that do not breach the mandatory rules of law. Businessmanagement, undue payment and unjust enrichment are included in thiscategory.

Legal facts that are not human conducts consist of manifestationsthat do not originate from any human action, but which produce legal effectsand so may give rise to, modify or quash legal obligational relationships.This category includes natural phenomena--earthquakes, lightning, floodsetc., derailing a train, the scare of an animal, a boiler explosion, etc.

The new Civil Code, article 1165 provides that the obligationsarise from the contract, unilateral act, the business management, the unjustenrichment, the overpayment, the illicit act and from any other document orfact to which the law binds the birth of an obligation. The analysis of thetext reveals that the legislature intended expressly to list only thosesources of obligations, which are undisputed. As it can be seen, thelegislature included in the legal enumeration, the unjust enrichment and theunilateral legal document as distinct, independent sources. The wording atthe end of the text according to which obligations may also arise from anyother document or fact to which the law binds the birth of an obligation,allows the inclusion in the category of obligations, of other sources offacts or circ*mstances stipulated in other texts of the Civil Code, as wellas in other laws except for those expressly enumerated and named in article1165 NCC. Such circ*mstances stipulated in the new Civil Code, such as:damages caused by the animals and things that we have in our legalguardianship (article 1375 to 1377); damages caused by the ruin of a building(article 1378); but, there may be added also other circ*mstances which areset out in the provisions of some laws, such as damages caused by defects ofproducts marketed (Law no. 240/2004) ; damages caused by judicial errors(article 52 par. 3 of the Constitution, article 96 of Law no. 303 on thestatute of judges and prosecutors and article 505 Procedural Criminal Code).

REFERENCES

Baias, Fl., Chelaru, E., Constantinovici, R., and Macovei, I.(2012), The new Civil Code. Commentary on articles (Article 1-2664),Bucharest: C. H. Beck Publishing House.

Filipescu, I. P., and Filipescu, A. I. (2004), Civil Law. Thegeneral theory of obligations, Bucharest: Universul Juridic Publishing House.

Nicolau, I., Rascanu, A., and Anghel, I. M. (2010), Elements ofenvironmental law, Constanta: Punct ochit Publishing House.

Pivniceru, M. M. (2012), The new Civil Code and previousregulations. Comparative presentation, Bucharest: Hamangiu Publishing House.

Pop, L. (2006), Treaty of civil law. Obligations. Volume I.General legal regime, Bucharest: C. H. Beck Publishing House.

Pop, L., Popa, I.-F., and Vidu, S. I. (2012), Treaty of civil law.Obligations under the new Civil Code, Bucharest: Universul Juridic PublishingHouse.

LILIANA MARILENA LAZAR

lilianalazar2013@gmail.com

Spiru Haret University