Sie sind auf Seite 1von 11

The Juridical Civil Relation

The Civil Law is the branch of the law that establishes some patrimonial relations in
which the parties are subjects equal in rights and some non-patrimonial relations connected to
a persons individuality.
The patrimonial relations deal with the real relations, such as the right to property,
and with the contractual relations.
The non-patrimonial relations contain the relations regarding the integrity of the
subjects of Civil Law (e.g. the right to reputation, life, freedom). The non-patrimonial
relations also contain the relations regarding identification (e.g. the right to a name, to a
residence). The non-patrimonial relations contain the relations generated by the intellectual
relations (copyright)
All these patrimonial and non-patrimonial relations are regarded by the civil legal
rules. They are therefore known as the Civil Juridical Relations.
The Civil Relationship is a social relation established by norms of the Civil Law. The
social relationships become juridical relationships through the action of legal rules.
According to this definition we may say that the civil juridical relation has the

The civil relation always has a social character. It is a connection between persons. A
civil juridical relation is always a social one even if it is not obvious sometimes. Even
the civil juridical relation that arises in case of the right of property is a connection
between the owner and the rest of the society. All the other persons, the rest of society,
have the general duty to do nothing in order to disturb the exercising of the right.
The juridical relation is always regulated by legal rules. Therefore there are social
rules which are not juridical relations in the same time. Not all social relations are
interesting for the state.
In order to crate a juridical relation there have to exist a legal fact or a legal act which
are known as the sources of juridical relations.
The juridical acts, as a source of law, are expressions of somebodys will.
They are made with the specific purpose to create, to modify, or to end a
juridical relation (e.g. contracts). The juridical acts have the power of law
between the parties that concluded them.
The legal facts can be divided according to the human will involved, into:
1. Natural facts. In case of natural facts we have some events from nature
or society whose creation or existence does not depend on the human
will. They are completely independent from the human will (birth, acts
of God caz de forta majora).
2. Human actions. Human actions are those which depend on the human
will. The intention of the person is not to produce the legal effect, in
such a case we dont have a juridical law.

If all these conditions are concluded at the same time and fulfilled at the same time a
social relationship becomes a juridical relationship between persons, the so called parties of
the civil juridical relation. They have the position of equality.
Each juridical relation has 3 elements of structure: the subjects of the juridical
relation, the content of the juridical relation, and the object of the juridical relation

The parties (subjects of the juridical relations).

Due to the fact that a juridical relation is always a social one, only persons may be
subject to such a relation, either as individual or collective. As subject of a civil juridical
relation a person may have one of the following positions:
He/she may be an active subject of a juridical relation. An active subject is a person
who has rights within the civil juridical relation.
He/she may be a passive subject to a juridical relation. A passive subject is a person
who is obliged to do or not to do something within the juridical relation.
In a contractual relation the active subject is called the creditor and the passive
subject is known as the debtor. Very often the parties of a juridical relation can hold at the
same time both positions. They can be subjects of rights and obligations at the same time.
The persons may be regarded as individuals (natural persons) or they can be regarded
as collective persons (legal persons).

The natural persons. Any human being may be regarded as a subject of law.
He/she may have rights and obligations. This feature may be put into light by a specific
concept, the concept of legal capacity. The legal capacity has 2 elements:
1. The abstract capacity. It is the persons faculty or aptitude to have rights and
2. The concrete capacity. It is the persons ability to actually exercise the rights and to
assume the obligations. It covers the aptitude to conclude civil contracts.
The abstract capacity of a natural person has the following features:

Universality. Any person has abstract capacity.

Generality. The abstract capacity of a person includes the faculty to own any rights
and to have any obligation.
Legality. Exclusively the law provides the abstract capacity. It may never be regulated
by contracts.

When does the abstract capacity begin?

Since the abstract capacity is granted under the law to each human being, it begins at
the very moment of birth. Somebody may be considered as a person, as a subject of law even
before its birth. He/she may be recognized as a successor. Our Civil Code provides that a will
is not valid unless the designated heir does exist in the moment of the death of the testator.
Whenever a baby not yet born is designated as the beneficiary of the will he/she is considered
to exist and to already be a person even though he/she will be born in the future. In this case a
person can get only rights. This anticipated abstract capacity is only recognized only if the
baby is born alive, otherwise he is considered as if he never existed, and as if he never had
abstract capacity.
When does the abstract capacity end?
As a rule the abstract capacity ends at the death of a person. If the body of the dead
person exists, there will be no problems in considering the abstract capacity as finished. A
special problem arises when the person disappears. From a juridical point of view it is very
important to establish if the abstract capacity of a person continues of it ends.

The procedure in such a case is the following:

After at least one year from the moment of disappearance the interested persons can
begin an action in disappearance announcements. A special statement of the court is
required. The court names an official guardian of the estate that belongs to the person
who disappeared and also takes some measures of publicity. The rule says that the
disappeared person has to be considered as being alive, therefore having the abstract
After at least 4 years from the moment of disappearance the interested persons may
bring a second action in death announcement. From this moment the abstract capacity
of a person is considered finished. If the person appears the second death
announcement he will be put in the same position as he was before his disappearance.
The goods that are in the possession of the heirs will be returned. If the person
reappears and the wife/husband had remarried, the second marriage will be considered
as valid.
Only the law may limit the abstract capacity. The law may limit it for 2 purposes:
1. The abstract capacity may be limited in order to protect somebody or in order to
sanction somebody. Our Criminal Code provides some complementary penalties. Such
penalties prohibit not only to exercise some rights, but also to own them.
E.g.: 1- A person who has been found guilty for a crime related to a certain profession
is forbidden to profess in the same field.
2- The interdiction to vote or to be elected for a person who has committed
certain crimes.
3- A minor cannot make a will naming as beneficiary his own guardian in order to
protect him
The concrete capacity. A person can be in a position of owning a right but not being
able to use it. The concrete capacity may be defined as being somebodys ability to sue or
to be sued and to enter into a binding contract (to conclude a contract into his/her
name). We may say that the concrete capacity is the abstract capacity + discernment.
Discernment = to see clearly
From a legal point of view the discernment is the mental ability to understand the
nature and the effects of somebodys acts.
The concrete capacity is granted according to the Romanian Civil Law at the age of
18. At this age it is presumed that the human being has the capacity to understand his/her
actions and to decide what to do. At the age of 18 the person is considered by the law as being
an adult.
This presumption made by the law is in the same time rebutable and non-rebutable.
A rebutable presumption is one which no evidence, however strong, no argument, no
considerable evidence will be permitted to prove that an underage person (e.g. minor of 17)
does have compatible discernment and is able to realize the consequences of his acts.
The same presumption is rebutable in the sense that its acceptable to prove that a
person, however mature has no discernment.
The law regulates the existence of an intermediate period from 14 to 18 years. The
period is named the period of restricted concrete capacity.
During our lives we go over 3 distinct periods of time:
1. The person has no concrete capacity. Minors of less than 14 years are subjects of
incapacity of exercise. They must be represented by a legal administrator, usually
their parents or a guardian. People under 14 cannot validly contract. Their contracts

must be made by their legal representatives. There is, nevertheless, a certain category
of acts which can be concluded by the minor itself, without his guardian/parent. It is
the category of acts of a day to day nature.
2. The period of restricted concrete capacity. From 14 to 18 years minors can
conclude some juridical acts by themselves. They need the assistance of their parents
in order to conclude other acts. There are a number of acts which cannot be ever
concluded by minors. We may have 3 categories of acts:
acts that can be concluded by the minor himself. Acts of day to day nature
acts which are concluded in order to manage the minors property. The minor can also
conclude by himself an employment contract after the age of 16. from 15 to 16 he/she
will need a preliminary consent.
acts that can be concluded only with the assistance of a parent/guardian.
The minor can conclude in these circumstances sale contracts. There is a distinction
between the representation of a minor after 14 and the assistance of a minor. In case of
representation the minors juridical will is substituted by the parents will. It means
that the minor under 14 doesnt sign the contract at all. In case of a minor between 14
and 18, in case of assistance the minors will is only completed by the parents will. it
means that the minor has to sign the contract.
acts that cannot be concluded by minors. Minors cannot conclude, not even
with the assistance of parents, donations and he/she cannot guarantee for others
3. The period of fully concrete capacity. After 18 a person has fully concrete capacity.
By exception a woman can marry from the age of 16, obtaining by this way fully
concrete capacity(e.g. a mentally disturbed person who cannot understand the nature
of an agreement is considered as having no concrete capacity and his affairs are
handled by a court appointed guardian.
Each specific civil relationship is established between its parties, subjects of law. To
identify the parties of a juridical relation is to distinguish them one from another and from
other persons participating in other relations. The identification of a natural person can be
achieved through his identification of attributes (e.g. the name, residence, civil status). From a
legal point of view these attributes are personal and not patrimonial rights of any person, of
any natural person.
The identification of a natural person has the following juridical characteristics:
First they are absolute rights, impersonal in front of anybody (erga omnes). Therefore
to these rights it corresponds a general obligation of all other persons to obtain from
any non-observance of the rights.
They are strictly related to the person who holds them. They are personal. As a
consequence they cannot be exercised by representation.
This kind of rights cant be evaluated in money. They dont belong to the patrimony of
a natural person
As a consequence of these characteristics any person can claim in front of a judge the
stopping of the fact which has damaged one of his non-patrimonial rights. Those who suffered
a damage of such a right may also claim the court to oblige the author of an unlawful action to
fulfill any necessary measures considered by the court for reestablishing that right. If the
author of the unlawful action does not fulfill in due time, established by the court, these facts,
meant to reestablish the damaged right, the court may oblige him to pay in the states interest
a fine for each delay (dauna cominatorie).

The legal person. A legal person is an entity such as a corporation, a company,

an association created by the law and given certain legal rights and duties of a human
Companies and other legal persons have their own personality, separated from that of
the shareholders, or directors, or members, or even of other companies in the same group.
Even if a company is totally dominated by one shareholder the company and the shareholder
are distinct persons. In other words a legal person is a legal entity with rights, privileges, and
liabilities distinct, separated from those of the individuals who invest money in it.
There are two consequences of the separate legal identity of a company:
1. A company can sue and be sued in its own name.
2. A company can make contracts in its own name.
Its members cannot claim the benefit, nor can they be subject to the burdens,
obligations of such contracts.
The main constitutive elements of a legal person are the following:
1. The organization. The legal person has its own organization. The companys internal
structure is usually divided into different departments (production, research,
marketing, etc.). Since there is a huge diversity of internal structures and there are no
imperative rules for this matter, any internal structure is allowed by the law.
2. The patrimony. The company has its own patrimony. It is distinct from the
patrimonies of its members. The patrimony can be defined as being a juridical
universality which includes the rights and the obligations with patrimonial character
which belong to a subject of law and also includes the goods to which these rights and
obligations are referred to. Each subject of law has its own patrimony and only one. It
means that the patrimony is unique. In order to be a subject of law, different from
other subjects of law, a legal person has to have its own patrimony. This patrimony is
separated from the patrimony of other legal persons of from the patrimony of natural
or legal persons who compose it.
3. The goal (purpose). The legal person has its goal or its own object of activity. It has
to be lawful. The purpose of the legal person justifies its existence as a subject of law.
The principle of the specialty of the abstract capacity. The natural person has the
aptitude to own any right and to have any obligation. A legal person may own only those
rights which are meant to achieve the established purpose.
This rule is the rule of specialty of the abstract capacity. According to this rule any
juridical act which has been concluded for another purpose than the one originally
assumed by the legal person is null and void. Any juridical act concluded outside the object
of activity may produce no effect.
The law provides that a legal person can have only those rights and obligations which
correspond to its aim established by the law or by the constitutive act. Normally the object of
activity is expressly mentioned in the constitutive act of the legal person. These constitutive
acts outline how the organizations board of directors will operate, specify the size of the
board, the selection of the board members, the number of board meetings, and the purpose of
the organization.
There are 2 types of legal persons:
Legal persons of public law
Legal persons of private law

The distinction between these kinds of legal persons is made regardless of the nature
of the capital. It doesnt matter if the capital belongs to the state or to the particular private
persons. The important thing, the criteria is the nature of the rules that regulate each kind of
legal person. Therefore a company whose shareholder is the state is still a private legal person
because it functions according to private rules. Political parties are legal persons of the public
One of the public legal persons is the state itself. It is considered a legal person
whenever it participates in its own name as a subject of law in juridical relations. Usually the
state participates as a legal person on the international level within public international
economic relations. But sometimes the state may be part of the private juridical relation. (e.g.
It may participate to a juridical relation as a debtor in order to repair the damages caused by
an illegal arrest or judgment; The state may participate in a juridical relation of property, the
state may be an owner. The state may participate even to a relation of inheritance; it may
collect all the vacant legacies, any fortune with no successor.)
The legal persons of private law may be classified according to the purpose mentioned
in the constitutive act. The purpose may be:
Patrimonial commercial companies
Non-patrimonial associations, foundations, labor unions, church.
Even a legal person constituted in a non-patrimonial goal for a non-patrimonial person
has a patrimony and may develop some economical activities. The profit it gains is never
returned to the members. It is always used for the non-patrimonial goal (cultural, artistic, and

The content of the juridical relation

It is the main element of the juridical relation which includes rights of the active
party and obligations of the passive party, sometimes only one of the parties has the
position of the debtor and only the other one is the creditor (e.g. borrowing contract one
of the parties will be the debtor, the other one being the creditor).
There are some civil juridical relations in which both parties have at the same time
rights and obligations (e.g. the selling contract both parties have the double quality of active
and passive party). In such a case the rights are interdependent and mutual.
The content of a juridical relation has 2 components:
The active party which includes the rights
The passive party which includes the duties
The active element. The right is the juridical possibility recognized by the law to a
person to have within the limits of the law a certain behavior and to pretend to the other
persons, as passive subjects, one of the 3 things: to give, to do, not to do something.
To give to transfer a real right (the right of property)
To do to perform a certain activity, a positive action in favor of the active party (e.g.
the obligation of the employee in the benefit of the employer)
Not to do the obligation of the passive subject to refrain to do something that he is
otherwise entitled to do (the clause of non-competition)
The rights can be classified based on their content in patrimonial and nonpatrimonial rights.
In case of patrimonial rights we have debt rights and real rights.

1. Debt rights. The active party is the creditor and he can pretend to the other party
(debtor) to give, to do, or not to do. Both subjects are known from the beginning.
2. Real rights. Are those rights according to which their owners can exercise the
attributes to the goods without the intervention of another person. In case of
patrimonial rights with an economic content. They can be evaluated in money.
The non-patrimonial rights are those with no economic content (e.g. right to life,
In case of a real right only the active subject is determined. We only know the active
side. In the passive side we include the whole society, all members of the society. Thy will
have the general obligation to do nothing in order to disturb the real right. Real rights are
rights connected to goods.
In case of the debt right we know both subjects. We know the active subject (the
creditor), and the passive subject is also determined from the beginning, from the moment
when the contract has been concluded.
There are 3 elements of distinction:
Only in case of the debt right the passive subject is known from the beginning
Real rights are limited in number. They are expressly provided and regulated by the
law. The debt rights are unlimited. They are at the simple imagination of the parties.
They may create any contract according to their interest.
In case of a debt right the corresponding obligation may be to give, to do or not to do.
In case of a real right the corresponding obligation is always not to do.
The first kinds of obligations to give, to do are positive obligations, they consist of
actions. The last one, not to do, is a negative obligation. It consists in an abstention, in
refraining from doing something. It may correspond, to a debt right and real right. Its content
is different in each case. The negative obligation which is corresponding to a debt right has a
precise content. It belongs to a certain person. The negative obligation which corresponds to a
real right has an undetermined content and it belongs to an undetermined person. By not to do
a person refrains from doing an action that is not forbidden by the law (e.g. the debtor can sell
by concluding the contract though his own will has limited his right).
The most important distinction between the debt rights and the real rights is that the
debt rights are relative rights, while the real rights and the non-patrimonial rights are
absolute rights.
The relative right. According to it the definite active subject (the creditor) has the
possibility to pretend from the definite passive subject a certain behavior. A relative right is
only opposable to a definite person (it is opposable erga certam personam).
The absolute rights. They are civil rights according to which the established owner
has the possibility to exercise it alone and all the other persons have the general and negative
obligation not to do something that could jeopardize the owners right. The juridical relation
that contains an absolute right is established between the owner, as definite active subject and
all the other persons as passive subjects. We may say that and absolute right is opposable to
all persons (opposable erga omnes). It means that everybody has to observe the owners
absolute right. The real rights and all the non-patrimonial rights are very similar
E.g.: Property right and the right to a name. They can be exercised in front of
everybody. In both cases we have an active subject who exercises the right alone. Both are
opposable erga omnes.

Real rights may be:

1. Principal real rights. They dont depend on any other rights. They are self sufficient.
E.g. Property rights. The property rights include 3 prerogatives: the possession, the use,
the disposition. Since the property is a complex right it may be dismembered into
components, and the rights which result are named dismemberments of property (e.g. It
is possible to separate the disposal prerogative from the other two prerogatives. A certain
person can possess and use the good and another person can dispose of it. The
dismemberment is called usufruct in this case). The dismemberments have the same
configuration as the property right itself. They are real, principal, and absolute rights.
The owner (active subject) may be a private person (a rule) or a public person (the
In case of private property the owner can be any person, any individual, or legal person,
or even the state.
In case of public property the owner can only be the state or the local authorities.
2. The accessory rights. They depend on a debt right. In this cathegory we may include
the mortgage and the pledge.
The mortgage has 2 meanings:
It is a contract between the parties
It is a right (real, patrimonial, absolute right)
According to our Civil Code the mortgage contract can be concluded between an
owner of a real estate which is in the same time the debtor and his creditor. The mortgage is
considered to be in the same time a real right, on the affected property constituted as a
corporal security to the payment of a an obligation. Upon the Civil Code the mortgage can be
constituted not only on the basis of the contract but also on the basis of the law.
There are 2 kinds of mortgages:
The legal mortgage. E.g.: It can be found in the law regarding the financial
administrator. The employment contract in their case can be concluded only
constituting a certain mortgage.
The conventional mortgage. It is that net imposed by the law but concluded between
parties as a an expression of their own interests.
The mortgage contract has the following characteristics:
1. It has an accessory character. Its existence depends on the existence of the principal
2. The mortgage has a formal character. It means that the mortgage contract may be
concluded only in an authentic form required by the law for the validity of the
The mortgage right has the following characteristics:
1. It is a real right. It is a real right because it may be exercised directly on the real
estate. If the debtor doesnt pay his obligation to the creditor, the real estate will be
sold in a public auction and the creditor will see his claim covered from the price
obtained through this auction. Even if the debtor, the owner of the real estate, sells the
house, the land to a third person the creditor has the possibility to ask for this public
2. It is an accessory right. If the debtor fulfills his obligation the mortgage is instantly
extinguished. It cannot survive being an accessory right. In case of a mortgage the
principle of specialization is applicable. If there are more than one claims of the
creditor, the mortgage has to be specialized.

3. It is indivisible. Even if the debt has been partially paid, the mortgage over the whole
estate continues to exist until the final payment of the debt.
4. It has an estate character. Unlike the pledge, the object of a mortgage can only be a
real estate. In case of a pledge the objects may be goods. The debtor has to be the
owner of the real estate in the moment of conclusion of the contract. But the mortgage
has not as consequence the dispossession of the debtor. The debtor will be able to
exercise all his prerogatives resulting from his property rights. He also has the right to
alienate the real estate. As a consequence the auction of the real estate is possible even
if it is now under somebody elses property.
In conclusion:
The active subject has 2 rights:
A debt right - opposable only to the debtor the right to pretend the payment
A real right opposable to any person who would be the owner of the estate at the
moment of the settling day. The real right is accessory; it depends on the debt right. If
the debtor will make the payment, the mortgages will com to an end.

The object of a juridical relation

The object of a juridical relation is the action to which the active subject is entitled
and to which the passive subject is liable. Whenever the content of a civil juridical relation
includes a real right, the object of such a relation is connected with goods.
Classification of goods.
From a juridical point of view, goods are any things which have an economical
value and which can be objects of a property right.
Goods can be:
Movable. The movable goods by their nature are those which can be transported from
one place to another, either by themselves or those that can be moved with the help of
a foreign force. There are as well goods movable by anticipation. This category
includes goods that are immovable rights now, but considered by the parties as
movable, because they will become movable in the near future. E.g.: harvests fruit
that are not yet picked up.
Immovable (real estate). The immovable goods are those which cannot be
transported, either on their own or by another energy. According to our Civil Code
lands and constructions are immovable by their nature. It is usually admitted that the
word constructions refers to all works built on the ground or underground.
In case of non corporal goods the movable or immovable character is given by the law
itself. E.g. In case of a real right having as object a real estate, the law may say that any action
in front of the court is itself an immovable good.
The publicity conditions requested in case of selling of a real estate are provided by
the law in imperative rules. According to the Civil Code the possession in good faith of a
movable good is equivalent with property. The buyer in good faith of a movable good can
acquire the property even if the seller is not the real owner.
Original owner

Temporary holder (detentor precar)

According to this contract the Original Owner delivers the goods in the hands of the
Temporary Holder. The other party assures the obligation to return the goods after a certain
period of time. Instead of fulfilling the obligation the temporary holder sells the goods to a
third party, as if they were the owner.
If the buyer is in good faith (has no idea about the fact that the seller is not the real
owner), then he (the buyer) becomes the owner of the goods.
The Original Owner can only claim damages from the Temporary Holder, on
grounds of the contract concluded between them.
1. This rule is not applicable in case of immovable goods.
2. This rule is not applicable whenever the buyer has no good faith (knows that the
other is just a temporary holder).
3. The rule is not applicable whenever the goods were lost by their owner or stolen
from him. It is only applicable in case of a contract between the Original Owner
and the Temporary Holder.
Following the regime of legal circulations there are:
Goods on civil circuit. Are all those goods that can be objects of civil juridical acts.
Some of them can be sold only with observance of some conditions (e.g.:gems, toxic
substances). However all of them may be considered as being in civil circuit
Goods off civil circuit. Are those goods which cannot be objects of civil juridical acts
(e.g.: goods belonging to the state, constituting the object of public property).
There are as well:
Nungible goods. Are interchangeable one with another. They can be replaced by equal
quantities of the same quality (e.g.: grain, coffee, money)
Non-fungible goods. They have a specific individual value and cannot be replaced
with a similar thing
According to the way used to determine them, there are:
Goods individually identified. Are those goods individualized by specific features
and characteristics. E.g. a certain car individualized by its license plate.
Goods generally identified. Are those goods individualized by features corresponding
to a class or category they belong to. The individualization of such goods is only
possible by counting or measuring.
This distinction is important first of all because it determines the moment of the
transfer of the property right from the seller to the buyer. In case of individually identified
goods, the property right is transferred at the very moment when the agreement of the parties
was achieved. Therefore the buyer becomes the owner from the moment of the conclusion of
the contract, even if the goods themselves were not transferred yet.
In case of generally identified goods, the property right is transferred only at the
moment the foods are individualized by measuring or counting. This moment is important to
know because of the rule res ferit domino (the goods are destroyed for the owner). If the
goods are accidentally destroyed, the only person who has to suffer the loss is the owner.
Therefore in case of generally identified goods, if they are destroyed/vanished between the
moment of conclusion of the contract and the moment where the goods are delivered to the

buyer, the person who has to suffer their loss is till the seller. The seller will have no right to
the price of the goods. In order to fulfill the contracts the seller has to replace the vanished
goods with others.