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În cazul în care, prin contract, întreținerea a fost constituită în favoarea unei terț, această persoană are doar dreptul de a cere executarea contractului, nu și pe acela de a cere rezoluțiunea pentru neîndeplinirea obligațiilor. În lipsa unei prevederi exprese în cuprinsul secțiunii care reglementează contractul de întreținere, sunt pe deplin aplicabile normele de drept comun care reglementează stipulația pentru altul, iar acestea prevăd în mod clar că stipulantul este singurul care poate revoca stipulația [art. 1287 alin. (1) C.civ.], beneficiarul având doar dreptul de a solicita executarea [art. 1284 alin. (2) C.civ.]. (Curtea de Apel Timișoara, Secția I civilă, Decizia nr. 235 din 11 iunie 2020, www.rolii.ro1 ) -
n cazul în care contractul de transport a fost încheiat prin intermediul unei case de expediții, în lipsa unei prevederi contractuale exprese sau a unei prevederi legale, nu se poate solicita de la respectivul intermediar repararea prejudiciului cauzat transportatorului ca urmare a avariilor determinate de marfa transportată și care nu a fost ambalată în mod corespunzător. În plus, dacă transportatorul nu a făcut rezerve cu privire la marfa primită, conform art. 9 din Convenția referitoare la contractul de transport internațional de mărfuri pe șosele (CMR) există prezumția că mărfurile transportate au fost în bună stare. (Curtea de Apel Constanța, Secția a II-a civilă, Decizia nr. 50 din 10 februarie 2020, www.rolii.ro)
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Reclamanții nu pot solicita în temeiul răspunderii civile delictuale daune de la un terț pentru degradări aduse imobilului în condițiile în care au cumpărat imobilul în anul 2018 prin contract de vânzare-cumpărare în formă autentică și puteau invoca răspunderea civilă contractuală pentru vicii sau pentru evicțiune. Acțiunea în răspundere civilă delictuală este o acțiune personală care aparține proprietarului imobilului de la momentul producerii faptei ilicite și potrivit art. 1707 alin. (4) C.civ. reclamanții nu au dreptul să se plângă privitor la starea construcțiilor dobândite, deoarece lucrul dobândit are exact calitățile pe care le așteptau de la el. În categoria drepturilor accesorii se pot include drepturi reale (opozabile erga omnes), cum este, spre exemplu, dreptul de servitute, care se transmite automat odată cu înstrăinarea fondului (dominant sau aservit). În ceea ce privește eventualele drepturi personale consimțite de vânzător, ca regulă generală, acestea nu se transmit la cumpărător, care este un având cauză cu titlu particular. (Curtea de Apel Craiova, Secția I civilă, Decizia nr. 223 din 16 martie 2021,www.portaljust.ro) -
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The study of the contract of audiovisual adaptation has been imposed for multiple reasons. Firstly, as no contract of transfer agreement of the author’s patrimonial rights, which includes also the contract of audiovisual adaptation, does not have its own regulation in the Civil Code (Law no. 287/2009). Consequently, the current article deals also with the problem of the incidence of the norms of common law on the analyzed contract. Secondly, the research was also determined by the fact that in the Law no. 8/1996 regarding the author’s rights and the associated rights this type of contract was allocated a laconic regulation, i.e. only in a single article of law. Thirdly, the discussion of this topic was necessary as the norms dedicated to the contract of audiovisual adaptation included in the special Law are not clearly, fluently and comprehensively enough formulated, presenting quite a few faults lacunae and even imprecision, which the author highlighted, sometimes under the form of de lege ferenda proposals. -
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Comprised in the study presented hereafter, starting from the abbreviated provision of article no. 46 from Law no. 8/1996 concerning the ordering agreement, the author analyzes from a critical point of view these provisions in relation to other provisions comprised within the special law, and also to those by the Civil code (Law no. 287/2009). The legal provisions referred to herein are digested by means of exemplifying case studies from internal, and European jurisprudence. Therewith, the author emphasizes the controversial points of view from the professional community belonging to well-known writers, and subsequently states personal opinions regarding the approached subjects.
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The introductory part of the study analyzes the regulatory framework of the current bank account contract before and after the entry into force of the current Civil Code and the transitional legal provisions, depending on the limited and unlimited duration of this contract. In dealing with the legal relationship generated by the current bank account contract, it was emphasized that at least one of the contracting parties must be a credit institution and that the obligation to conclude the current bank account contract for certain categories of natural or legal persons is conditioned by the legal constraints regarding the mandatory way of carrying out the receipts and payments imposed by the strengthening of the financial discipline, without this giving the contract a mandatory or forced character. As regards the content of the contract, its standardized character was underlined, including in terms of the system of transferring external clauses or specific regulations related to the policy of each bank in the contractual clauses referring thereto, of which the client is not aware and which often introduce abusive clauses. From this perspective of the adhesion character of the contract, which deprives the client from legal protection, the modest framework of the regulation has a significant contribution. The object of the current account contract is treated in terms of the obligation of the credit institution to open the account and to carry out the credit or debit operation of the credit balance, but also of the client’s right to dispose of the credit balance and of its obligation to bear the bank commissions and charges. The legal characters of the current bank account contract were also analyzed, the attention being paid to the treatment of the adhesion character of the contract and to the one of transfer of ownership, because the latter can explain the whole mechanism of the contract functions. The exercise of the right of the account holder to dispose over the credit balance is supported by the current bank account contract, through which the credit institution makes payments in the name and on behalf of the account holder, in compliance with the instructions with which he mandated it, in accordance with the relevant banking legislation and regulations, including with the internal rules of the depository bank. As regards the manner of exercising the right to dispose of the credit balance, the particularities of the exercise of this right by co-owners and co-holders were analyzed, as well as the issue of unavailability of the credit balance, the conditions and the limits of unavailability, by enforcement by garnishment. The clearing of balances, the conditions of its operation and its extended effects on the legal relations between the account holder and the credit institution were also discussed. The double onerous character of the current bank account contract was analyzed also from the perspective of the bonuses granted by the credit institution for the amounts in the credit balance, but also from the perspective of the account holder, bound by the obligation to pay bank commissions and charges. The cessation of the current bank account contract was treated according to its definite or indefinite duration and depending on the existence of general or special clauses of cessation of the contract. The procedure of unilateral denounciation of the current bank account contract was associated with the written communication of the denouciation and the term of legal notice, conventional or established according to the customs. The effects of the cessation of the contract are accompanied by the closing of the account, by the withdrawal by the client of the amounts remained in the credit balance or their deposit in a collector account until they are handed over to the client. The prescription term for the refund of the amounts from the account is that of 5 years and the moment from which it starts to flow is provided by Article 2190 of the Civil Code, differentiated as the cessation of the contract occurred on the initiative of the account holder or of the credit institution. -
The study analyzes the current account contract as an effective technique for simplifying long-term contractual relations, in the context of a large business volume, with its lending function. The legal definition of the contract has revealed that this contract performs, through the novation mechanism, a function integrating receivables coming from other contracts and operations of the parties in the current account, and the settlement of accounts is carried out through the offset system. In addressing the legal characters of the current account contract emphasis has been placed on its intuitu personae character and arguments have been brought for combating the thesis of the ancillary character of this contract in the relation to the contracts and operations generating receivables recorded in the account. The effects of recording of the receivables in account (of extension of maturity and of unavailability) and the category of receivables incompatible with this recording in account, as well as the legal consequences of closing the account before deadline, which pave the way for the execution of the credit balance, have also been analyzed. The effects of the recording of receivables in the account have also been analyzed from a fiscal perspective, related to the application of VAT and of the profit tax. The current account was also analyzed in the context of the insolvency procedure, as a means of maximizing the debtor’s assets and of its beneficial effects in the process of judicial reorganization. The main effects of the current account contract have been discussed under the translative aspect of the property right, marked by the moment of recording the receivable in the account, under the aspect of novation, as a legal instrument of integration in the account of the receivable, generated by the original contract or by the operation performed between parties from the perspective of offsetting the two amounts of receivables, from which the credit balance results, as a liquid and exigible receivable, susceptible to execution. The examination of the side effects of the current account contract refers to the interest applied to each receivable registered in the account and to the credit balance, as well as to the commissions and expenses related to the legal operations generating the receivables recorded in the account. Regarding the closing of the account, the two hypotheses have been analyzed, the one related to the final closing of the account, which coincides with the termination of the current account contract, and the one regarding the periodical closing, as well as the legal regime of the credit balance, resulting from the offset within each of the two hypotheses. The aspects regarding the presumption of approval of the credit balance, of its contestation after approval, in connection with the material errors and the legal action for the rectification of these errors have not been omitted either. Finally, there have been discussed the modalities of termination of the current account contract on the deadline and by denunciation, in respect of the contracts concluded for an indefinite period.
