-
Enforcement in kind of the obligation to do resulting from a synallagmatic promise to contract cannot be enforced in kind, a situation which determined the legislator to identify a substitute means to replace the actual enforcement and to produce the desired effects in the patrimony of the contracting parties. The present study aims to analyze the substitute remedy of the judgment replacing the contract from the perspective of the local judge, who is facing in the process of solving such requests with a series of specific procedural and substantial impediments. Aspects such as the legal nature of the obligation to enforce, the prescription of the substantive right to action, the referral to the arbitral tribunal, the legal nature of the action filed, the modality of designing the operative part of the judgment and others similar are key points of the study, and their analysis tries to determine such an understanding from the courts of law of this specific and special mechanism among the contractual remedies. -
Cross-border private life is under the rule of legislative changes occurred in the European law and in the national private international law. The property regimes of the international couples benefit from parallel regulations – the Regulation „matrimonial regimes” and the Regulation „registered partnerships”, for the states participating in enhanced judicial cooperation, the national law respectively, for the other Member States. Although they have different sources (the marriage, the registered partnership), the matrimonial regime and the partnership regime have multiple areas of convergence (the role of the will of the parties in determining the law of the patrimonial regime and in designating the competent court of law, the objective location of regimes, the most connecting factors). At the same time, the elements that differentiate the property regime of the spouses and of the partners configurate the specifics of the couples’ unions and the instruments of achieving the predictability and security of the civil circuit with an element of extraneity. -
This research, analyzing in detail the decisive historical moments for the institution of the notary public, emphasizes the importance of preventing the legal disputes. The authors assume the preference for avoiding a legal dispute as compared to its settlement, keeping and declaring publicly the admiration for the professionals who assist or represent the litigant on the daring and difficult road to „justice”. Briefly passing the medieval period of the presence of the notary public in Transylvania, emphasizing the importance of the papal notary or of the prince’s chancelleries, insisting on the period of formation of Greater Romania and then of the legislative reform imposed after the Great Union, the article identifies the acts and draft normative acts in this matter, which emphasize the usefulness of the profession, the superior professional training of the notary public and the trust that the citizen or the state, regardless of the arrangement, had and still has in the professional notary. The entire research emphasizes new documents, draft normative acts unknown to the general public and it finally defines conclusions, which demonstrate both the permanence of the profession, the role of justice of the peace of the notary public, and his consistent contribution to achieving the „preventive justice”.
-
The study begins with defining the pre-contractual period and with revealing its importance in the process of forming the contracts by free negotiations or, as the case may be, by conventionally organized negotiations. The deontology of negotiations for the formation of contracts is also defined. It follows from this definition that, mainly, the content of the deontology of free pre-contractual negotiations is made up of the obligations with value of limits of the freedom to negotiate. These obligations or limits are of two types: some of them are legal, being expressly provided by law, by imperative norms or, as the case may be, by dispositive norms, and others implicit. At the core of these obligations is the mandatory legal obligation of the negotiating partners to comply with the exigencies of good faith. Good faith is a proteiform concept or notion, a standard with the value of a general principle, flexible and open, which makes it possible to adapt it to the concrete circumstances and conditions of the formation and execution of each contract. Thus, in the matter of concluding contracts, good faith governs any pre-contractual negotiations, whether they are free or are conventionally organized. Moreover, this obligation is expressly, clearly and imperatively established in the texts of Article 1183 of the Civil Code, being an application of the general principle of good faith in contractual matters, established with special force in Article 1170 of the Civil Code, corroborated with Article 14 of the Civil Code, which concerns the exercise of any right and the execution of any obligation. Being a complex notion, a concept with a proteiform structure and flexible in its content, good faith is the source of the origin and of the existence of the other rules and obligations that make up the content of the deontology of free negotiations for the progressive formation of contracts. From among these obligations there are analyzed the following: the obligation of pre-contractual information, the obligation of confidentiality, the obligation of counselling, the obligation of prudence or abnegation, the obligation of exclusivity, the obligation of coherence and the obligation of cooperation. The author tries to argue that some of these obligations, especially the implicit ones, have as a foundation and source, in addition to the general obligation of good faith, also the principle of contractual solidarism.
-
After a summary examination of the mechanisms that develop the unilateral and conventional resolution, the author finds that the specific formalism established by the Civil Code for achieving the objectives of the pacts agreed by the parties is – in some situations – difficult to fulfil, in the context in which the partners do not know or cannot rigorously follow the steps required by the delay procedure. The uncertainties that the mechanism can produce in special conditions are observed and, then, practical solutions are suggested, starting from the premise – generally accepted – that the commission pact is itself a subsequent and accessory convention to the fundamental contract.
-
The study examines the possibility of bringing into a limited liability company as a social contribution a good subject to a conventional right of pre-emption. The right of pre-emption is linked – by its nature, as well as by the regulation of the Civil Code – to the contract of sale and gives a preference – at an equal price – to a certain buyer, designated by law or by contract. Failure to comply with the pre-emption cancels the contract made with the third party and the pre-emptor becomes the acquirer if he makes the price available to the seller. The bona fide third party is guaranteed for eviction by the seller. The contribution in a limited liability company does not make a sale although it produces a transfer of ownership from the contributing partner to the company, because the partner does not receive a price but a participation in the company where the contribution is made. Therefore, the contribution of a good affected by a right of pre-emption cannot be refused to the receiving company by the Trade Register Office, on the ground that against it (the company) – acquiring third party – a preference for acquisition can be invoked by the conventional pre-emptor; this, even when the right of pre-emption is accepted against an offer of alienation.
-
În cazul în care asigurătorul nu-și îndeplinește obligația de a preciza motivele refuzului de despăgubire, atunci datorează penalități de întârziere de la data expirării termenului de 30 de zile, care începe să curgă de la data solicitării de acordare a despăgubirilor formulate de persoana prejudiciată. (Curtea de Apel Pitești, Secția a II-a civ., Decizia nr. 498 din 17 mai 2021)
-
Making the due observations regarding the legal content of Article 6 of the Law No 143/2000, republished in 2014, the authors came to the final conclusion that Article 6 of the mentioned law contains three distinct incriminations regarding the high-risk drug trafficking. Thus, Article 6 (1) of the Law No 143/2000, republished, includes the crime of high-risk drug trafficking, representing the medically unnecessary prescription of such substances by a doctor. In paragraph (2) of Article 6 of the same law it is incriminated the high-risk drug trafficking, by releasing such substances from pharmacies on the basis of a recipe that includes a prescription that is not medically necessary or is falsified. In paragraph (3) of Article 6 of the same law, the high-risk drug trafficking is incriminated, by obtaining such substances from a pharmacy based on a fictitious medical recipe. In conclusion, the authors state, if a drug addict doctor prescribes to himself high-risk drugs on a recipe without being medically necessary and obtains them from a pharmacy, he will commit two crimes in real concurrence, namely the one provided in Article 6 (1) and the one provided in Article 6 (3) of the Law No 143/2000, republished.
-
As a result of the measures taken at the level of the Member States in order to combat the COVID-19 pandemic, the statistics show that the number of teleworkers has increased and, at the same time, telework can become an „endless job” with negative effects on the mental and physical health condition of teleworkers. In this context, at the level of the European Union, it was appreciated that it is necessary to secure the labour relations of teleworkers by unification of the legislations of the Member States in terms of the right to disconnect. The implicit way of regulating this right, which also exists in Romania, does not create an adequate protection for teleworkers. Exercising the right to disconnect implies a clear delimitation of the working time and of the rest time and the obligation of employers to monitor and measure the daily working time provided by teleworkers, as it results from the case law of the Court of Justice of the European Union. The role of the social partners is essential for the implementation of the right to disconnect and appropriate individual information measures must be taken in order to ensure that the employee is sensitized and made aware of the risks associated with permanent availability. Artificial intelligence creates the premises for telework to evolve into smartworking, which gives the teleworker full autonomy in choosing the place where he performs work.
-
The cases that justify a home search are still the subject of important controversies both in doctrine and especially in practice. Also, the delimitation between the situation in which the criminal investigation agents enter a person’s home in order to carry out a home search and the situations in which the police agents are obliged to enter a home to fulfil their duties is of ten extremely sensitive. It is precisely these controversies that often lead state agents to be reluctant to enter a private space in order to avoid being accused of committing a crime. We hope that this study will prove to be a useful tool in identifying those hypotheses in which it is really necessary to resort to a home search as well as the criteria for delimiting the search and other institutions of criminal procedural law.
-
We are witnessing tremendous progress in the fields of biology and medicine, which consist the possibility to take human cells, tissues and organs for the purpose of their transplantation into another subject’s body, genetic engineering operations, medically assisted human procreation and many other such revolutionary techniques. All of these have proven to be two-edged weapons: on the one hand, they can be used to save lives or to help some couples who, under normal conditions, cannot procreate to give birth to the much-desired children and, on the other hand, they can turn into threats to the human genome or to the social cohesion. It has become necessary for man himself to be the object of legal protection, and, at the same time, a new category of things has emerged, namely the biological products of the human body and the elements detached therefrom, which are intended to be used for therapeutic or research purposes. Thus arose the problem of the legal qualification of these things, which also raised the issue of the existence of a relationship between the subject of law and his body. The doctrinaires are divided into two camps: one that considers that between the subject of law and his body, qualified as a thing, there is a legal relationship of property and another that claims that the human body is the person himself. The qualification of the human body as a thing, the transformation into things of some of its products and of some elements detached therefrom, as well as the possibility of capitalizing on some personality rights, such as the right to voice and the right to image, are part of a process which was called the reification of the person. It is a constantly evolving process which has already included the controversial gestation for another as well. The present study is devoted to the identification of the dangers generated by the qualification of the human body as a thing, with special regard to the gestation for another.
-
In ipoteza în care s-a realizat un transfer electronic al unei sume de bani ca urmare a solicitării primite din partea beneficiarului sumei respective, atunci între părți a intervenit un contract de împrumut, restituirea sumei poate fi solicitată doar pe calea unei acțiuni personale întemeiate pe respectivul contract, iar nu pe calea unei acțiuni întemeiate pe îmbogățirea fără justă cauză. (Curtea de Apel București, Secția a III-a civilă și pentru cauze de minori și de familie, Decizia nr. 62 din 26 ianuarie 2021)1 .
