Ad Validitatem and Ad Probationem Forms in Notice of Real-Estate Sale

Article excerpt

ABSTRACT.

We have chosen this topic for debate because it supposes fewer aspects of theory and judicial practice encountered in legal activity. The form of the civil juristic act required by the real estate publicity procedure is different depending on the legal operation that must be registered with the Real Estate register. For this field comprises a lot of types of legal acts and juridical operations, we preferred to focus on the real estate only. The paper describes the form of the civil juristic act and of the real estate publicity regarding legislation in force and underlines the importance of juristic act's form in relation with real estate publicity and its forms.

Keywords: legal deed, form, ad probationem, ad validatem, real estate publicity

1. Introduction

The paper approaches the real-estate field from the perspective of the civil juristic act form and that of specific to real-estate publicity operations and the Real Estate Register. Regarding the civil law as discipline of study in each academic year, and the real-estate publicity as a distinctive discipline of study, and a part of real rights, we may say that this is an interdisciplinary approach.

Due to the fact that the New Civil Code (NCC) comprises the legislation regarding the real-estate publicity, thus completing the special law (Law 7/1996), the present paper brings an element of novelty which consists of the way of combining the juristic act form with the special operations in real-estate publicity. We shall describe the different types of real-estate registration, the form required by the law and the sanctions, all of that in the light of the new civil Code.

To meet the target objectives, we analyzed the legal texts, substantive law, material law, procedural law, reporting to the judicial practice. The case-law regards the real estate offices subject to the Court of Appeal Constanta, to which we had direct access. We shall discuss as well, cases that were brought to the court on the denial of registering with the realestate Register office grounds.

The field analyzed in this paper is quite new, as the civil legislation is new. Though the Romanian Civil Code came into force at October 1, 2011 and regarding its provisions there were made a lot of comments by scholars and practitioners, there were no explicit and exclusive approach of the civil juristic act in relation to the real-estate publicity. Thus, one shall find in special literature (courses, monographs, readers of jurisprudence) approaches of the civil juristic act, its form with distinctive analyses of ad validitatem and ad probationem forms, the property right' analyses and its mode of acquiring, the registration to the Real Estate Register Office, the specificity of this kind of registering and ways of their deletion.

Our paper does not approach the real-estate publicity by its identification with the third form of the legal juristic act, respectively, the opposability to third party focusing, on the contrary, on the applicability of the first two forms of the real-estate publicity core matters. There are also little notes, for there is no generous bibliographical reference to the matter, moreover the paper presents the outcome of our research in practical field, rather than a theoretical approach.

2. Civil Juristic Acts. Ad validitatem and ad probationem Forms

The juristic act represents the will showed in order to produce legal effects, respectively, to commence, to alter or terminate a concrete civil legal relation.1 The definition itself did not change once the new regulation in civil law came into force, being a fundamental concept of the introduction in civil law discipline.

As for the form of civil juristic act, its represents the extemalization of the will, strictly speaking, or it presents ad validitatem or ad solemnitatem, form of ad probationem and the opposability of the juristic act to the third party, broadly speaking. …