Comparative Analysis between the Exception of a Non-Performed Contract and Potestative Duties

By Căzănel, Maria | Contemporary Readings in Law and Social Justice, July 1, 2017 | Go to article overview

Comparative Analysis between the Exception of a Non-Performed Contract and Potestative Duties


Căzănel, Maria, Contemporary Readings in Law and Social Justice


1.Introduction

Legal literature specifies the fact that non-ancillary rights in rem and claim rights do not encapsulate the entire sphere of subjective civil rights, due to the fact that there are rights which, owing to their characteristics, cannot be included in any of these categories (Reghini et al, 2007: 28; Jurca et al, 2005: 29-31). For example: the right of presenting the statement of acceptance of inheritance gives the heir the possibility of accepting the inheritance or to give it up; the party's right to terminate a contract gives it the opportunity to end the legal relationship which the contract had created between the parties; the right of pre-emption; the right to retract; the right "of communization" a wall which separates two neighboring concepts; the right to consent to the contract, acquired by the beneficiary of a unilateral promise to contract; the right to confirm a voidable act; the creditor's right to make a choice between judicial and non-judicial unilateral rescission, under the provisions of article1550 of paragraph 1 of the New Civil Code etc. These rights differ from the non-ancillary rights in rem and the claim rights, through the fact that their subject is a legal situation and not a specific item, as in the case of non-ancillary rights in rem, nor the activity of another person (the debtor), as in the case of claim rights.

Thus the doctrine coined the notion of potestative law, meant to designate the separate category of subjective rights; characterized by the fact that the holder is awarded the power to intervene in the existing legal situation (to make adjustments or to terminate them), or create new legal situations, through a private and unilateral activity (See Reghini, 2003: 236; Chirica, 1999a: 45; Chirica, 1999b: 31; Chirica, 2001: 28, Deleanu, 2002: 23; Stoica, 2003: 55-58).

2.The Exception of a Non-performance Contract in Relation to Potestative Rights

Potestative rights constitute a heterogeneous category, as some are patrimonial property rights and others are not. Some are related to certain non-ancillary rights in rem (the right of "communization" of the wall that separates two neighboring areas, according to article598 of the Civil Code in 1865 - the current regulation in article666 of the New Civil Code (Pop and Harosa, 2006: 208)), others are related to claim rights etc. However, potestative rights have a series of common features:

2.1.The potestative rights focus on a legal situation (present or future) that terminates or changes after their execution.

For example, exercising the right to unilaterally terminate a contract, extinguishes the legal situation created, following the conclusion of the respective contract.

This legal situation may even be possible, such as the right of pre-emption, which concerns the situation of a potential sale of the property.

Sometimes, the respective legal situation may be uncertain, meaning that, mutations can intervene in its contents, which are in the power of the holder of the potestative right. For example, in the case of an alternative liability (Articles 14611467 of the New Civil Code), as long as the party, entitled to make the choice, expresses no choice, one cannot know whether the requirement will be achieved through the execution of one or other benefits that form its object. Once the choice is made, the uncertainty disappears because the liability ceases to be alternative and simultaneously becomes nothing more than a simple lability (Reghini, 2003: 237; Mihai, 2012: 85).

Considering the fact that, such rights give the holder the possibility of a choice and are achieved through an option, they are also called "optional rights" (Boyer apud Reghini, 2003: 238). They are exercised by the holder, which chooses one of the alternatives offered by the law or a contract. In addition, the situation is characterized by the uncertain nature of the legal scenario, which is the subject of the legal right. …

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