Academic journal article Contemporary Readings in Law and Social Justice

The Sources of Obligations under the New Civil Code

Academic journal article Contemporary Readings in Law and Social Justice

The Sources of Obligations under the New Civil Code

Article excerpt

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 salepurchase 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. …

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