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Civil law. Obligations. Second edition revised and added - Ioan Ciochina-Barbu, Cristian Jora
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ISBN: 978-606-28-1061-0
DOI: https://doi.org/10.5682/9786062810610
Publisher year: 2020
Edition: II, revizuita si completata
Pages: 502
Publisher: Editura Universitara
Author: Ioan Ciochina-Barbu, Cristian Jora
Product Code:
9786062810610
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Civil Law. Obligations, in its second edition, provides students and masters with useful information on institutions specific to this part of civil law and the authors sought to present new elements of doctrine and judicial practice, the current edition taking into account the changes legislative, but also, to a certain extent, the evolution of judicial practice.
The authors tried to present the institutions in the field of civil obligations according to the current legal framework, taking into account the regulations of the Civil Code and those of other normative acts, and when deemed necessary, a comparative analysis was performed between the current regulation and that of Civil Code of 1864.
The authors' efforts materialized in the realization of a documented work on the institutions within the civil obligations, the course representing a study tool for students and masters of law faculties, but also a useful source of documentation for theorists and practitioners of law. The opinions, the points of view of the authors can be submitted to scientific discussions or debates, and these can be elements of analysis in order to improve the current legal framework.
The authors tried to present the institutions in the field of civil obligations according to the current legal framework, taking into account the regulations of the Civil Code and those of other normative acts, and when deemed necessary, a comparative analysis was performed between the current regulation and that of Civil Code of 1864.
The authors' efforts materialized in the realization of a documented work on the institutions within the civil obligations, the course representing a study tool for students and masters of law faculties, but also a useful source of documentation for theorists and practitioners of law. The opinions, the points of view of the authors can be submitted to scientific discussions or debates, and these can be elements of analysis in order to improve the current legal framework.
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DREPT CIVIL. OBLIGAȚIILE.Ediția a II-a revăzută și adăugită
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Ioan Ciochina-Barbu
Cristian Jora
Cristian Jora
C U P R I N S
ABBREVIATIONS / 5
TITLE I. OVERVIEW OF THEIR CIVIL OBLIGATIONS / 7
CHAPTER I. DEFINITION OF OBLIGATION. CLASSIFICATION OF OBLIGATIONS / 7
SECTION I DEFINITION OF OBLIGATION. OBLIGATORY LEGAL REPORT / 7
Definition of the obligation / 7
Obligatory legal report / 9
SECTION II CLASSIFICATION CRITERIA / 11
According to the source that generated the obligations / 11
By their object / 12
After the legal sanction / 14
According to their opposability / 16
As they are or are not affected by the modalities / 17
CHAPTER II. THE SOURCES OF OBLIGATIONS. NOTION. CLASSIFICATION / 18
THE NOTION OF SOURCE OF OBLIGATIONS / 18
Classification of sources of obligations / 19
TITLE II. SOURCES OF OBLIGATIONS / 20
CHAPTER I. THE CONTRACT / 20
SECTION I. CONTRACT GENERAL / 20
I.1. DEFINITION OF THE CONTRACT / 20
SECTION II CLASSIFICATION OF CONTRACTS / 23
By training mode / 23
By content / 25
According to the purpose pursued / 28
After effects / 29
By execution mode / 30
According to the correlation between them / 31
According to the way of expressing the will of the parties / 32
As they are or are not nominated in the legislation / 32
By degree of complexity / 34
According to the quality of the contractors / 35
According to the quality of the contractors / 36
CHAPTER II CONCLUSION OF CONTRACTS / 38
GENERAL PROBLEMS / 38
PROCEDURE PRIOR TO THE CONCLUSION OF THE CONTRACT / 39
CONTRACT OFFER / 41
Notion / 41
The conditions of the offer and its legal nature / 42
Mandatory force of the offer / 43
Withdrawal and revocation of the offer / 44
Communication of the offer and its expiration / 46
Offer and pre-contract / 48
ACCEPTANCE OF THE OFFER / 49
The notion, regulation and legal nature of acceptance / 49
Conditions and types of acceptance of the offer / 50
Withdrawal of acceptance of the offer and communication of acceptance of the offer / 52
TIME OF CONCLUSION OF THE CONTRACT / 52
PLACE OF CONCLUSION OF THE CONTRACT / 56
SPECIAL ISSUES REGARDING THE ESTABLISHMENT OF THE CONTRACT CONTENT IN THE SUPPLY AND ACCEPTANCE RELATIONSHIP / 56
CHAPTER III EFFECTS OF CONTRACTS
GENERAL CONSIDERATIONS / 59
BINDING FORCE OF THE CONTRACT / 59
PRINCIPLE OF IRREVOCABILITY OF THE CONTRACT / 67
PRINCIPLE OF THE RELATIVITY OF THE EFFECTS OF THE CONTRACT / 68
The notion and justification of the principle of relativity of the effects of the contract / 68
Scope / 69
Exceptions to the principle of relativity of contract effects / 73
Simulation - exception from the opposability to third parties of the contract / 79
CHAPTER IV. SPECIAL EFFECTS OF SYNALAGMATIC CONTRACTS / 85
GENERAL PROBLEMS / 85
EXCEPTION OF NON - PERFORMANCE OF THE CONTRACT / 86
TERMINATION AND TERMINATION OF THE CONTRACT / 90
CONTRACT RISK / 100
CHAPTER V. UNILATERAL LEGAL ACT - SOURCE OF OBLIGATIONS / 105
GENERALITIES / 105
UNILATERAL LEGAL ACT AS A SOURCE OF OBLIGATIONS / 106
The unilateral promise / 106
The public promise of reward / 107
TITLE III. LEGAL DEEDS - SOURCES OF OBLIGATIONS / 109
CHAPTER I. CONSIDERATIONS REGARDING CIVIL LEGAL ACTS. LEGAL LEGAL DEEDS / 109
SECTION I CONSIDERATIONS REGARDING CIVIL LEGAL ACTS / 109
Preliminary issues / 109
Legal regulation / 111
SECTION II LEGAL LEGAL DEEDS / 111
II 1. BUSINESS MANAGEMENT / 111
Notion / 111
Conditions / 113
The effects of business management / 113
Legal nature / 115
PAYMENT OF UNDUE WORK / 116
Notion and regulation / 116
Conditions / 117
The effects of undue payment / 118
Legal situations in which the obligation to reimburse the undue payment does not exist / 119
ENRICHMENT WITHOUT A JUST CAUSE / 121
Notion. Regulation / 121
Notion / 121
Legal regulation / 121
The conditions necessary to promote the restitution action (actio de in rem verso) / 122
The effects of enrichment without just cause / 123
Legal nature / 124
CHAPTER II. CRIMINAL CIVIL LIABILITY (ILLEGAL LEGAL FACT - SOURCE OF OBLIGATIONS) / 126
GENERAL ISSUES REGARDING CIVIL LIABILITY / 126
The notion of civil liability / 126
Functions of civil liability / 127
Forms of civil liability / 128
The foundation of civil liability / 129
Theory of subjective responsibility / 129
Objective liability theory / 130
Mixed theories and guarantee theory / 131
Delinquent civil liability / 132
Forms of tortious civil liability / 132
The legal nature of tortious civil liability / 132
CHAPTER III. CRIMINAL CIVIL LIABILITY FOR OWN DEED / 134
GENERAL PROBLEMS / 134
INJURY / 134
The notion of prejudice / 134
Conditions for repairing the damage / 136
The damage to be certain / 137
The damage has not been repaired / 137
Principles of damage reparation / 139
The principle of conventional reparation of damage / 139
The principle of full reparation of the damage / 140
The principle of reparation in kind of damage / 141
The principle of joint and several liability / 141
Ways of repairing the damage by equivalent / 141
The way of establishing the compensations in case of reparation by equivalent of the damage / 142
The patrimonial damage and the moral damage / 148
ILLEGAL ACT / 159
Notion and importance / 159
Illicit actions and inactions / 160
Causes that remove the illicit character of the deed / 161
Legitimate defense / 161
State of necessity / 162
Fulfilling an activity imposed or permitted by law or the order of the superior / 163
Disclosure of trade secrets imposed by certain circumstances / 164
Normal exercise of a subjective right / 165
The victim 's consent / 166
CAUSATION REPORT / 168
Notion and importance / 168
Determination of the causal relationship / 168
Causal ratio determination systems / 170
THE GUILT OF THE AUTHOR OF THE INJURY / 173
The notion, structure and importance of guilt / 173
Tort capacity / 175
Forms of guilt / 177
Determining guilt / 179
Causes that remove guilt / 184
PROOF OF THE ELEMENTS OF CRIMINAL CIVIL LIABILITY FOR OWN DEED / 185
LIABILITY / CIVIL LIABILITY FOR THE ACT OF THE LEGAL ENTITY / 187
Conditions for engaging in liability / 187
Liability of natural persons composing the bodies of the legal person and the effects of the liability of the legal person / 189
Liability of legal persons under public law / 190
CHAPTER IV. CRIMINAL CIVIL LIABILITY FOR THE DEED OF A MINOR OR OF A PERSON UNDER PROHIBITION / 191
HEADQUARTERS OF THE SUBJECT AND SCOPE / 191
BASIS OF EMPLOYMENT OF LIABILITY FOR THE DEED OF THE MINOR
OR OF THE PERSON UNDER PROHIBITION / 192
CONDITIONS OF LIABILITY FOR DAMAGES CAUSED BY MINORS OR
OF PERSONS PLACED UNDER PROHIBITION / 194
EFFECTS OF LIABILITY FOR THE ACT OF A MINOR OR PERSON UNDER PROHIBITION / 197
CORRELATION / BETWEEN / THE RESPONSIBILITY / OF THE PARENTS / OR / THE GUARDIAN AND THE RESPONSIBILITY OF OTHER PERSONS WHO HAD THE OBLIGATION TO
SURVEILLANCE OF THE MINOR / 197
CHAPTER V. RESPONSIBILITY OF THE COMMITTEE FOR THE ACT OF THE BUDGET / 201
MATERIAL HEADQUARTERS / 201
SCOPE / OF / APPLICATION / OF / LEGAL / PROVISIONS CONCERNING THE COMMITTEE'S RESPONSIBILITY FOR THE ACT OF THE PRESIDENT / 201
BASIS / COMMITMENT OF THE COMMITTEE'S RESPONSIBILITY FOR THE ACTS OF THE PRESIDENT / 207
GENERAL CONDITIONS OF EMPLOYMENT OF THE COMMITTEE'S RESPONSIBILITY FOR THE ACT OF THE BUDGET / 208
SPECIAL CONDITIONS OF EMPLOYMENT OF THE COMMITTEE'S RESPONSIBILITY FOR THE ACT OF THE BUDGET / 209
EFFECTS OF THE COMMITTEE'S RESPONSIBILITY FOR THE ACT OF THE BUDGET / 212
Relations between the principal and the victim of the damage / 212
The principal 's recourse against the presiding officer / 213
CORRELATION BETWEEN PARENTS 'RESPONSIBILITY AND COMMITTEE'S RESPONSIBILITY / 215
CHAPTER VI. LIABILITY FOR DAMAGES CAUSED BY ANIMALS / 218
MATERIAL HEADQUARTERS / 218
SCOPE OF LEGAL PROVISIONS / 219
GROUNDS / EMPLOYMENT / LIABILITY / FOR / INJURY CAUSED
OF ANIMALS / 221
THE CONDITIONS OF EMPLOYMENT OF LIABILITY FOR THE DAMAGES CAUSED
OF ANIMALS / 222
EFFECTS OF LIABILITY FOR DAMAGES CAUSED BY ANIMALS / 223
CHAPTER VII. LIABILITY FOR BUILDING RUIN / 226
MATERIAL HEADQUARTERS / 226
SCOPE OF LEGAL PROVISIONS / 227
THE BASIS OF EMPLOYMENT RESPONSIBILITY FOR BUILDING RUIN / 228
CONDITIONS OF EMPLOYMENT RESPONSIBILITY FOR BUILDING RUIN / 229
EFFECTS OF LIABILITY FOR DAMAGE CAUSED BY BUILDING RUIN / 229
CHAPTER VIII LIABILITY FOR DAMAGES CAUSED BY THINGS IN GENERAL / 232
MATERIAL HEADQUARTERS / 232
SCOPE OF LEGAL PROVISIONS / 233
The notion of work / 233
Legal security / 234
Determining the notion of injury caused by work / 238
Determining the category of persons who have the quality of legal guards / 238
GROUNDS / LIABILITY / FOR / INJURY / CAUSED
OF THINGS / 241
CONDITIONS OF LIABILITY FOR DAMAGES CAUSED BY THINGS / 242
EFFECTS OF LIABILITY FOR INJURY CAUSED / 244
CORRELATION OF LIABILITY FOR DAMAGES CAUSED BY THINGS
WITH OTHER FORMS OF LIABILITY / 245
LIABILITY / FOR / INJURY / CAUSED / BY / FALLING
OR THROWING A PROPERTY FROM THE PROPERTY / 245
SOME SPECIAL FORMS OF CRIMINAL CIVIL LIABILITY / 246
Civil liability for damages caused to third parties by accidents
vehicles and trams / 246
Compulsory insurance of housing against earthquakes, landslides
land and floods / 250
Liability for nuclear damage / 252
Liability for damage caused by aircraft / 255
Medical civil liability / 258
Civil liability for environmental damage / 260
State liability for damages caused by judicial errors / 266
Civil liability for damages caused by product defects / 269
TITLE IV. COMPLEX OBLIGATIONS / 272
CHAPTER I. OBLIGATIONS AFFECTED BY THE MODALITIES / 272
INTRODUCTORY ISSUES / 272
Notion. Categories / 272
CONDITIA / 273
Definition. Regulation. Classification / 273
The effects of fulfilling the condition / 276
The effects of the suspensive condition / 277
The effects of the resolving condition / 280
TERM / 282
Notion. Classification / 282
The effects of the term / 283
Judicial establishment of the term / 284
Giving up la term / 285
Decline from the benefit of the term / 285
CHAPTER II PLURAL OBLIGATIONS / 287
PLURALITY OF SUBJECTS / 287
Generalities / 287
Divisible obligations (joint) / 288
Notion / 288
The effects of divisible (joint) obligations / 288
Solidarity obligations / 289
Definition. Legal regulation. Classification / 289
Solidarity obligations between creditors (Active solidarity) / 290
The effects of active solidarity / 290
Solidarity obligations between debtors (Passive solidarity) / 292
Specific features of passive solidarity / 293
The effects of passive solidarity. Co - debtors' relations with the creditor / 295
Exceptions opposable to the creditor / 296
The effects of passive solidarity in the relations between the joint and several debtors / 298
Cessation of passive solidarity / 299
Indivisible obligations / 302
Notion / 302
The effects of indivisibility / 303
PLURALITY OF OBJECTS (JOINT OBLIGATIONS) / 306
Preliminary details / 306
Alternative obligations / 306
The notion of alternative obligation / 306
The effects of alternative obligations / 307
Optional obligations / 308
Notion / 308
II.1.3.2. The effects of optional obligations / 308
TITLE V. EFFECTS OF OBLIGATIONS / 310
CHAPTER I. EXECUTION IN NATURE OF OBLIGATIONS / 310
GENERALITIES / 310
Notion and importance / 310
The principle of execution in kind of obligations / 311
SILVER / 311
Notion. Legal regulation / 311
Terms of payment / 312
Persons eligible for payment / 314
Object of payment / 315
Indivisibility of payment / 316
Date of payment / 317
Place of payment. Payment expenses / 318
Imputation of payment / 319
Proof of payment / 322
Delay of the creditor / 324
Real offer followed by recording / 324
FORCED EXECUTION OF OBLIGATIONS / 325
Notion. Form / 325
Forced execution in kind of obligations according to their object / 327
Execution in kind of obligations to give / 327
Execution of obligations to do and not to do / 327
Comminatory damages / 328
Current doctrinal and jurisprudential issues regarding comminatory damages / 329
CHAPTER II. INDIRECT PERFORMANCE OF OBLIGATIONS (PERFORMANCE BY EQUIVALENT) / 333
PRELIMINARY ISSUES / 333
Notion / 333
Compensation categories / 334
The legal nature of the indirect execution of obligations / 334
CONDITIONS FOR GRANTING COMPENSATION / 335
Injury / 335
The guilt of the debtor / 335
Delaying the debtor / 336
Conventions on liability / 338
ASSESSMENT OF COMPENSATION (DAMAGES - INTEREST) / 339
Judicial evaluation / 339
Legal evaluation / 340
Conventional evaluation. Penal clause / 343
Arvuna / 347
CREDITOR'S RIGHTS OVER DEBTOR'S PROPERTY / 348
General considerations / 348
Means of protection of the creditor 's rights / 349
Notion / 349
Conservative measures / 350
Oblique action / 351
Notion / 351
Areas of application / 351
Conditions of admissibility of the oblique action / 352
The effects of oblique action / 353
Revocation action (pauliana) / 353
Notion / 353
Areas of application / 354
The conditions of admissibility of the Pauline action / 354
The effects of the revocation action / 356
TITLE VI. OBLIGATION DYNAMICS - TRANSMISSION AND TRANSFORMATION OF OBLIGATIONS / 358
CHAPTER I. PRELIMINARY ISSUES / 358
DEFINITION / 358
Ways of transmission and transformation of obligations. Enumeration / 359
CHAPTER II. METHODS OF TRANSMISSION OF BONDS / 360
DEBT ASSIGNMENT / 360
Notion / 360
Conditions of validity of the assignment of receivable / 361
Effects of debt assignment / 362
Warranty obligation / 364
SUBROGATION IN CREDITOR'S RIGHTS BY DEBT PAYMENT / 366
Notion / 366
Types of subrogation / 366
Legal subrogation / 367
Conventional surrogacy / 370
The effects of subrogation / 371
ASSUMPTION OF DEBT / 373
CHAPTER III. WAYS OF TRANSFORMING OBLIGATIONS / 377
NOVATIA / 377
Definition / 377
Kinds of novation / 377
Conditions of novation / 378
The effects of novation / 379
TITLE VII. TERMINATION OF OBLIGATIONS / 382
CHAPTER I. GENERAL ASPECTS / 382
SPECIFICATIONS REGARDING THE CURRENT REGULATION OF THE WAYS OF EXTINGUISHING THE OBLIGATIONS IN THE CIVIL CODE / 382
WAYS OF TERMINATION OF OBLIGATIONS. CLASSIFICATION / 383
CHAPTER II. THE WAYS OF EXTINGUISHING THE OBLIGATIONS WHICH LEAD TO THE REALIZATION OF THE CREDITOR'S CREATION / 384
COMPENSATION / 384
Notion. Regulation / 384
Scope / 385
Types of compensation / 386
Legal compensation. Conditions / 386
Conventional compensation / 388
Judicial compensation / 388
CONFUSION / 390
Notion / 390
The effects of confusion / 391
PAYMENT. ASSIGNMENT OF DEBT IN PLACE OF PAYMENT / 392
Notion. Regulation / 392
The conditions necessary for the existence of the payment / 393
Assignment of debt instead of execution / 393
"Forced" payment / 394
CHAPTER III. THE WAYS OF EXCLUDING THE OBLIGATIONS THAT DO NOT LEAD TO THE REALIZATION OF THE DEBTORS / 398
DEBT SUBMISSION / 398
Notion / 398
Debt remission conditions / 398
Proof of debt remission / 399
The effects of debt remission / 399
FORCED IMPOSSIBILITY OF EXECUTION / 401
Notion. Regulation. Effects / 401
TITLE VIII. GUARANTEE OF OBLIGATIONS / 405
CHAPTER I. GENERAL INFORMATION ON WARRANTIES / 405
THE NOTION OF GUARANTEE OF OBLIGATIONS / 405
LEGAL REGULATION / 407
CLASSIFICATION OF WARRANTIES / 408
CHAPTER II. PERSONAL WARRANTIES / 409
GUARANTEE (PERSONAL GUARANTEE) / 409
Generalities / 409
Notion / 409
Types of surety / 410
Legal characteristics of the suretyship contract / 411
The special conditions required to be met by the guarantor / 412
The effects of surety / 413
Relations between creditor and guarantor / 413
The relations between the guarantor and the main debtor / 415
Relations between co-guarantors / 416
Extinction (cessation) of the surety / 417
AUTONOMOUS WARRANTIES / 418
Generalities / 418
II. 2.2. General features of autonomous guarantees / 419
Legal characteristics of the autonomous guarantee / 421
The effects of the autonomous guarantee / 421
Extinguishment of the autonomous guarantee / 423
Letter of guarantee / 423
Comfort letter / 424
The notion and utility of the comfort letter / 424
Legal characteristics of the comfort letter / 425
The effects of the comfort letter / 425
Extinguishing the comfort letter / 426
TITLE IX. PRIVILEGES AND ROYAL GUARANTEES / 427
CHAPTER I. PRIVILEGES / 427
GENERALITIES. LEGAL REGULATIONS / 427
LEGAL CHARACTERISTICS OF PRIVILEGES / 428
CLASSIFICATION / 428
General privileges / 428
Special privileges / 431
OPPOSABILITY OF PRIVILEGES. THE COMPETITION BETWEEN THE PRIVILEGED CREDITORS, AS WELL AS BETWEEN THEM AND THE OTHER CREDITORS OF THE SAME DEBTOR / 431
Opposability of privileges / 431
The contest between the privileged creditors, as well as between them and the other creditors of the same debtor / 431
EXTINGUISHMENT OF PRIVILEGES / 432
CHAPTER II. MORTGAGE / 433
NOTION. LEGAL REGULATIONS. CLASSIFICATION / 433
COMMON LEGAL CHARACTERISTICS OF MORTGAGES / 433
GOODS THAT CAN BE MORTGAGED / 435
Movable and immovable property / 435
Determined goods or determinable goods and universality of goods / 436
SCOPE OF THE MORTGAGE / 438
MORTGAGE CLASSIFICATION / 440
Criteria for classifying mortgages / 440
Conventional mortgage / 441
Legal mortgage / 444
MORTGAGE ADVERTISING / 445
The purpose of mortgage advertising / 445
Real estate mortgage advertising / 445
Mobile mortgage advertising / 446
Improvement and opposability of the movable mortgage / 447
THE EFFECTS OF THE MORTGAGE / 448
The effects of the mortgage in the case of the relations between the mortgagee and the constitutor / 448
Common effects of real estate and movable mortgages / 448
The specific effects of the real estate mortgage / 449
The specific effects of the mortgage / 449
The effects of the mortgage in the case of the relations between the mortgagee and the third party owner of the property / 451
The effects of the mortgage in relation to other creditors / 452
TRANSMISSION AND TERMINATION OF THE MORTGAGE / 454
Mortgage transfer / 454
Mortgage settlement / 455
EXECUTION OF THE MORTGAGE / 455
Foreclosure of movable tangible property / 456
Execution of the mortgage on some representative titles / 462
Foreclosure on receivables / 463
Creditor 's liability / 463
CHAPTER III. GAJUL / 465
DEFINITION. LEGAL REGULATIONS / 465
LEGAL CHARACTERISTICS OF THE GAJ CONTRACT / 465
ADVERTISING THE PLAY / 466
EFFECTS OF THE HOLE / 467
SWITCH OFF / 468
CHAPTER IV. RIGHT OF RETENTION / 469
DEFINITION. LEGAL REGULATIONS / 469
FUNDAMENTAL RIGHT OF RETENTION / 470
LEGAL CHARACTERISTICS OF THE RIGHT OF RETENTION / 471
REQUIREMENTS NECESSARY FOR THE BIRTH OF THE RIGHT OF RETENTION / 471
ATTRIBUTES OF THE RIGHT OF RETENTION / 472
Prerogative to refuse to hand over the good / 472
Retention right guarantee function / 472
Extinction of the right of retention / 473
BIBLIOGRAPHY / 476
Treatises. Monographs. Courses / 476
Studies. Articles. Communications / 487
CONTENTS / 492
ABBREVIATIONS / 5
TITLE I. OVERVIEW OF THEIR CIVIL OBLIGATIONS / 7
CHAPTER I. DEFINITION OF OBLIGATION. CLASSIFICATION OF OBLIGATIONS / 7
SECTION I DEFINITION OF OBLIGATION. OBLIGATORY LEGAL REPORT / 7
Definition of the obligation / 7
Obligatory legal report / 9
SECTION II CLASSIFICATION CRITERIA / 11
According to the source that generated the obligations / 11
By their object / 12
After the legal sanction / 14
According to their opposability / 16
As they are or are not affected by the modalities / 17
CHAPTER II. THE SOURCES OF OBLIGATIONS. NOTION. CLASSIFICATION / 18
THE NOTION OF SOURCE OF OBLIGATIONS / 18
Classification of sources of obligations / 19
TITLE II. SOURCES OF OBLIGATIONS / 20
CHAPTER I. THE CONTRACT / 20
SECTION I. CONTRACT GENERAL / 20
I.1. DEFINITION OF THE CONTRACT / 20
SECTION II CLASSIFICATION OF CONTRACTS / 23
By training mode / 23
By content / 25
According to the purpose pursued / 28
After effects / 29
By execution mode / 30
According to the correlation between them / 31
According to the way of expressing the will of the parties / 32
As they are or are not nominated in the legislation / 32
By degree of complexity / 34
According to the quality of the contractors / 35
According to the quality of the contractors / 36
CHAPTER II CONCLUSION OF CONTRACTS / 38
GENERAL PROBLEMS / 38
PROCEDURE PRIOR TO THE CONCLUSION OF THE CONTRACT / 39
CONTRACT OFFER / 41
Notion / 41
The conditions of the offer and its legal nature / 42
Mandatory force of the offer / 43
Withdrawal and revocation of the offer / 44
Communication of the offer and its expiration / 46
Offer and pre-contract / 48
ACCEPTANCE OF THE OFFER / 49
The notion, regulation and legal nature of acceptance / 49
Conditions and types of acceptance of the offer / 50
Withdrawal of acceptance of the offer and communication of acceptance of the offer / 52
TIME OF CONCLUSION OF THE CONTRACT / 52
PLACE OF CONCLUSION OF THE CONTRACT / 56
SPECIAL ISSUES REGARDING THE ESTABLISHMENT OF THE CONTRACT CONTENT IN THE SUPPLY AND ACCEPTANCE RELATIONSHIP / 56
CHAPTER III EFFECTS OF CONTRACTS
GENERAL CONSIDERATIONS / 59
BINDING FORCE OF THE CONTRACT / 59
PRINCIPLE OF IRREVOCABILITY OF THE CONTRACT / 67
PRINCIPLE OF THE RELATIVITY OF THE EFFECTS OF THE CONTRACT / 68
The notion and justification of the principle of relativity of the effects of the contract / 68
Scope / 69
Exceptions to the principle of relativity of contract effects / 73
Simulation - exception from the opposability to third parties of the contract / 79
CHAPTER IV. SPECIAL EFFECTS OF SYNALAGMATIC CONTRACTS / 85
GENERAL PROBLEMS / 85
EXCEPTION OF NON - PERFORMANCE OF THE CONTRACT / 86
TERMINATION AND TERMINATION OF THE CONTRACT / 90
CONTRACT RISK / 100
CHAPTER V. UNILATERAL LEGAL ACT - SOURCE OF OBLIGATIONS / 105
GENERALITIES / 105
UNILATERAL LEGAL ACT AS A SOURCE OF OBLIGATIONS / 106
The unilateral promise / 106
The public promise of reward / 107
TITLE III. LEGAL DEEDS - SOURCES OF OBLIGATIONS / 109
CHAPTER I. CONSIDERATIONS REGARDING CIVIL LEGAL ACTS. LEGAL LEGAL DEEDS / 109
SECTION I CONSIDERATIONS REGARDING CIVIL LEGAL ACTS / 109
Preliminary issues / 109
Legal regulation / 111
SECTION II LEGAL LEGAL DEEDS / 111
II 1. BUSINESS MANAGEMENT / 111
Notion / 111
Conditions / 113
The effects of business management / 113
Legal nature / 115
PAYMENT OF UNDUE WORK / 116
Notion and regulation / 116
Conditions / 117
The effects of undue payment / 118
Legal situations in which the obligation to reimburse the undue payment does not exist / 119
ENRICHMENT WITHOUT A JUST CAUSE / 121
Notion. Regulation / 121
Notion / 121
Legal regulation / 121
The conditions necessary to promote the restitution action (actio de in rem verso) / 122
The effects of enrichment without just cause / 123
Legal nature / 124
CHAPTER II. CRIMINAL CIVIL LIABILITY (ILLEGAL LEGAL FACT - SOURCE OF OBLIGATIONS) / 126
GENERAL ISSUES REGARDING CIVIL LIABILITY / 126
The notion of civil liability / 126
Functions of civil liability / 127
Forms of civil liability / 128
The foundation of civil liability / 129
Theory of subjective responsibility / 129
Objective liability theory / 130
Mixed theories and guarantee theory / 131
Delinquent civil liability / 132
Forms of tortious civil liability / 132
The legal nature of tortious civil liability / 132
CHAPTER III. CRIMINAL CIVIL LIABILITY FOR OWN DEED / 134
GENERAL PROBLEMS / 134
INJURY / 134
The notion of prejudice / 134
Conditions for repairing the damage / 136
The damage to be certain / 137
The damage has not been repaired / 137
Principles of damage reparation / 139
The principle of conventional reparation of damage / 139
The principle of full reparation of the damage / 140
The principle of reparation in kind of damage / 141
The principle of joint and several liability / 141
Ways of repairing the damage by equivalent / 141
The way of establishing the compensations in case of reparation by equivalent of the damage / 142
The patrimonial damage and the moral damage / 148
ILLEGAL ACT / 159
Notion and importance / 159
Illicit actions and inactions / 160
Causes that remove the illicit character of the deed / 161
Legitimate defense / 161
State of necessity / 162
Fulfilling an activity imposed or permitted by law or the order of the superior / 163
Disclosure of trade secrets imposed by certain circumstances / 164
Normal exercise of a subjective right / 165
The victim 's consent / 166
CAUSATION REPORT / 168
Notion and importance / 168
Determination of the causal relationship / 168
Causal ratio determination systems / 170
THE GUILT OF THE AUTHOR OF THE INJURY / 173
The notion, structure and importance of guilt / 173
Tort capacity / 175
Forms of guilt / 177
Determining guilt / 179
Causes that remove guilt / 184
PROOF OF THE ELEMENTS OF CRIMINAL CIVIL LIABILITY FOR OWN DEED / 185
LIABILITY / CIVIL LIABILITY FOR THE ACT OF THE LEGAL ENTITY / 187
Conditions for engaging in liability / 187
Liability of natural persons composing the bodies of the legal person and the effects of the liability of the legal person / 189
Liability of legal persons under public law / 190
CHAPTER IV. CRIMINAL CIVIL LIABILITY FOR THE DEED OF A MINOR OR OF A PERSON UNDER PROHIBITION / 191
HEADQUARTERS OF THE SUBJECT AND SCOPE / 191
BASIS OF EMPLOYMENT OF LIABILITY FOR THE DEED OF THE MINOR
OR OF THE PERSON UNDER PROHIBITION / 192
CONDITIONS OF LIABILITY FOR DAMAGES CAUSED BY MINORS OR
OF PERSONS PLACED UNDER PROHIBITION / 194
EFFECTS OF LIABILITY FOR THE ACT OF A MINOR OR PERSON UNDER PROHIBITION / 197
CORRELATION / BETWEEN / THE RESPONSIBILITY / OF THE PARENTS / OR / THE GUARDIAN AND THE RESPONSIBILITY OF OTHER PERSONS WHO HAD THE OBLIGATION TO
SURVEILLANCE OF THE MINOR / 197
CHAPTER V. RESPONSIBILITY OF THE COMMITTEE FOR THE ACT OF THE BUDGET / 201
MATERIAL HEADQUARTERS / 201
SCOPE / OF / APPLICATION / OF / LEGAL / PROVISIONS CONCERNING THE COMMITTEE'S RESPONSIBILITY FOR THE ACT OF THE PRESIDENT / 201
BASIS / COMMITMENT OF THE COMMITTEE'S RESPONSIBILITY FOR THE ACTS OF THE PRESIDENT / 207
GENERAL CONDITIONS OF EMPLOYMENT OF THE COMMITTEE'S RESPONSIBILITY FOR THE ACT OF THE BUDGET / 208
SPECIAL CONDITIONS OF EMPLOYMENT OF THE COMMITTEE'S RESPONSIBILITY FOR THE ACT OF THE BUDGET / 209
EFFECTS OF THE COMMITTEE'S RESPONSIBILITY FOR THE ACT OF THE BUDGET / 212
Relations between the principal and the victim of the damage / 212
The principal 's recourse against the presiding officer / 213
CORRELATION BETWEEN PARENTS 'RESPONSIBILITY AND COMMITTEE'S RESPONSIBILITY / 215
CHAPTER VI. LIABILITY FOR DAMAGES CAUSED BY ANIMALS / 218
MATERIAL HEADQUARTERS / 218
SCOPE OF LEGAL PROVISIONS / 219
GROUNDS / EMPLOYMENT / LIABILITY / FOR / INJURY CAUSED
OF ANIMALS / 221
THE CONDITIONS OF EMPLOYMENT OF LIABILITY FOR THE DAMAGES CAUSED
OF ANIMALS / 222
EFFECTS OF LIABILITY FOR DAMAGES CAUSED BY ANIMALS / 223
CHAPTER VII. LIABILITY FOR BUILDING RUIN / 226
MATERIAL HEADQUARTERS / 226
SCOPE OF LEGAL PROVISIONS / 227
THE BASIS OF EMPLOYMENT RESPONSIBILITY FOR BUILDING RUIN / 228
CONDITIONS OF EMPLOYMENT RESPONSIBILITY FOR BUILDING RUIN / 229
EFFECTS OF LIABILITY FOR DAMAGE CAUSED BY BUILDING RUIN / 229
CHAPTER VIII LIABILITY FOR DAMAGES CAUSED BY THINGS IN GENERAL / 232
MATERIAL HEADQUARTERS / 232
SCOPE OF LEGAL PROVISIONS / 233
The notion of work / 233
Legal security / 234
Determining the notion of injury caused by work / 238
Determining the category of persons who have the quality of legal guards / 238
GROUNDS / LIABILITY / FOR / INJURY / CAUSED
OF THINGS / 241
CONDITIONS OF LIABILITY FOR DAMAGES CAUSED BY THINGS / 242
EFFECTS OF LIABILITY FOR INJURY CAUSED / 244
CORRELATION OF LIABILITY FOR DAMAGES CAUSED BY THINGS
WITH OTHER FORMS OF LIABILITY / 245
LIABILITY / FOR / INJURY / CAUSED / BY / FALLING
OR THROWING A PROPERTY FROM THE PROPERTY / 245
SOME SPECIAL FORMS OF CRIMINAL CIVIL LIABILITY / 246
Civil liability for damages caused to third parties by accidents
vehicles and trams / 246
Compulsory insurance of housing against earthquakes, landslides
land and floods / 250
Liability for nuclear damage / 252
Liability for damage caused by aircraft / 255
Medical civil liability / 258
Civil liability for environmental damage / 260
State liability for damages caused by judicial errors / 266
Civil liability for damages caused by product defects / 269
TITLE IV. COMPLEX OBLIGATIONS / 272
CHAPTER I. OBLIGATIONS AFFECTED BY THE MODALITIES / 272
INTRODUCTORY ISSUES / 272
Notion. Categories / 272
CONDITIA / 273
Definition. Regulation. Classification / 273
The effects of fulfilling the condition / 276
The effects of the suspensive condition / 277
The effects of the resolving condition / 280
TERM / 282
Notion. Classification / 282
The effects of the term / 283
Judicial establishment of the term / 284
Giving up la term / 285
Decline from the benefit of the term / 285
CHAPTER II PLURAL OBLIGATIONS / 287
PLURALITY OF SUBJECTS / 287
Generalities / 287
Divisible obligations (joint) / 288
Notion / 288
The effects of divisible (joint) obligations / 288
Solidarity obligations / 289
Definition. Legal regulation. Classification / 289
Solidarity obligations between creditors (Active solidarity) / 290
The effects of active solidarity / 290
Solidarity obligations between debtors (Passive solidarity) / 292
Specific features of passive solidarity / 293
The effects of passive solidarity. Co - debtors' relations with the creditor / 295
Exceptions opposable to the creditor / 296
The effects of passive solidarity in the relations between the joint and several debtors / 298
Cessation of passive solidarity / 299
Indivisible obligations / 302
Notion / 302
The effects of indivisibility / 303
PLURALITY OF OBJECTS (JOINT OBLIGATIONS) / 306
Preliminary details / 306
Alternative obligations / 306
The notion of alternative obligation / 306
The effects of alternative obligations / 307
Optional obligations / 308
Notion / 308
II.1.3.2. The effects of optional obligations / 308
TITLE V. EFFECTS OF OBLIGATIONS / 310
CHAPTER I. EXECUTION IN NATURE OF OBLIGATIONS / 310
GENERALITIES / 310
Notion and importance / 310
The principle of execution in kind of obligations / 311
SILVER / 311
Notion. Legal regulation / 311
Terms of payment / 312
Persons eligible for payment / 314
Object of payment / 315
Indivisibility of payment / 316
Date of payment / 317
Place of payment. Payment expenses / 318
Imputation of payment / 319
Proof of payment / 322
Delay of the creditor / 324
Real offer followed by recording / 324
FORCED EXECUTION OF OBLIGATIONS / 325
Notion. Form / 325
Forced execution in kind of obligations according to their object / 327
Execution in kind of obligations to give / 327
Execution of obligations to do and not to do / 327
Comminatory damages / 328
Current doctrinal and jurisprudential issues regarding comminatory damages / 329
CHAPTER II. INDIRECT PERFORMANCE OF OBLIGATIONS (PERFORMANCE BY EQUIVALENT) / 333
PRELIMINARY ISSUES / 333
Notion / 333
Compensation categories / 334
The legal nature of the indirect execution of obligations / 334
CONDITIONS FOR GRANTING COMPENSATION / 335
Injury / 335
The guilt of the debtor / 335
Delaying the debtor / 336
Conventions on liability / 338
ASSESSMENT OF COMPENSATION (DAMAGES - INTEREST) / 339
Judicial evaluation / 339
Legal evaluation / 340
Conventional evaluation. Penal clause / 343
Arvuna / 347
CREDITOR'S RIGHTS OVER DEBTOR'S PROPERTY / 348
General considerations / 348
Means of protection of the creditor 's rights / 349
Notion / 349
Conservative measures / 350
Oblique action / 351
Notion / 351
Areas of application / 351
Conditions of admissibility of the oblique action / 352
The effects of oblique action / 353
Revocation action (pauliana) / 353
Notion / 353
Areas of application / 354
The conditions of admissibility of the Pauline action / 354
The effects of the revocation action / 356
TITLE VI. OBLIGATION DYNAMICS - TRANSMISSION AND TRANSFORMATION OF OBLIGATIONS / 358
CHAPTER I. PRELIMINARY ISSUES / 358
DEFINITION / 358
Ways of transmission and transformation of obligations. Enumeration / 359
CHAPTER II. METHODS OF TRANSMISSION OF BONDS / 360
DEBT ASSIGNMENT / 360
Notion / 360
Conditions of validity of the assignment of receivable / 361
Effects of debt assignment / 362
Warranty obligation / 364
SUBROGATION IN CREDITOR'S RIGHTS BY DEBT PAYMENT / 366
Notion / 366
Types of subrogation / 366
Legal subrogation / 367
Conventional surrogacy / 370
The effects of subrogation / 371
ASSUMPTION OF DEBT / 373
CHAPTER III. WAYS OF TRANSFORMING OBLIGATIONS / 377
NOVATIA / 377
Definition / 377
Kinds of novation / 377
Conditions of novation / 378
The effects of novation / 379
TITLE VII. TERMINATION OF OBLIGATIONS / 382
CHAPTER I. GENERAL ASPECTS / 382
SPECIFICATIONS REGARDING THE CURRENT REGULATION OF THE WAYS OF EXTINGUISHING THE OBLIGATIONS IN THE CIVIL CODE / 382
WAYS OF TERMINATION OF OBLIGATIONS. CLASSIFICATION / 383
CHAPTER II. THE WAYS OF EXTINGUISHING THE OBLIGATIONS WHICH LEAD TO THE REALIZATION OF THE CREDITOR'S CREATION / 384
COMPENSATION / 384
Notion. Regulation / 384
Scope / 385
Types of compensation / 386
Legal compensation. Conditions / 386
Conventional compensation / 388
Judicial compensation / 388
CONFUSION / 390
Notion / 390
The effects of confusion / 391
PAYMENT. ASSIGNMENT OF DEBT IN PLACE OF PAYMENT / 392
Notion. Regulation / 392
The conditions necessary for the existence of the payment / 393
Assignment of debt instead of execution / 393
"Forced" payment / 394
CHAPTER III. THE WAYS OF EXCLUDING THE OBLIGATIONS THAT DO NOT LEAD TO THE REALIZATION OF THE DEBTORS / 398
DEBT SUBMISSION / 398
Notion / 398
Debt remission conditions / 398
Proof of debt remission / 399
The effects of debt remission / 399
FORCED IMPOSSIBILITY OF EXECUTION / 401
Notion. Regulation. Effects / 401
TITLE VIII. GUARANTEE OF OBLIGATIONS / 405
CHAPTER I. GENERAL INFORMATION ON WARRANTIES / 405
THE NOTION OF GUARANTEE OF OBLIGATIONS / 405
LEGAL REGULATION / 407
CLASSIFICATION OF WARRANTIES / 408
CHAPTER II. PERSONAL WARRANTIES / 409
GUARANTEE (PERSONAL GUARANTEE) / 409
Generalities / 409
Notion / 409
Types of surety / 410
Legal characteristics of the suretyship contract / 411
The special conditions required to be met by the guarantor / 412
The effects of surety / 413
Relations between creditor and guarantor / 413
The relations between the guarantor and the main debtor / 415
Relations between co-guarantors / 416
Extinction (cessation) of the surety / 417
AUTONOMOUS WARRANTIES / 418
Generalities / 418
II. 2.2. General features of autonomous guarantees / 419
Legal characteristics of the autonomous guarantee / 421
The effects of the autonomous guarantee / 421
Extinguishment of the autonomous guarantee / 423
Letter of guarantee / 423
Comfort letter / 424
The notion and utility of the comfort letter / 424
Legal characteristics of the comfort letter / 425
The effects of the comfort letter / 425
Extinguishing the comfort letter / 426
TITLE IX. PRIVILEGES AND ROYAL GUARANTEES / 427
CHAPTER I. PRIVILEGES / 427
GENERALITIES. LEGAL REGULATIONS / 427
LEGAL CHARACTERISTICS OF PRIVILEGES / 428
CLASSIFICATION / 428
General privileges / 428
Special privileges / 431
OPPOSABILITY OF PRIVILEGES. THE COMPETITION BETWEEN THE PRIVILEGED CREDITORS, AS WELL AS BETWEEN THEM AND THE OTHER CREDITORS OF THE SAME DEBTOR / 431
Opposability of privileges / 431
The contest between the privileged creditors, as well as between them and the other creditors of the same debtor / 431
EXTINGUISHMENT OF PRIVILEGES / 432
CHAPTER II. MORTGAGE / 433
NOTION. LEGAL REGULATIONS. CLASSIFICATION / 433
COMMON LEGAL CHARACTERISTICS OF MORTGAGES / 433
GOODS THAT CAN BE MORTGAGED / 435
Movable and immovable property / 435
Determined goods or determinable goods and universality of goods / 436
SCOPE OF THE MORTGAGE / 438
MORTGAGE CLASSIFICATION / 440
Criteria for classifying mortgages / 440
Conventional mortgage / 441
Legal mortgage / 444
MORTGAGE ADVERTISING / 445
The purpose of mortgage advertising / 445
Real estate mortgage advertising / 445
Mobile mortgage advertising / 446
Improvement and opposability of the movable mortgage / 447
THE EFFECTS OF THE MORTGAGE / 448
The effects of the mortgage in the case of the relations between the mortgagee and the constitutor / 448
Common effects of real estate and movable mortgages / 448
The specific effects of the real estate mortgage / 449
The specific effects of the mortgage / 449
The effects of the mortgage in the case of the relations between the mortgagee and the third party owner of the property / 451
The effects of the mortgage in relation to other creditors / 452
TRANSMISSION AND TERMINATION OF THE MORTGAGE / 454
Mortgage transfer / 454
Mortgage settlement / 455
EXECUTION OF THE MORTGAGE / 455
Foreclosure of movable tangible property / 456
Execution of the mortgage on some representative titles / 462
Foreclosure on receivables / 463
Creditor 's liability / 463
CHAPTER III. GAJUL / 465
DEFINITION. LEGAL REGULATIONS / 465
LEGAL CHARACTERISTICS OF THE GAJ CONTRACT / 465
ADVERTISING THE PLAY / 466
EFFECTS OF THE HOLE / 467
SWITCH OFF / 468
CHAPTER IV. RIGHT OF RETENTION / 469
DEFINITION. LEGAL REGULATIONS / 469
FUNDAMENTAL RIGHT OF RETENTION / 470
LEGAL CHARACTERISTICS OF THE RIGHT OF RETENTION / 471
REQUIREMENTS NECESSARY FOR THE BIRTH OF THE RIGHT OF RETENTION / 471
ATTRIBUTES OF THE RIGHT OF RETENTION / 472
Prerogative to refuse to hand over the good / 472
Retention right guarantee function / 472
Extinction of the right of retention / 473
BIBLIOGRAPHY / 476
Treatises. Monographs. Courses / 476
Studies. Articles. Communications / 487
CONTENTS / 492
Civil Law. Obligations, in its second edition, provides students and masters with useful information on institutions specific to this part of civil law and the authors sought to present new elements of doctrine and judicial practice, the current edition taking into account the changes legislative, but also, to a certain extent, the evolution of judicial practice.
The authors tried to present the institutions in the field of civil obligations according to the current legal framework, taking into account the regulations of the Civil Code and those of other normative acts, and when deemed necessary, a comparative analysis was performed between the current regulation and that of Civil Code of 1864.
The authors' efforts materialized in the realization of a documented work on the institutions within the civil obligations, the course representing a study tool for students and masters of law faculties, but also a useful source of documentation for theorists and practitioners of law. The opinions, the points of view of the authors can be submitted to scientific discussions or debates, and these can be elements of analysis in order to improve the current legal framework.
The authors tried to present the institutions in the field of civil obligations according to the current legal framework, taking into account the regulations of the Civil Code and those of other normative acts, and when deemed necessary, a comparative analysis was performed between the current regulation and that of Civil Code of 1864.
The authors' efforts materialized in the realization of a documented work on the institutions within the civil obligations, the course representing a study tool for students and masters of law faculties, but also a useful source of documentation for theorists and practitioners of law. The opinions, the points of view of the authors can be submitted to scientific discussions or debates, and these can be elements of analysis in order to improve the current legal framework.
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