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THE SOURCES OF OBLIGATIONS UNDER THE NEW CIVIL CODE.

1. Introduction. The Concept of Civil Obligation

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

Some authors have criticized the legal definition as it prioritized the passive component of the obligation, i.e. starting from the debtor to the creditor and from the debt to the claim. Those authors would have preferred that the legal definition had started from creditor to debtor and from claim to debt, arguing that the ownership and other real rights were defined by attributes that they conferred upon their holder, and only correlatively, by their general duty of abstention (Pop et al, 2012: 12). The obligational legal relationship appears from the debtor's perspective, as a debt, and from the perspective of the creditor, as a claim. The right to claim is part of the patrimonial assets of the creditor and the debt is part of the patrimonial liabilities of the debtor. Thus, the civil obligation can be defined as the civil legal relationship under which a person named debtor is liable towards another person, named creditor, to give, do or not do something, under the sanction of state coercion in case of intentionally failing to execute (Filipescu and Filipescu, 2004: 15).

According to those authors who prefer that the order in definition begins with the creditor, the civil obligation is defined as the legal relation where one party, called creditor has the legal possibility to claim to the other party, called debtor, to execute his performance or performances to which he is bond, under the sanction of state coercion (Pop, 2006: 5). According to the monistic conception, the obligation consists of a single legal relationship between creditor and debtor; there are four components constituting 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 can be both individuals and legal entities, as provided in article 25 NCC (on the subjects of civil law). These are, generically, called, creditor and debtor, but in some varieties of civil obligations, they receive specific names, such as, for example: seller, buyer, lessor, lessee, principal, authorized agent, donor, donee, lender in a commodate, commodater, etc. In principle, the subjects of the legal relation of obligations are individualized from the very beginning of the bond, but there may be situations when the active subject is only determinable and not determined. This means that the active subject will be, in the future, determined based on criteria established at the beginning of the obligational relationship. Regarding the passive subject or the debtor, he should be always determined at the moment of emergence of the obligational relationship. In legal relations of environmental law, for example, it is determined primarily the holder of the obligation of doing or not doing something concerning the protection and improvement of the environment (Nicolau et al, 2010: 14). Concerning the determinable active subject, an example is the situation of the legal bond that is generated by the life insurance contract in favor of a third party (first grandchild to be born), when the creditor or third beneficiary will be determined only when the insured risk will occur (Pop, 2006: 20).

As we know, most of the legal obligational relationships are bilateral: each subject is at once both creditor and debtor. For example, in the case of a sale-purchase contract, the seller is creditor of the price and debtor of the obligation to deliver the asset sold, and the buyer is creditor of the right to request the delivery of the asset purchased and debtor of the price to be paid. However, there are also unilateral legal relations in which one party is only creditor, and the other is only debtor. For example, in the case of the legal relation emerged from a contract of donation, the donee is exclusively 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 of claim rights and duties of its subjects. The legal content is, thus, made up of the legal possibility of the creditor to claim, and of the debtor's legal duty to perform or execute the performance due (Pop et al, 2012: 15). As we have seen above, legal obligational relations can be bilateral, in which both subjects have simultaneously rights and obligations, but they can also be unilateral, meaning that just one party has rights, and the other has only obligations. The active component is made of claim rights, and the passive component consists of personal obligations or correlative duties (of giving, doing or not doing something that he/she could have done if he/she had not been committed). Usually, the content of the legal relationship of obligations is subjective, meaning that it is determined by the will of parties (obligational relations arising from legal documents), but there are also cases where the content of the legal relationship of obligations is objective being determined by the imperative law (obligational relationships arising 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 or the actual conduct to which the creditor is entitled and of which the debtor is liable and may consist of a positive performance (to give, to do) or a negative action or abstention (not to do something) which in the absence of the assumed obligation would have not existed. The object of the legal obligational relationship should not be confused with its content as the content of the legal relationship of obligations includes legal possibilities to claim and legal duties to perform certain actions or inactions, and the object includes specifically those actions or inactions, that the creditor or the debtor may claim and the debtor is bound to perform (Pop, 2006: 29).

The object of the legal relationship of obligations is not identical with the object of the contract, because as we mentioned above, the object of the legal relationship of obligations is represented by the very conduct or performance that the creditor may claim and the debtor is bound to perform, but the object of the contract is the legal operation that contracting 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 and article 1226 NCC, it is clear that the object of the contract is different from that of the obligation. Thus, under article 1225, paragraph 1, the object of the contract is represented by the legal operation, such as the sale, lease, loan and others, agreed by the parties as revealed by the set of rights and contractual obligations (Baias et al, 2012: 1286-1288).

Depending on their object, there are positive and negative obligations, but they are also classified in obligations of giving, doing or not doing, all of which will be analyzed below. According to article 1226 par. 2 NCC, under the penalty of absolute nullity, the object of the legal relationship of obligations must be determined or at least determinable and lawful. The validity terms of the obligation's object result from the analysis of this article. In other words, the performance must meet two validity conditions, namely: to be determined or at least, determinable and lawful.

5. The Sanction of Obligations

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

Thus, the sanction of the obligation is, from the creditor's point of view, the ensemble of offensive and defensive legal means that he can exercise, usually by using the coercive force of the state in order to obtain or keep the performance that it deserves from the debtor, and from the perspective of the other party, the debtor is represented by the legal means available to him under the law, to be debt free by executing the performance due when the creditor refuses or is unable to receive it, the debtor being interested to quash the obligational relationship through execution (Pop et el, 2012: 18).

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

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

Regarding the negative obligations of not doing, they generate no discussion whatsoever, meaning that any performance of this type is liable of execution against the will of the creditor since he cannot fight in any way against its execution.

6. Sources of Obligations

The old regulation knew four sources of obligations, namely: the contract, the quasi-contract (business management and payment of the undue work), the offence and the quasi-offence, the obligational relationships arising 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 the doctrine, 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 facts are considered to be sources of obligations. The legal documents consist of agreements 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 1166 NCC defines the contract as the agreement of wills between two or more persons with the intention to establish, modify or quash a legal relationship.

The unilateral legal document is according to article 1324 NCC that legal document containing only the declaration of intent of its author. Civil legal facts are those circumstances, other than agreements and unilateral manifestations of will, whether human behaviors or not; the law links to their occurrence, the emergence, amendment or termination of the legal obligational relationships. Thus, the civil legal acts are divided into legal facts--licit or illicit human conducts and legal facts that do not constitute human conducts. Regarding the legal facts--illicit human conducts, they are those human actions or inactions caused by the breach of mandatory rules of law. This category includes the civil liability for damage.

Regarding the legal facts--licit human conducts, they are those human actions that do not breach the mandatory rules of law. Business management, undue payment and unjust enrichment are included in this category.

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

The new Civil Code, article 1165 provides that the obligations arise from the contract, unilateral act, the business management, the unjust enrichment, the overpayment, the illicit act and from any other document or fact to which the law binds the birth of an obligation. The analysis of the text reveals that the legislature intended expressly to list only those sources of obligations, which are undisputed. As it can be seen, the legislature included in the legal enumeration, the unjust enrichment and the unilateral legal document as distinct, independent sources. The wording at the end of the text according to which obligations may also arise from any other document or fact to which the law binds the birth of an obligation, allows the inclusion in the category of obligations, of other sources of facts or circumstances stipulated in other texts of the Civil Code, as well as in other laws except for those expressly enumerated and named in article 1165 NCC. Such circumstances stipulated in the new Civil Code, such as: damages caused by the animals and things that we have in our legal guardianship (article 1375 to 1377); damages caused by the ruin of a building (article 1378); but, there may be added also other circumstances which are set out in the provisions of some laws, such as damages caused by defects of products marketed (Law no. 240/2004) ; damages caused by judicial errors (article 52 par. 3 of the Constitution, article 96 of Law no. 303 on the statute 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. The general theory of obligations, Bucharest: Universul Juridic Publishing House.

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

Pivniceru, M. M. (2012), The new Civil Code and previous regulations. 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 Publishing House.

LILIANA MARILENA LAZAR

lilianalazar2013@gmail.com

Spiru Haret University
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Author:Lazar, Liliana Marilena
Publication:Contemporary Readings in Law and Social Justice
Article Type:Report
Geographic Code:4EXRO
Date:Jul 1, 2017
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