Considerations regarding the Sale and Purchase Agreement from the Perspective of the New Civil Code and Civil Procedure Code

By Lazar, Patrick Rares | Contemporary Readings in Law and Social Justice, July 1, 2013 | Go to article overview

Considerations regarding the Sale and Purchase Agreement from the Perspective of the New Civil Code and Civil Procedure Code


Lazar, Patrick Rares, Contemporary Readings in Law and Social Justice


ABSTRACT.

On October 1st, 2011 came into force the New Civil Code, a law of a major importance and probably of historical significance, taken into account that the former regulation dated from year 1864. On February 15th 2013, the New Civil Procedure Code came into force, which repealed a regulation dated from 1865. Within the new Civil Code, the sale and purchase contract maintains the major importance it had through centuries and when it comes to litigations it may bring regarding its closing, effects and cession, the coming into force of the Civil Procedure Code gains importance for this area.

Keywords: Contract of sale, New Civil Code, New Civil Procedure Code

The sale-purchase agreement (the new civil Code uses the denomination of sale agreement) presents a major importance for the Romanian civil law, being amply regulated, largely argued and discussed in doctrine and extremely frequently used in practice.

The doctrine upheld that the sale is the most used civil agreement because it ensures the legal circulation of assets and other patrimonial values;1 it was shown that the sale-purchase represents the "archetype of agreements" and, from that, the authors of the civil Code of 1864 formulated their reasoning when set the framework of the common legislation for obligations.2

The article 1294 of the 1864 civil Code drew the general coordinates of the sale and purchase agreement, e.g. it represented a contract by which one of the parties, the seller, transferred the property over an asset of his/her own towards the other party, the buyer, who was bond to pay the price for the sold asset.

Broadly speaking, the object of the sale and purchase agreement may regards other real rights as well, not only the right of property, but that of right of claim, intellectual right, or even, as an exception (articles 13991401 civil Code of 1864) the right over an universality (rights and debts, active and passive included), as it is the case of an inheritance.

Some authors, when formulating the definition of the sale and purchase agreement, meant this extended object of the sale and purchase agreement, extrapolating the legal definition.

In this sense, the sale and purchase agreement was defined as an agreement by which one of the parties (the seller) transfers to the other party (the buyer) for a precise amount of money, called price, a right of property over a certain asset or a specific legal universality (which comprises rights and obligations), another real right, a right of claims or a court action of patrimonial nature along with the litigious respective right.3

Until October 2011, the sale and purchase agreement was regulated by articles 1294-1404 of 1864 civil Code; the commercial Code contained as well regulations regarding the sale (the commercial one) within articles 6073.

In the former legislator's understanding, the commercial sale had no essential differences from the civil sale; the differences rooted from the fact that the commercial sale was subject to some special commercial relationship rules (articles 42, 43, 46-47 commercial Code). These special rules were completed by general rules in the field of sale, provided by the civil Code of 1864.4

Now, the common legal framework of relevant provisions in the field of sale is provided in Chapter I of Title IX of the Book V of the new civil Code of 2009 (that came into force at October, 1st 2011), but there are also other statues regulating the field of sale in our positive law.

According to the paragraph (1) of article 1650 new civil Code the sale is the contract by which the seller transfers or, if case may be, obliges to transfer to the buyer the property of an asset for a price which the buyer obliges to pay.

According to the article 1650, paragraph (2), new civil Code, by means of sale one can transfer the dismemberment of ownership or any other right; to this respect, the object of a transfer by means of sale may be a real right, a right of claim, a right of intellectual property or rights of succession nature. …

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