Civil Code of the Republic of Moldova
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Version in force as at 1.02.2025
CODE No. 1107
of 06-06-2002
CIVIL CODE OF THE REPUBLIC OF MOLDOVA
Published: 01-03-2019 in the Official Gazette No. 66-75 art. 132
BOOK ONE GENERAL PROVISIONS.
BOOK TWO REAL RIGHTS
BOOK THREE OBLIGATIONS
BOOK FOUR INHERITANCE
BOOK FIVE PRIVATE INTERNATIONAL LAW
Parliament adopts this code.
BOOK ONE GENERAL PROVISIONS
Title I COMMON PROVISIONS
Chapter I CIVIL LEGISLATION
Article 1. Principles of civil legislation
(1) Civil legislation is based on the recognition of the equality of participants in the relationships regulated by it, the protection of intimate, private and family life, the recognition of the inviolability of property, of contractual freedom, the protection of good faith, the protection of the consumer, the recognition of the inadmissibility of interference in private affairs, the need for the free exercise of civil rights, the guarantee of the restoration of the person to the rights in which he has been injured and their defense by the competent jurisdictional bodies.
(2) Civil rights may be limited by organic law only on the grounds provided for by the Constitution of the Republic of Moldova.
Article 2. Relations regulated by civil legislation
(1) Civil legislation determines the legal status of participants in the civil circuit, the grounds for the emergence of property rights and the manner of exercising them, regulates contractual and other obligations, other patrimonial and personal non-patrimonial relations between the subjects of civil legal relations.
(2) Family, housing, employment, exploitation of natural resources and environmental protection relations, which correspond to the provisions of paragraph (1), are regulated by this code and other laws.
(3) Relations on the realization and protection of human rights and fundamental freedoms, other non-patrimonial values are regulated by this Code and other laws in light of the provisions and principles established by international treaties on human rights and fundamental freedoms.
(4) Subjects of civil legal relations are natural and legal persons, those who have business status, as well as those who do not have this status.
Article 3. The consumer and the business
(1) Any natural person who, within a civil legal relationship, acts predominantly for purposes other than those of a business or profession shall be considered a consumer. The natural person shall not be considered a consumer if the other party to the civil legal relationship is not a business.
(2) Any natural or legal person of public or private law which, within a civil legal relationship, acts for purposes related to entrepreneurial or business activity, even if the person does not aim to obtain a profit from this activity, has the status of business.
(3) A person who, in a civil legal relationship, complies with both the provisions of paragraph (1) and the provisions of paragraph (2) shall be considered a consumer if the recognition of this quality offers him/her a certain legal protection, and in other cases the person shall be considered a business.
Article 4. Civil legislation
(1) Civil legislation consists of this code, other laws, Government ordinances and normative acts subordinate to the law, which regulate the relations provided for in art. 2 and which must be in accordance with the Constitution of the Republic of Moldova.
(2) Normative acts subordinate to the law shall apply to the regulation of civil relations only in cases where they are issued pursuant to the law and do not contradict it.
(3) Civil legislation shall be interpreted and applied in accordance with the Constitution of the Republic of Moldova, the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as with other treaties to which the Republic of Moldova is a party.
(4) In interpreting and applying civil legislation, account shall be taken of the need to promote the uniform application of legal provisions, good faith, and legal certainty.
Article 5. Usage
(1) Usage is a rule of conduct which, although not provided for by law, is widely recognized and regularly observed in a certain area of civil relations.
(2) Usage shall apply only if it does not contravene the law, public order and good morals, as well as the juridical act.
Article 6. Analogy of act and analogy of law
(1) In the event of non-regulation by law or by agreement of the parties and lack of usage, the relations provided for in art. 2 shall be applied, unless this contradicts their essence, to the norm of civil legislation regulating similar relations (analogy of act).
(2) If the application of analogy of act is impossible, the rights and obligations of the parties shall be determined according to the principles of civil law and equity (analogy of law).
(3) The application by analogy of rules that limit civil rights or that establish civil liability is not allowed.
(4) The court is not entitled to refuse to administer justice in civil cases on the grounds that the legal norm is missing or unclear.
Article 7. Application of civil law in time
(1) The civil law is not retroactive. It does not modify or abolish the conditions for the establishment of a previously established legal situation, nor the conditions for the termination of a previously extinguished legal situation. Likewise, the new law does not modify or abolish the effects already produced by a extinguished or in-progressing legal situation.
(2) The new law is applicable to legal situations in progress on the date of its entry into force.
(3) From the date of entry into force of the new law, the effects of the old law cease, except in cases where the new law provides otherwise.
(4) In the case of contractual legal situations in progress on the date of entry into force of the new law, the old law will continue to govern the nature and extent of the rights and obligations of the parties, as well as any other contractual effects, unless the new law provides otherwise.
(5) In the situations provided for in paragraph (4), the provisions of the new law shall apply to the modalities of exercising rights or performing obligations, as well as to their alienation, takeover, transformation or extinction. Also, unless the new law provides otherwise, the clauses of a juridical act concluded prior to the entry into force of the new law contrary to its mandatory provisions shall, from that date, be devoid of any legal effect.
(6) The provisions of the new law regarding both extinctive and acquisitive (usucapion) limitation periods shall apply to the limitation period that began to run before the date of its entry into force and did not expire before that date. In this case, the previously running period shall be taken into account. The beginning, suspension and interruption of the limitation period shall be determined, for the period prior to the entry into force of the new law, by the old law.
(7) If the limitation period provided for by the new law is shorter than that provided for by the old law, then, starting from the date of entry into force of the new law, a new limitation period shall begin to run under the conditions of the new law. In this case, the previously running period shall not be taken into account. The provisions of this paragraph shall also apply if the new law declares the right to action to be subject to extinction which, according to the old law, was subject to extinction.
(8) In the case referred to in paragraph (7), if the limitation period provided for by the old law expires before the limitation period provided for by the new law, the limitation period shall be fulfilled upon the expiry of the period established by the old law.
Article 8. Civil legislation and international treaties
If the international treaty to which the Republic of Moldova is a party establishes provisions other than those provided for by civil legislation, the provisions of the international treaty shall apply.
Chapter II
THE EMERGENCE OF CIVIL RIGHTS AND OBLIGATIONS.
EXERCISE AND DEFENSE OF CIVIL RIGHTS
Article 9. Grounds for the emergence of rights
and civil obligations
(1) Civil rights and obligations arise under the law, as well as based on the acts of natural and legal persons which, although not provided for by law, give rise to civil rights and obligations, starting from the principles of civil legislation.
(2) Civil rights and obligations arise:
a) from contracts and other juridical acts;
b) from acts issued by a public authority, provided by law as the basis for the emergence of civil rights and obligations;
c) from a court decision establishing rights and obligations;
d) following the creation and acquisition of property on grounds not prohibited by law;
e) following the development of intellectual property objects;
f) as a result of causing harm to another person;
g) following unjust enrichment;
h) following other acts of natural and legal persons and events to which the law links the occurrence of legal effects in civil matters.
Article 10. Exercise of rights and enforcement
obligations
(1) Natural and legal persons participating in civil legal relations must exercise their rights and perform their obligations in good faith, in accordance with the law, the contract, public order and good morals. Good faith is presumed until proven otherwise.
(2) The failure of natural and legal persons to exercise their civil rights does not result in their extinguishment, except in cases provided for by law.
Article 11. Good faith
(1) Good faith is a standard of conduct of a party, characterized by fairness, honesty, openness and taking into account the interests of the other party to the legal relationship.
(2) In particular, it is contrary to good faith for a party to act in contradiction to statements it has previously made or to its previous conduct where the other party, to its detriment, reasonably relied on those statements or conduct.
Article 12. Reasonableness
The reasonableness, provided for in a legal provision or in a juridical act, is assessed objectively, taking into account the nature and purpose of the element subject to assessment, the circumstances of the case, as well as the relevant customs and practices.
Article 13. Abuse of a right
(1) No subjective right may be exercised predominantly for the purpose of causing harm to another person or otherwise harming him (abuse of a right).
(2) In the case of abuse of a right, the court, taking into account its nature and consequences, refuses the holder the right to defend the subjective right exercised abusively or, as the case may be, obliges him to cease the abusive exercise.
(3) If the abuse of a right has led to the violation of the subjective right of another person, the latter may request compensation for the damage caused.
Article 14. Prohibition of invoking conduct
own illicit or bad faith
(1) No person may invoke, in support of his claim, the unlawful or bad faith act that he himself committed or participated in.
(2) No person may obtain an advantage from his unlawful or bad faith conduct.
Article 15. Judicial defense of civil rights
(1) The defense of violated civil rights shall be done through judicial means.
(2) The method of resolving the dispute between the parties before it is brought before a court of law may be provided for by law or contract.
(3) The defense of civil rights by administrative means shall be carried out only in cases provided for by law. The decision issued by administrative means may be appealed in court.
(4) References in this Code to a judge or a court are also references to other competent jurisdictional bodies under the law, and references to legal provisions on civil procedure are also references to the procedural rules of the respective competent jurisdictional bodies.
Article 16. Methods of protecting civil rights
(1) The defense of civil rights is carried out, under the law, through:
a) recognition of the right;
b) restoring the situation prior to the violation of the right and suppressing the actions that violate the right or create the danger of its violation;
c) ascertaining or, as the case may be, declaring the juridical act null and void;
d) declaring the act issued by a public authority null and void;
e) imposition of the obligation in kind;
f) self-defense;
g) compensation for patrimonial damage and, in cases provided for by law, for non-patrimonial damage;
h) collection of late payment interest or, as the case may be, the penalty;
i) termination or modification of the contract;
j) failure by the court to apply an act that contravenes the law issued by a public authority;
k) other means provided by law.
(2) The methods of defense provided for in paragraph (1) may be invoked if the conditions established by law and, where applicable, by the juridical act for their application are met.
Article 17. Declaration of nullity of the act that contravenes
law issued by a public authority
(1) The act, issued by a public authority, which violates the civil rights and interests protected by law of a natural or legal person shall be declared null and void by the court from the moment of its adoption.
(2) In cases where the court recognizes the act provided for in paragraph (1) as null and void, the violated right is subject to restoration or defense by other methods provided for by this Code and other laws.
Article 18. Self-defense
(1) The actions of a person who, for the purpose of self-defense, takes, steals, destroys or damages an property or, for the same purpose, detains the obligated person who could be hiding, or removes the resistance of the obligated person to tolerate the action are not unlawful if the assistance of the competent authorities cannot be obtained and if, without immediate intervention, there is a danger that the exercise of the right will become impossible or substantially hindered.
(2) Self-defense must not exceed the limits necessary to eliminate the danger.
(3) In the event of dispossession of property, their seizure must be requested immediately if forced performance is not obtained.
(4) If detained, the obligated person must be brought immediately before the competent authority.
(5) The person who committed one of the actions provided for in paragraph (1), mistakenly assuming that he has the right to self-defense, is obliged to repair the damage caused to the other party, even if the error is not due to his fault.
Article 19. Compensation for damage
(1) Under the law, the person harmed in a right or in an interest recognized by law may request full compensation for the patrimonial and non-patrimonial damage thus caused.
(2) The expenses that the injured person has incurred or will incur in restoring the right or interest recognized by law that has been violated, the destruction or damage to his property (real damage), as well as the lost profit as a result of the violation of the right or interest recognized by law (lost profit) are considered pecuniary damage.
(3) Non-pecuniary damage (moral damage) shall be considered to be physical and mental suffering, as well as the reduction in the quality of life. In the case of injury to health, non-pecuniary damage shall also include the loss or reduction of a capacity of the human body (biological damage).
(4) Loss of opportunity shall be compensated only if it consists in the actual and certain disappearance of a favorable eventuality. The amount of this damage corresponds to the lost opportunity and cannot be equal to the advantage that would have resulted from the opportunity if it had materialized.
(5) Reparation of damage involves restoring the injured person to the situation in which he or she would have been if the damage had not occurred.
(6) Instead of compensation for the pecuniary damage under paragraphs (2) and (5), the injured person may claim from the person liable for the damage the recovery of the entire profit that he obtained in connection with the causing of the damage. This rule shall apply only if the law or the contract provides for such a form of determination of the pecuniary damage or if the application of such a form of determination of the pecuniary damage is reasonable in the circumstances of the case.
Article 20. Guilt
(1) Unless otherwise provided by law, a person is liable only for the damage caused by his act committed with guilt in the form of intent or imprudence.
(2) The act is committed intentionally if the person who committed it was aware of the prejudicial nature of his action or inaction, foresaw its prejudicial consequences, desired them or consciously admitted the occurrence of these consequences.
(3) The act is committed out of imprudence (fault) if the person who committed it either realized the prejudicial nature of his action or inaction, foresaw its prejudicial consequences, but frivolously considered that they could be avoided, or did not realize the prejudicial nature of his action or inaction, did not foresee the possibility of its prejudicial consequences, although he should and could have foreseen them.
(4) The act is committed through serious negligence if the person committed it with a profound lack of prudence which, in the circumstances of the case, it was obvious that he should have shown.
(5) When the law conditions the legal effects of an act on its commission through negligence, the condition is fulfilled even if the act was committed intentionally.
Article 21. Defense of personal rights
patrimonial
Personal non-property rights and other non-material values are protected in the cases and in the manner provided for by this Code and other laws, to the extent that the use of methods of protecting civil rights arises from the essence of the violated right and the nature of the consequences of this violation.
Article 22. Notifications
(1) Notification is considered the communication of a juridical act or information for a legal purpose.
(2) Notification may be made by any means appropriate to the circumstances if the law or juridical act does not impose a specific formal requirement.
(3) The notification takes effect from the moment it reaches the recipient, unless it provides for a delayed effect.
(4) The notification shall be deemed to have reached the recipient:
a) when it is delivered to the recipient;
b) when it is delivered to the postal address indicated by the recipient for this purpose or, in the absence thereof, to the headquarters of the recipient who is a legal person or to the domicile of the recipient who is a natural person;
c) in the case of a notification sent by electronic mail or other means of individual communication, when it can be accessed by the recipient; or
d) when it is otherwise made available to the recipient in a place and manner that reasonably enables the recipient to access it without delay.
(5) The notification shall be deemed to have reached the addressee after one of the requirements set out in paragraph (4) has been met, whichever is met first.
(6) The notification shall not be effective if its revocation reaches the recipient before or at the same time as the notification.
(7) The notification sent by a representative or received by him shall be considered made or, as the case may be, received by the represented person if the representative was authorized to send or, as the case may be, to receive such notifications.
(8) Any clause contrary to the provisions of this article to the detriment of the consumer is null and void.
(9) The special legal provisions on judicial communications remain applicable.
Title II
THE PEOPLE
Chapter I
NATURAL PERSON
Section 1
General provisions
Article 23. The concept of natural person
A natural person is a human being, viewed individually, as the holder of civil rights and obligations.
Article 24. Capacity of use of the individual
(1) The capacity to have civil rights and obligations (capacity to use) is recognized equally to all natural persons.
(2) The capacity to use a natural person arises at the moment of birth and ceases upon death.
(3) The right to inheritance of a natural person arises at conception if he is born alive.
Article 25. Legal capacity of a natural person
Capacity to exercise is the ability of a person to acquire and exercise civil rights through his own actions, to personally assume civil obligations and to execute them.
Article 26. Full capacity to exercise
of the individual
(1) Full capacity to exercise legal capacity begins on the date when the natural person becomes of age, that is, upon reaching the age of 18.
(2) A minor acquires full legal capacity through marriage. The dissolution of the marriage does not affect the minor’s full legal capacity. In the event of a declaration of nullity of the marriage, the court may deprive the minor spouse of full legal capacity from the moment it determines.
(3) A minor who has reached the age of 16 may be recognized as having full legal capacity if he works under an employment contract or, with the consent of his parents or legal representative, is engaged in entrepreneurial activity. The attribution of full legal capacity to a minor (emancipation) shall be carried out by decision of the guardianship authority, with the consent of both parents or legal representative, and in the absence of such consent, by court decision.
Article 27. The capacity of a minor to exercise legal capacity
who has reached the age of 14
(1) A minor who has reached the age of 14 shall conclude juridical acts with the consent of the parent or legal representative, and in the cases provided for by law, also with the consent of the guardianship authority.
(2) A minor who has reached the age of 14 has the right, without the consent of the parent or legal representative:
a) have a salary, scholarship or other income resulting from their own activities;
b) to exercise copyright over a scientific, literary or artistic work, over an invention or other result of intellectual activity protected by law;
c) to make deposits in financial institutions and to dispose of these deposits in accordance with the law;
d) to conclude the juridical acts provided for in art. 28 paragraph (2).
(3) For valid reasons, the minor may be limited by the court, at the request of the parents, the legal representative or the guardianship authority, in the rights provided for in paragraph (2) letters a) and b).
(4) For good reasons and if the interests of the minor so require, the court shall institute a measure of judicial protection over the minor who has reached the age of 14 and shall appoint the temporary guardian, curator or, as the case may be, the guardian of the minor. The measure of judicial protection thus instituted may not exceed the date on which the minor reaches the age of majority. The legal provisions regarding the measures of protection of adult natural persons shall apply accordingly to the measure of judicial protection over the minor.
Article 28. The capacity of a minor to exercise legal capacity
who has not reached the age of 14
(1) All juridical acts for and on behalf of a minor until the age of 14 may be concluded only by the parent or legal representative, under the conditions provided by law.
(2) A minor aged 7 to 14 years has the right to independently conclude:
a) current juridical acts of small value that are executed at the time of their conclusion;
b) juridical acts for obtaining free benefits that do not require notarial authentication
or state registration of rights arising under them;
c) conservation acts.
Article 29. Restrictions on the conclusion of juridical acts
on behalf of the minor who does not have
full exercise capacity
(1) The juridical acts provided for in art. 139 para. (1), concluded in the name of a minor who does not have full legal capacity, shall produce legal effects only after authorization by the family council or, in its absence, by the guardianship authority. The provisions of art. 139 para. (2)-(5), art. 148-155, art. 163 and art. 164 shall apply accordingly.
(2) The juridical acts provided for in art. 140 may not be concluded on behalf of a minor who does not have full legal capacity, under penalty of absolute nullity.
Article 30. Regime of the financial resources of
the minor who lacks capacity
full of exercise
(1) Cash collection, payment and administration operations of funds carried out on behalf of a minor who does not have full legal capacity shall be carried out exclusively through the account opened in his/her name, unless the law provides otherwise for certain categories of payments.
(2) The family council or, in its absence, the guardianship authority may prescribe that a certain amount of money belonging to the minor who does not have full legal capacity be deposited in a special account of the minor, from which withdrawals will be made only with the authorization of the family council or, in its absence, of the guardianship authority. The provisions of this paragraph shall not apply in the case of forced performance on the minor’s financial means.
(3) The family council or, in its absence, the guardianship authority is obliged to take all necessary measures to inform the institution where the account is opened in the name of the minor who does not have full legal capacity about the special regime established according to paragraph (2).
Article 31. Inadmissibility of deprivation and limitation
the capacity to use and exercise
(1) Civil capacity is recognized equally to all persons, regardless of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth, social origin, level of culture or other similar criteria.
(2) A natural person may not be deprived of the capacity to use.
(3) No one may be limited in their capacity to use or exercise their rights except in the case and in the manner provided for by law.
(4) The total or partial renunciation of a natural person’s capacity to use or exercise, other juridical acts aimed at limiting the person’s capacity to use or exercise are null and void.
Article 32. Establishment of the measure of judicial protection
(1) Under the terms of this code, with regard to a natural person who, as a result of a mental illness or a physical, mental or psychological deficiency, cannot fully realize his actions or express his will, a judicial protection measure in the form of guardianship, provisional protection or guardianship may be established by court decision.
(2) In all situations, the person in respect of whom a judicial protection measure has been established is entitled to independently conclude the juridical acts provided for in art. 28 paragraph (2).
Article 33. Ineffectiveness of the juridical act to which it is
a minor or a person subject to
a judicial protection measure, concluded
without the necessary approval or authorization
(1) A juridical act to which a minor who has reached the age of 14 and who does not have full legal capacity or a person in respect of whom a measure of judicial protection is established is a party, concluded without the consent of the parent, curator, guardian or other guardian or without the authorization of the family council, guardianship authority or court, required by law or court decision, shall not produce legal effects until after the appropriate consent or, as the case may be, authorization. The necessary consent or authorization may be issued both before and after the conclusion of the respective juridical act.
(2) The person with full legal capacity is obliged to repair the damage caused to the other party if it is proven that he knew or should have known about the ground for ineffectiveness.
(3) After the minor or the person subject to a judicial protection measure has acquired full legal capacity, the juridical act concluded under the conditions of paragraph (1) produces legal effects only if it is confirmed by him/her.
Article 34. Entrepreneurial activity
and business of the individual
(1) A natural person has the right to practice entrepreneurial activity in his own name and on his own account from the moment of state registration as an individual entrepreneur or in another manner provided for by law.
(2) The natural person has the right to practice business activity in his own name and on his own account from the moment of meeting the conditions established by law for this.
(3) A person who practices entrepreneurial or business activity without meeting the conditions established by law for this cannot invoke the lack of business status.
(4) The rules governing the activity of legal persons for profit shall apply to entrepreneurial activity carried out without the establishment of a legal person, unless otherwise provided by law or the essence of the legal relations.
Article 35. Patrimonial liability of
individual
The natural person is liable for his obligations with all his property, except for property that, according to the law, cannot be traced.
Article 36. Name of the individual
(1) Any natural person has the right to the name established or acquired according to the law.
(2) The name includes the family name and the first name, and in the case provided for by law, also the patronymic.
(3) The family name is acquired through filiation and is modified through a change in marital status, under the conditions provided by law.
(4) The first name is established on the date of birth registration, based on the birth certificate.
Article 37. Use of the name
(1) Everyone has the right to respect for his or her name.
(2) The natural person acquires and exercises rights and performs obligations in his own name.
(3) A person who uses the name of another person shall be liable for any confusion or damage resulting therefrom. Both the holder of the name and his spouse or close relatives may object to such use and claim compensation for the damage.
(4) The natural person is obliged to take measures to notify his debtors and creditors about the change of name and is liable for damages caused by failure to comply with this obligation.
Article 38. Domicile and temporary residence
(1) The domicile of a natural person is the place where he or she has his or her usual residence. The person is considered to retain his or her domicile as long as he or she has not established another one.
(2) Habitual residence demonstrates a close and stable connection of the natural person with the place concerned. In determining habitual residence, all relevant factual elements shall be taken into account, in particular the duration and regularity of the person’s presence in the place concerned, as well as the conditions and reasons for that presence.
(3) The temporary residence of a natural person is the place where he has his temporary or secondary home.
(4) The establishment or change of domicile shall only operate when the person occupying or moving to a particular place has done so with the intention of having his habitual residence there. Proof of intention shall result from the declarations of the person made to the authorities competent to operate the establishment or change of domicile, and in the absence of such declarations, from any other factual circumstances.
(5) A person whose domicile cannot be established with certainty shall be deemed to be domiciled at the place of his temporary residence.
(6) In the absence of a temporary residence, the person is considered to reside at the place of last residence, and if this is not known, at the place where that person is found.
Article 39. Proof of domicile or residence
temporary
(1) Until proven otherwise, the domicile or temporary residence of the natural person is presumed to be at the place mentioned as such in the identity card or, as the case may be, in another identity document provided for by law.
(2) In the absence of these mentions or when they do not correspond to reality, the establishment or change of domicile or temporary residence cannot be opposed to other persons.
(3) The provisions of paragraph (2) shall not apply if the domicile or temporary residence was known by other means by the person against whom it is opposed.
Article 40. Domicile of the minor and the person
incapable of exercise
(1) The domicile of a minor under the age of 14 is with his parents or with the parent with whom he permanently resides.
(2) The domicile of the minor placed in foster care by the court to a third party remains with his parents. In case they have separate domiciles and they do not agree on which of them the minor will have domicile, the court shall decide on this.
(3) The court may, exceptionally, taking into account the minor’s best interests, establish his/her domicile with the grandparents or other relatives or trusted persons, with their consent, or with a protective institution.
(4) The minor’s domicile, if only one of the parents represents him or if he is under guardianship, is with the legal representative.
(5) The domicile of the minor in difficulty, in the cases provided for by law, is with the family or with the persons to whom he/she has been placed in foster care or entrusted.
Article 41. Business headquarters
The natural person who practices an entrepreneurial or business activity has his domicile, in all matters concerning that activity, also at the headquarters of the form of exercise of the activity.
Article 42. Chosen domicile
(1) A party to a juridical act may choose a domicile for the purpose of exercising the rights or performing the obligations arising from that act.
(2) The choice of domicile is not presumed, but must be made in writing under penalty of nullity.
Section 2
Respect due to the human being
and its inherent rights
Article 43. Personality rights
(1) Under the law, any natural person has the right to life, health, physical and mental integrity, free expression, name, honor, dignity and business reputation, his or her own image, respect for intimate, family and private life, protection of personal data, respect for his or her memory and body after death, as well as other such rights recognized by law.
(2) These rights are inalienable and inalienable.
Article 44. Prohibition of certain patrimonial acts
Any juridical acts that have as their object the conferring of patrimonial value on the human body, its elements or products are subject to absolute nullity, except in cases expressly provided for by law.
Article 45. The right to one’s own image
(1) Unless otherwise provided by law, in exercising the right to one’s own image, a person may prohibit or prevent the reproduction, in any way, of his physical appearance or voice or, as the case may be, the use of such reproduction. The provisions of art. 47 remain applicable.
(2) If a person consents to their image being captured in circumstances from which it is clear that the image will be disseminated, it is presumed that they also consent to its reproduction and dissemination in the usual way, as could reasonably be expected in those circumstances.
Article 46. Intrusions into private life
Subject to the application of the provisions of Article 47, the following may be considered as invasions of privacy:
a) entering or remaining without right in the dwelling or taking any object from it without the consent of the person who legally occupies it;
b) the unauthorized interception of a private conversation, committed by any technical means, or the knowing use of such interception;
c) capturing or using the image or voice of a person in a private space, without their consent;
d) the dissemination of images showing the interiors of a private space, without the consent of the person legally occupying it;
e) keeping private life under observation, by any means, except in cases expressly provided for by law;
f) broadcasting news, debates, investigations or written or audiovisual reports regarding intimate, personal or family life, without the consent of the person concerned;
g) dissemination of materials containing images of a person undergoing treatment in healthcare facilities, as well as personal data regarding health status, diagnostic issues, prognosis, treatment, circumstances related to the disease and various other facts, including the autopsy result, without the consent of the person concerned, and in the event that the person is deceased, without the consent of the family or entitled persons;
h) the use, in bad faith, of the name, image, voice or likeness of another person;
i) dissemination or use of correspondence, manuscripts or other personal documents, including data regarding the domicile, temporary residence, as well as telephone numbers of a person or his family members, without the consent of the person to whom they belong or who, as the case may be, has the right to dispose of them.
Article 47. Limits of the right to private life
(1) Encroachments that are permitted by law or by international human rights treaties to which the Republic of Moldova is a party do not constitute a violation of the right to privacy.
(2) The exercise of constitutional rights and freedoms in good faith and in compliance with international treaties to which the Republic of Moldova is a party does not constitute a violation of the right to privacy.
Article 48. Presumption of consent
(1) When the person to whom information or material refers makes it available to a natural person or legal person that he or she is aware of carrying out activity in the field of public information, consent for its use is presumed, and it is not necessary to express it in written form.
(2) A person who has consented to the use of personal documents, images or audio or video recordings of a person or personal opinions may withdraw the consent, even if it was granted for a specific period.
(3) If consent granted for a specified period is withdrawn without justification based on substantial changes in circumstances or any other valid reason, the person withdrawing the consent must compensate the damage caused to the person to whom the consent was granted.
(4) Consent is not required if the image, personal document, audio or video recording of a person is made or used to exercise or protect other rights or interests protected by law.
(5) Consent is also not required if an image, personal document or audio or video recording of a person is made or used under the law for official purposes or if someone performs a public act in the public interest.
(6) The consent of the data subject is not required for the recording of the image or voice and for the use of this recording when it is made in a crowd or during a public event.
(7) The law may provide for other cases in which the person’s consent is presumed or is not necessary for the use of personal documents, images or audio or video recordings concerning a person or personal opinions.
Article 49. Respect due to the deceased person
(1) The deceased person is due respect with regard to his memory as well as his body.
(2) Any person may determine the manner of his own funeral and may dispose of his body after death.
(3) In the absence of the express option of the deceased person, the will of the spouse, parents, descendants, collateral relatives up to the fourth degree inclusive, heirs or the disposition of the mayor of the village (commune), city or municipality in whose territorial radius the death occurred shall be respected, in order. In all cases, the confessional affiliation or the fact that he/she had no confessional affiliation shall be taken into account.
Section 3
Guardianship and guardianship of minors
Article 50. Grounds for establishing guardianship and trusteeship
on minors
(1) The provisions of this section shall apply to guardianship and trusteeship established over minors in one of the situations provided for in paragraph (2), except in the case where they have acquired full legal capacity.
(2) Guardianship or curatorship over a minor is established if he or she has been assigned the status of a child temporarily left without parental care or the status of a child left without parental care.
Article 51. Guardianship of a minor
(1) Guardianship is established over minors up to 14 years of age.
(2) The guardian is the legal representative of the person under guardianship and concludes the necessary juridical acts in his/her name and interest without a mandate.
(3) The provisions of Article 115 shall apply accordingly.
Article 52. Guardianship of a minor
(1) Guardianship is established over minors aged between 14 and 18 years.
(2) The curator gives his/her consent to the conclusion of juridical acts that the natural person under curatorship does not have the right to conclude independently.
(3) The curator assists the person under curatorship in exercising his rights and fulfilling his obligations and protects him against abuse by third parties.
(4) The provisions of Article 108 shall apply accordingly.
Article 53. Establishment of guardianship and trusteeship over
minor
(1) Guardianship and curatorship over a minor shall be established by order of the territorial guardianship authority at his/her domicile, in accordance with the provisions of Law no. 140/2013 on the special protection of children at risk and of children separated from their parents.
(2) The territorial guardianship authority is obliged to order the establishment of guardianship or curatorship over the minor within 5 working days from the date of receipt of the positive opinion of the Commission for the Protection of Children in Difficulty regarding the planned placement of the minor.
(3) When appointing the guardian and curator, the opinion of the minor shall be taken into account, in accordance with his or her age and degree of maturity.
(4) Until the appointment of a guardian or curator, the legal representative of the minor is the territorial guardianship authority.
Article 54. Obligation to provide information about minors
over whom guardianship must be established
or guardianship
Within 5 days from the date of learning that guardianship or curatorship must be established over the minor, they are obliged to notify the guardianship authority:
a) those close to the minor, as well as the administrator and tenants of the house in which he or she lives;
b) the civil status authority, in the case of registering a death, as well as the notary public, in the case of opening a succession;
c) the court, the prosecutor’s office and the police, in the event of the pronouncement, application or performance of a custodial sentence;
d) local public administration authorities, protection institutions, as well as any other person.
Article 55. The guardian and curator of the minor
(1) A single natural person or a husband and wife together may be the guardian or curator of a minor if they are not in any of the cases of incompatibility provided for in paragraph (4) and if they have expressly consented. The provisions of art. 107 and 109 shall apply accordingly.
(3) Except for the case provided for in art. 56 paragraph (7), the guardian and curator of the minor are appointed by the guardianship authority at the domicile or temporary residence of the person over whom guardianship or curatorship is to be established, ex officio or upon notification by the persons provided for in art. 54.
(4) The following cannot be a guardian or curator:
a) the minor;
b) the person subject to a judicial protection measure;
c) the one who has lost parental rights;
d) the person declared incapable of being a guardian or curator due to health conditions;
f) those whose exercise of political or civil rights has been restricted, either by law or by court decision, as well as those with bad behavior;
g) the one whose interests conflict with the interests of the minor placed under guardianship or trusteeship;
h) the one removed by authentic act or will by the parent who alone exercised parental protection at the time of death;
i) the person whose status as guardian, curator or provisional protector has been revoked through his/her own fault;
j) the person who is in employment relations with the institution where the person over whom guardianship or curatorship is established is hospitalized;
k) someone who suffers from chronic alcoholism or drug addiction;
l) the person who does not have a domicile on the territory of the Republic of Moldova, with the exception of the minor’s relative up to the 4th degree inclusive;
m) the person who is not related to the minor up to the fourth degree inclusive or has not established close relationships with him/her.
(5) If there are several persons who express their desire to be appointed guardian or curator, the territorial guardianship authority shall decide on this matter. The decision of the territorial guardianship authority may be challenged in court.
(6) In the case indicated in paragraph (5), the territorial guardianship authority takes into account the moral and material capacities to raise, care for and educate the child, his/her relationship with the respective person, as well as the habitual place of residence of the minor.
Article 56. Family council of the minor
(1) When establishing guardianship or curatorship over a minor, the territorial guardianship authority may also establish the minor’s family council, at the request of the interested persons, in case of litigation or if the value of the patrimony justifies this, if the composition of the family allows the establishment of the respective council.
(2) The members of the family council are appointed by the guardianship authority for the duration of the guardianship or curatorship.
(3) The minor’s family council shall be composed of at least 3 members with voting rights. The guardian or, as the case may be, the curator shall be an ex officio member of the council, without voting rights.
(4) The minor’s relatives may be members of the family council, and in their absence, other persons who show interest in him or her and in his or her well-being.
(5) The guardianship authority shall make efforts to ensure that both collateral lines of kinship are represented in the family council.
(6) The guardianship authority shall appoint the members of the family council based on the wishes and feelings expressed by the minor, in accordance with his/her age and degree of maturity, on his/her usual relationships, on the interest shown by the candidates and any recommendations from relatives.
(7) The family council appoints and revokes the minor’s guardian and curator.
Article 57. Substitute guardian and substitute curator.
The special guardian and the special curator
(1) Under the conditions provided for in art. 112, the minor’s family council or, in his absence, the guardianship authority may appoint a substitute guardian or, as the case may be, a substitute curator for the minor.
(2) Under the conditions provided for in art. 113, the minor’s family council or, in his absence, the guardianship authority may appoint a special guardian or, as the case may be, a special curator for the minor.
(3) The provisions of art. 55 paragraph (4) shall apply to the substitute guardian, the special guardian or, as the case may be, the substitute curator, the special curator.
Article 58. Personal and free character
of guardianship and trusteeship
(1) Guardianship and curatorship are personal tasks.
(2) Guardianship and curatorship obligations shall be fulfilled free of charge. The guardian and curator have the right to request compensation for all expenses related to the fulfillment of guardianship and curatorship obligations.
(3) The guardianship authority may, taking into account the amount and composition of the patrimony of the person placed under guardianship or curatorship, decide that the administration of the patrimony or only part of it be entrusted to a competent natural person or legal person.
(4) The rights and obligations of a guardian and curator are exercised exclusively in the interest of the minor under guardianship or curatorship.
Article 59. Obligations of the guardian of the minor
and of the minor’s guardian
(1) The guardian and curator are obliged:
a) to live together with the person placed under guardianship and to notify the guardianship authority of the change of address. The guardian and the minor placed under guardianship who has reached the age of 14 may live separately only with the consent of the guardianship authority;
b) to take care of the maintenance of the minor placed under guardianship or trusteeship;
c) to protect the rights and interests of the minor placed under guardianship or trusteeship.
(2) The guardian and curator shall have the rights and obligations of a parent in the education of the minor.
(3) The guardian and the curator are not entitled to prevent the minor from being taken out of their care at the request of the territorial guardianship authority, if the minor is to be (re)integrated into the biological family or the extended family or if a more appropriate form of protection is to be established, in accordance with the best interests of the child.
Article 60. Administration of the minor’s property
placed under guardianship
(1) The guardian shall administer and dispose effectively of the property of the person placed under guardianship, on his behalf, unless an administrator of the property is appointed.
(2) The provisions of Articles 131-145 shall apply accordingly to the guardianship of the minor.
(3) The amounts due to the person placed under guardianship, in the form of pension, aid, alimony and other current income, shall be received and spent by the guardian for the maintenance of the person placed under guardianship.
Article 61. Fiduciary administration of property
to the one placed under guardianship
(1) In the event of the need for permanent administration of the immovable and movable property of the person placed under guardianship, the family council or, in its absence, the guardianship authority shall conclude a contract for fiduciary administration of the property with the administrator it has appointed. In such cases, the guardian shall retain his powers over the part of the property of the person placed under guardianship that is not transferred into fiduciary administration.
(2) In exercising the duties of administering the property of the person placed under guardianship, the administrator falls under the incidence of Articles 131-145.
(3) The fiduciary administration of the property of the person placed under guardianship shall cease on the grounds provided by law for the termination of the fiduciary administration contract of the property, as well as in the event of the termination of guardianship.
Article 62. Revocation of the status of guardian and curator.
Revocation of guardianship and trusteeship
(1) The minor, as well as the persons indicated in art. 54, may contest or denounce to the guardianship authority the acts and deeds of the guardian, the substitute guardian and the special guardian, as well as those of the curator, the substitute curator and the special curator, which prejudice the interests of the minor.
(2) Guardians, substitute guardians and special guardians, as well as curators, substitute guardians and special curators, shall have their respective capacity revoked if they have committed abuse, serious negligence or other acts that make them unworthy of being guardians or curators, as well as if they have not properly fulfilled their obligations.
(3) The guardianship authority revokes the guardianship or curatorship of the minor if the minor has been reintegrated into the family, adopted or placed in another placement service.
(4) In the event of the placement of a minor placed under guardianship or trusteeship in a public social assistance, education, training, treatment institution or in another similar institution, the guardianship authority shall revoke the guardian or trustee if this does not conflict with the interests of the person placed under guardianship or trusteeship.
(5) The family council or, in its absence, the guardianship authority shall revoke the guardian, the substitute guardian and the special guardian, as well as the curator, the substitute curator and the special curator, at their request, if there are justified reasons.
Article 63. Termination of guardianship and trusteeship
(1) Upon reaching the age of 14 by the minor placed under guardianship, the guardianship over him/her ceases, and the person who had the capacity of guardian, substitute guardian or special guardian becomes, respectively, curator, substitute curator or special curator, without the need for an additional decision in this regard.
(2) The guardianship shall cease upon the acquisition or restoration of full legal capacity.
Article 64. Publicity of guardianship and trusteeship of a minor
(1) The establishment, revocation and modification of guardianship and trusteeship (including the appointment of another guardian, substitute guardian or special guardian or, as the case may be, of another curator, substitute curator or special curator) shall become enforceable against third parties only after the registration of these data in the manner provided by the Government. The respective data shall be enforceable against third parties who have become aware of them in another manner.
(2) Within 3 days from the date of the decision to establish, modify or revoke guardianship or trusteeship, the guardianship authority is obliged to send a copy thereof to the competent authority for the purpose of carrying out the respective registration.
(3) The provisions of paragraph (1) shall apply accordingly to the decision of the minor’s family council appointing or revoking the guardian, substitute guardian or special guardian, as well as, as the case may be, the curator, substitute curator or special curator. The guardianship authority shall send a copy of the respective decision to the competent authority for the purpose of registration, except in the case of its contestation in court.
(4) The guardian, substitute guardian and special guardian, as well as the curator, substitute curator and special curator are entitled to obtain extracts regarding the guardianship or, as the case may be, the guardianship they exercise, as well as regarding the minor. In other cases, extracts regarding the guardianship or guardianship of the minor are issued if the applicant has a legitimate interest, in the manner established by regulation approved by the Government.
Section 4
Contractual and judicial protection measures
Subsection 1
Common provisions
Article 65. Grounds, forms and principles of protection
(1) A natural person who has reached the age of majority or who has acquired full legal capacity in another legal way and who, as a result of a mental illness or a physical, mental or psychological deficiency, cannot fully be aware of his actions or express his will may benefit from a protective measure, established depending on his condition or situation.
(2) Unless otherwise provided, the protection measure aims to protect both the person and his or her patrimonial interests. The protection measure may be limited to one of these two areas.
(3) Protection measures can be contractual (assistance contract, future protection mandate) and judicial (provisional protection, guardianship, tutelage).
(4) All protection measures shall be established and exercised in accordance with the fundamental rights and freedoms and dignity of the person. Protection measures shall pursue the interests and well-being of the person in respect of whom they are established and shall promote, as far as possible, his or her autonomy.
(5) Sexual life constitutes a component of private life and individual freedom, and any restriction thereof must be legitimate, appropriate and proportionate to the purpose pursued.
(6) When making any decision concerning the person in respect of whom a protection measure is established (the protected person) or his/her patrimonial interests, the court, the guardianship authority and the person entrusted with the protection (the assistant, the representative empowered by a protection mandate in the future, the provisional guardian, the curator, the tutor, the members of the family council) shall give priority to the wishes and feelings of the protected person, expressed independently or, at his/her request, with the help of the person of trust. The wishes and feelings of the protected person shall have priority, even if they are likely to expose the protected person to a certain risk, except in the case where he/she exposes himself/herself to a serious risk that cannot be diminished by taking certain additional measures.
(7) The trusted person is any person freely chosen by the protected person to be assisted in communication. In the absence of a choice, the trusted person, requested by the protected person, will be designated by the community mental health center.
Article 66. General jurisdiction of the court
of the court and the guardianship authority
(1) The court and the guardianship authority exercise general supervision of protection measures, according to the competence provided by law.
(2) The court and the guardianship authority may visit or request visits to be made to protected persons and those in respect of whom a request for the establishment of a protection measure has been submitted.
(3) The persons entrusted with protection are obliged to appear whenever summoned and to communicate any information related to the exercise of protection of the person.
(4) The guardianship authority may, upon request or ex officio, issue binding prescriptions to the persons entrusted with protection.
(5) Upon the motivated request of any interested person, after hearing or summoning him, the court may revoke the status of the person entrusted with protection in case of failure to fulfill his obligations, as well as on other grounds provided for by law.
Article 67. Authorized guardian
(1) The person holding the authorized guardian authorization, issued in accordance with legal provisions, may carry out the activity of an authorized guardian.
(2) The authorization of an authorized guardian may be requested by a natural person with full capacity to exercise, by a treatment institution or social institution, as well as by a public association which, according to its statute, has as its main activity the defense of the rights and interests of persons with mental illnesses or physical, mental or psychological deficiencies.
(3) The authority empowered to authorize, the conditions and the manner of authorization and carrying out the activity of an authorized guardian are established by regulation approved by the Government.
Article 68. General obligations of the person
charged with protecting
(1) The person entrusted with protection shall, as far as possible, inform and consult the protected person regularly on all aspects related to the protection measure, and shall provide support or consultation at the request of the protected person or as required by the circumstances. If the person entrusted with protection acts on behalf of the protected person, he or she shall be bound by the opinion of the person represented, to the extent that the protected person is able to express such an opinion.
(2) The person entrusted with the protection is obliged to evaluate and take into account, as far as possible, the past and present wishes and feelings of the protected person.
(3) The person entrusted with protection is obliged to keep separate records of the property and activities of the protected person and to keep useful evidence in order to demonstrate the proper exercise of the protection measure.
(4) The person entrusted with protection is obliged to maintain the confidentiality of information concerning the protected person, including personal data, or relating to his or her property, except in the case where the disclosure of such information is necessary in the process of exercising the protection measure or for the supervision of its exercise by the competent authority or the court, as well as in other cases provided for by law.
Article 69. Compliance with instructions
for the purpose of protection
(1) The instructions of a natural person with full legal capacity regarding the protection of his or her property or person in the event that, as a result of a mental illness or a physical, mental or psychological deficiency, he or she will not be able to fully realize his or her actions or express his or her will (instructions for protection) must be respected by the persons responsible for protection, by the guardianship authority and by the court, except in the case where the person is exposed to a serious risk that cannot be mitigated by taking certain additional measures.
(2) Instructions for protection, by which one or more persons are designated to act as temporary guardian, curator, tutor or other person entrusted with protection, must be respected, except in the case where the designated person refuses this capacity, is unable to exercise it or if the person who issued the instructions exposes himself to a serious risk that cannot be mitigated by taking certain additional measures.
(3) Instructions for protection shall be drawn up, amended and revoked in writing, under penalty of absolute nullity, personally by the person issuing the instructions.
(4) The provisions of paragraph (1) shall apply accordingly in the event that the parents or the surviving parent, not being subject to a judicial protection measure in the form of guardianship or trusteeship and exercising parental protection over the minor child or assuming the material and moral care of the adult child, designate one or more persons who will act as, as the case may be, temporary guardian, curator or tutor of the child in the event that they die or, as a result of a mental illness or physical, mental or psychological deficiency, will not be able to fully realize their actions or express their will.
(5) At the request of the person who has drawn up the instructions for protection, they may be registered in the manner prescribed by the Government. In the event of modification or revocation of the instructions that have been registered, the person shall request the registration of the modification or, as the case may be, the deletion of the registration.
(6) Failure to make the registration provided for in paragraph (5) shall not affect the validity of the instructions, their modification or, as the case may be, their revocation.
(7) Any person may invoke the existence of instructions for protection. The court or, as the case may be, the guardianship authority shall examine ex officio the records provided for in paragraph (5).
(8) If the circumstances on which the instructions were based change substantially, so that it can be assumed that the person would no longer draw up those instructions or would have drawn them up differently, the court, ex officio or at the request of an interested person, may amend or annul the instructions in question if compliance with them would expose the person to a serious risk that cannot be mitigated by taking certain additional measures. Before deciding on the amendment or annulment of the instructions, the court shall hear the person who drew up the instructions and shall ascertain his wishes regarding the instructions.
(9) If the instructions have been modified or revoked or if their modification or revocation has been annulled, the court or, as the case may be, the guardianship authority shall take them into account, unless there are doubts that they reflect the wishes and feelings of the person.
Article 70. Regime of the protected person’s residence
(1) The rights of the protected person over the dwelling, regardless of whether it constitutes a domicile or a temporary residence, and over the movable property with which it is equipped, are kept at the disposal of the protected person for as long as necessary.
(2) The right to administer the goods referred to in paragraph (1) only allows the conclusion of contracts for the temporary use of the goods, which may be terminated upon the return of the protected person to his/her home. Any clause to the detriment of the protected person is null and void.
(3) If it becomes necessary or is in the interest of the protected person to dispose of the rights he has over his home or over the movable property with which he is endowed by concluding a juridical act of disposition, resolution or transmission for use to third parties, the juridical act must be authorized by the family council or, in its absence, by the guardianship authority.
(4) If the juridical act provided for in paragraph (3) aims at establishing the protected person in a treatment institution or social institution, the prior opinion of a doctor who does not exercise any function in that institution is required. In all cases, the property specified in art. 89 paragraph (1) letters a)-h) of the Enforcement Code must be kept at the disposal of the protected person, as the case may be, in the care of the institution in which he is established.
(5) The provisions of paragraphs (1)-(3) shall not apply in the case of forced partition or forced pursuit.
Article 71. Regime of protected person accounts
(1) The person in charge of protection may not modify the accounts opened in the name of the protected person nor may he open accounts at another financial institution.
(2) By way of derogation from paragraph (1), the family council or, in its absence, the guardianship authority may authorize the modification or opening of the account if this is in the interest of the protected person.
(3) If the protected person does not have an account, the person in charge of protection shall open an account in the name of the protected person.
(4) Cash collection, payment and administration operations carried out on behalf of the protected person shall be carried out exclusively through the account opened in his/her name, unless the law provides otherwise for certain categories of payments.
(5) The fruits and products generated by the money and values belonging to the protected person belong exclusively to him.
Article 72. Remuneration of the pregnant person
with the protection
(1) Persons other than the authorized protector shall exercise judicial protection measures free of charge.
(2) By way of derogation from paragraph (1), the family council or, in its absence, the guardianship authority may authorize, taking into account the property administered or the difficulty of exercising the protection measure, the payment of a remuneration for the benefit of the person entrusted with the protection, fixing its amount. The remuneration shall be paid from the account of the protected person.
(3) If the judicial protection measure is exercised by an authorized protector, the financing is made entirely from the account of the protected person.
(4) If the financing of the protection measure exercised by an authorized protector cannot be fully ensured by the protected person, it will be ensured by the state, within the limits and under the conditions of the law.
(5) By way of exception, the family council or, in its absence, the guardianship authority may authorize the allocation of remuneration to the authorized guardian for the performance of an act or a series of acts, required by the protection measure and which involve efforts over a long period or are of high complexity, remuneration which would supplement the amounts charged according to paragraphs (2) and (3) if these prove to be insufficient. This remuneration shall be paid from the account of the protected person.
(6) The future protection mandate and the assistance contract are free of charge, unless otherwise stipulated.
Article 73. Liability of the pregnant person
with the protection
(1) The person entrusted with protection shall be liable for the damage caused during the exercise of the protection measure.
(2) The person entrusted with protection is liable for approving the conclusion of a juridical act by the protected person only if he or she acted with intent or gross negligence.
(3) The agent empowered by a protection mandate shall in the future be liable according to the legal provisions regarding the mandate.
Subsection 2
Decision-making assistance
Article 74. Assistance in decision-making
(1) If a person needs protection only through assistance in making decisions, he or she may conclude an assistance contract with the person who wishes to provide it (the assistant). The person may have one or more assistants.
(2) Through the assistance contract, the assistant undertakes to be present at the conclusion of juridical acts and the taking of other decisions by the protected person, to provide him with the necessary information and consultation and to assist him in communicating with third parties, regardless of the form of communication.
(3) If the protected person concludes a juridical act in written or authentic form, the assistant may countersign, indicating the quality and nature of the assistance provided.
(4) The legal provisions regarding the mandate shall apply accordingly to the assistance contract, but the capacity of assistant does not grant the power to represent the protected person.
(5) The assistant is obliged to notify the guardianship authority about the initiation and, as the case may be, the termination of the assistance.
Article 75. Termination of assistance in decision-making
(1) Any party to the assistance contract may declare the termination without cause.
(2) In the event of the establishment of a judicial protection measure, the court shall pronounce the termination of the assistance contract.
Subsection 3
The mandate for future protection
§ 1. Common provisions
Article 76. Future protection mandate
(1) A natural person who has reached the age of majority or who has acquired full legal capacity in another legal way (the principal) may authorize one or more agents to represent him/her in the event that, as a result of mental illness or physical, mental or psychological deficiencies, he/she will not be able to fully realize his/her actions or express his/her will.
(2) If the principal has authorized several agents, he may decide that they act together, simultaneously, separately or only to replace another agent.
(3) The person in respect of whom the judicial protection measure in the form of guardianship has been established may conclude a protection mandate in the future with the consent of the guardian.
(4) The person in respect of whom the measure of judicial protection in the form of guardianship has been established may not conclude a protection mandate in the future either personally or through a representative.
(5) The legal provisions on the mandate and the legal provisions on representation shall apply to the future protection mandate to the extent that they are not incompatible with the provisions of this section. The provisions of art. 374 paragraph (2), art. 375, art. 376 paragraph (1) and art. 377 shall not apply to the future protection mandate.
(6) To the extent that the trustee has powers to administer the principal’s property, the legal provisions regarding the fiduciary administration contract shall apply.
Article 77. Mandate for the future protection of the child
(1) The parents or the surviving parent, who have not been subject to a judicial protection measure in the form of guardianship or curatorship and who exercise parental protection over the minor child or have assumed the material and moral care of the adult child, may empower one or more representatives to represent this child in the situation where, as a result of a mental illness or physical, mental or psychological deficiency, the child will not be able to fully realize his actions or express his will.
(2) The mandate for the future protection of the child takes effect if the parents are either deceased or, as a result of a mental illness or physical, mental or psychological deficiency, cannot fully realize their actions or express their will.
(3) The legal provisions regarding the future protection mandate shall apply accordingly to the future protection mandate of the child.
Article 78. Form of the future protection mandate
(1) The mandate for future protection may be contained in a mandate contract, a power of attorney or another juridical act.
(2) The juridical act granting the mandate for future protection shall be concluded in writing, under penalty of absolute nullity, or in authentic form. The principal may not conclude the respective juridical act through a representative.
(3) The juridical act granting the mandate for the future protection of the child shall be concluded in authentic form.
Article 79. Powers of the representative
(1) If the future protection mandate is also granted for the protection of the person of the principal, the mandate holder has the rights and obligations of the guardian, and the principal has the rights and obligations of the person subject to the judicial protection measure in the form of guardianship, provided for in art. 115-119. Any clause that derogates from the respective provisions to the detriment of the principal is null and void.
(2) The future protection mandate may provide for:
a) the right of the agent to accompany the principal wherever necessary and to assist him in making decisions regarding his health;
b) empowering the agent to consent, on behalf of the principal, to the performance of medical investigations and interventions;
c) instructions for protection.
(3) The future protection mandate may provide for the means of control over its exercise.
Article 80. The agent
(1) Any natural person chosen by the principal, as well as any legal person holding the capacity of authorized protector, may be appointed as a trustee.
(2) The natural person trustee, during the performance of the protection mandate in the future, must have full capacity to exercise, and must meet the legal conditions that the guardian must meet.
(3) Unless otherwise stipulated, the protection mandate shall in the future be considered granted for an indefinite period.
(4) During the performance of the protection mandate in the future, the trustee may be revoked only by court decision, according to art. 83.
Article 81. Legal effects of the mandate
for future protection
(1) In order for the future protection mandate to take effect, the trustee shall submit it to the guardianship authority together with the report of the extrajudicial psychiatric examination carried out for the purpose of establishing a protection measure, issued within the last 2 months. The guardianship authority shall countersign, stamp and date the countersignature on the original of the mandate, after which it shall return it to the trustee. The date of countersignature by the guardianship authority shall be considered the date on which the future protection mandate began to take effect.
(2) The agent is obliged to inform the principal that the future protection mandate has begun to take effect.
(3) The fact that the future protection mandate has begun to produce effects does not affect the capacity of the principal to exercise it.
(4) The provisions regarding the future protection mandate shall also apply if a mandate is formulated in such a way that it takes effect before the date indicated in paragraph (1) and it is expressly provided that it will continue to produce legal effects even if the principal, as a result of mental illness or physical, mental or psychological deficiencies, will not be able to fully realize his actions or express his will.
Article 82. Transmission of the performance of the mandate
to a third party
(1) The agent exercises his/her personal mandate. He/she may grant special powers of attorney to one or more third parties for certain juridical acts.
(2) The agent is liable for the acts of the third party under the conditions of art. 1481 para. (3)-(5).
Article 83. Termination and suspension of mandate
of protection in the future that has begun to
produce effects
(1) The future protection mandate that has begun to take effect shall cease in the event of:
a) the death of the protected person or the establishment of a judicial protection measure regarding him, unless the court decision provides otherwise;
b) the death of the natural person trustee or the establishment of a judicial protection measure in respect of him/her;
c) the initiation of insolvency proceedings against the legal person’s representative or its liquidation;
d) the loss by the trustee of the status of authorized guardian;
e) revocation of the protection mandate in the future by court decision.
(2) At the request of any interested person, the court may decide to revoke the protection mandate in the future in cases where:
a) the protected person can become aware of his/her actions or express his/her will, so that it is no longer necessary to maintain the protection measure;
b) the legal provisions regarding representation between spouses and regarding the regime of spouses’ property are sufficient to protect the interests of the principal;
c) the trustee exercises the protection mandate in the future in a manner that harms the interests or well-being of the principal. In this case, the court may revoke the trustee’s powers in whole or in part.
(3) The court may suspend the effects of the protection mandate in the future during the establishment of provisional protection.
(4) In the case provided for in paragraph (2) letter c), the court shall institute a judicial protection measure on the basis and in the manner established by law.
(5) The court decision suspending or revoking the future protection mandate shall be communicated to the principal and the agent, as well as to the guardianship authority. If the future protection mandate has been registered in the manner provided for in art. 69 para. (5), the decision on suspension or revocation shall be sent in order to make the necessary registration or deletion.
Article 84. Intervention of the court
in the exercise of the mandate
for future protection
(1) Any interested person may request the court to annul the countersignature of the future protection mandate, made in accordance with art. 81 paragraph (1), if the legal conditions have not been met, as well as to interpret its content or determine the conditions and manner of performance of the future protection mandate.
(2) Before examining the request for the cancellation of the protection mandate in the future, the court shall hear the trustee and, if necessary, the principal, and shall give preference to the wishes and overriding interest of the principal and his well-being.
Article 85. Granting additional powers
by the court
(1) If, due to the limits of the powers granted, the protection mandate in the future does not allow for sufficient protection of the personal or patrimonial interests of the protected person, at the request of the mandatary the court may, by court decision, grant him the necessary additional powers. If a conflict of interests between the mandator and the mandatary is found, on the basis of the respective request the court may, by court decision, empower a special mandatary to perform juridical acts that exceed the limits of the existing mandate.
(2) The representative empowered by the future protection mandate and the special representative empowered by the court are independent and are not responsible to each other, being obliged to inform each other about the decisions taken.
Article 86. The trustee’s obligation regarding
inventory of the principal’s property
and preparing the report
The agent who has powers to administer the principal’s property shall have the obligations provided for in Articles 137 and 141-145.
§ 2. Authentic mandate
Article 87. Preparation, amendment and revocation
authentic mandate
(1) If the future protection mandate was granted by a unilateral juridical act concluded in authentic form, the trustee may accept it by countersigning it.
(2) Until the moment when the mandate begins to produce legal effects, the principal may modify it, in the same form, or may revoke it by notifying the agent and the notary regarding the revocation, and the agent may renounce the mandate by notifying the principal and the notary. For third parties, the revocation of the respective mandate shall produce effects from the moment of the completion of the publicity formalities.
Article 88. Advertising formalities
The future protection mandate granted through a juridical act concluded in authentic form is subject to the same publicity formalities as authentic powers of attorney.
Article 89. Powers granted by the mandate
authentic
(1) By way of derogation from the provisions of art. 1475, the future protection mandate formulated in general terms empowers the agent to conclude all juridical acts provided for in art. 138-139. The mandate may stipulate certain limits of the agent’s powers.
(2) The agent may conclude a juridical act of disposition free of charge only with the authorization of the guardianship authority, with the exception of insignificant donations for the fulfillment of moral obligations.
§ 3. Mandate in written form
Article 90. Preparation, amendment and revocation
the mandate in written form
(1) The future protection mandate granted by a juridical act concluded in writing must be dated and personally signed by the principal.
(2) The agent accepts the mandate by countersigning it.
(3) Until the moment the mandate begins to take effect, the principal may modify or revoke it in the same form, and the agent may renounce the mandate by notifying the principal.
Article 91. Limits of granted powers
by the written mandate
(1) In the part related to the administration of the patrimony, the future protection mandate granted by a juridical act concluded in writing is limited to the juridical acts provided for in art. 138.
(2) If in the interest of the principal or for his well-being it is necessary to conclude a juridical act provided for in art. 139 or a juridical act for which the agent is not empowered by the future protection mandate, the agent may request the court to authorize the conclusion by the agent of the respective juridical act, according to art. 85.
(3) Any clause in the written mandate that contravenes the provisions of paragraphs (1) and (2) is null and void.
Subsection 4
Common provisions on measures
judicial protection
Article 92. Subsidiary nature of measures
judicial protection
(1) The judicial protection measure may be established by the court only if it is necessary and if the person is not sufficiently protected by the application of the legal provisions regarding the obligation to support the spouse and relatives, regarding the regime of the spouses’ common property, regarding assistance in decision-making or by the mandate for the future protection of the person concerned.
(2) The judicial protection measure must be individualized and proportional to the degree to which, as a result of a mental illness or physical, mental or psychological deficiency, the person cannot be aware of his actions or express his will.
Article 93. Persons in respect of whom it may
judicial protection measure be instituted
(1) The measure of judicial protection may be instituted with respect to a person with full legal capacity.
(2) The application for the establishment of a judicial protection measure may also be submitted in respect of a minor who does not have full legal capacity, but who has reached the age of 17. In this case, the judicial protection measure shall be considered established only from the date on which the person becomes of age.
Article 94. Request for the establishment of a measure
judicial protection
(1) The request for the establishment of a judicial protection measure may be submitted by:
a) the natural person in respect of whom the establishment of a judicial protection measure is requested;
b) the spouse of the person indicated in letter a);
c) the person with whom the person indicated in letter a) has been living together for more than 3 years;
d) relative or close relative of the person indicated in letter a);
e) the agent empowered by a future protection mandate, regardless of whether the mandate is effective or has ceased to be effective;
f) the guardianship authority.
(2) The guardianship authority may submit the application provided for in paragraph (1) only if the persons indicated in paragraph (1) letters a)-e) have failed to submit it within 3 months from the date of their notification by the guardianship authority.
Article 95. Revocation of the judicial protection measure
(1) At the request of the protected person or the persons indicated in art. 94 paragraph (1), the court may order the revocation of the judicial protection measure if its necessity has disappeared.
(2) Any person may notify the guardianship authority regarding the disappearance of the need for the judicial protection measure. In such a case, the guardianship authority is obliged, without undue delay, to examine the notification and, where appropriate, to request the revocation of the measure in accordance with paragraph (1).
Article 96. Publicity of the establishment, modification
and revocation of the protection measure
court
(1) The establishment of the judicial protection measure, its conditions, its modification (including the appointment of another provisional protector, curator or tutor) and its revocation become enforceable against third parties only after the registration of these data in the manner provided by the Government.
(2) For the purpose of carrying out the registration indicated in paragraph (1), the court shall transmit to the competent authority, within 3 days from the date of the finality of the decision establishing, amending or revoking the judicial protection measure, a copy of the operative part of the respective decision.
(3) The provisions of paragraph (1) shall apply accordingly to the decision of the family council by which the guardian is appointed or revoked, as well as to the decision of the family council or, as the case may be, of the guardianship authority by which, pursuant to art. 136, the powers of the guardian are limited. The guardianship authority is obliged to send a copy of this decision to the competent authority for the purpose of carrying out the respective registration, except in the case of contesting the decision in court.
(4) The person has the right to obtain extracts regarding the judicial protection measures concerning himself, his minor children, as well as the person over whom he exercises temporary protection, guardianship or tutelage. In other cases, extracts regarding the judicial protection measures shall be issued, in the manner provided by the Government, if the applicant has a legitimate interest.
(5) The absence of the notation provided for in art. 435 para. (2) point 15) does not remove the opposability against third parties if the advertising formalities provided for in this article have been fulfilled.
Subsection 5
Provisional protection
Article 97. Establishment of temporary protection
(1) The court may establish, by court decision, provisional protection with regard to a person who, pursuant to art. 65 paragraph (1), needs temporary protection or representation for the performance of only certain juridical acts.
(2) By way of derogation from paragraph (1), provisional protection may be established by the court by decision, for the period of the procedure for establishing guardianship or trusteeship.
(3) In case of emergency, the court may establish provisional protection with the postponement of the hearing of the person. The court shall hear the person as soon as possible. If the presence of the person is not possible for objective reasons, the court shall ensure the hearing of the person at the place of his/her stay, noting, as the case may be, the impossibility of communicating with him/her.
Article 98. Legal effects of temporary protection
on exercise capacity
(1) The person in respect of whom provisional protection is established retains full capacity to exercise his/her rights.
(2) The person in respect of whom provisional protection is established may not independently conclude juridical acts for which the court has appointed a provisional protector in accordance with art. 100.
Article 99. Protection of heritage
(1) The contract by which the protected person has entrusted another person with the administration of the property continues to produce effects during the period of provisional protection, except in cases where the court revokes or suspends it, with the hearing or summons of the administrator.
(2) In the absence of a mandate, the rules regarding business management shall apply.
(3) Persons entitled to request the establishment of guardianship or trusteeship are obliged to carry out the conservation acts necessary for the preservation of the patrimony of the protected person, from the moment they became aware of both the urgency of these acts and the establishment of provisional protection. The respective provisions apply to the person or the treatment institution or social institution where the person in respect of whom provisional protection is established is established.
Article 100. Appointment of the provisional guardian
(1) If protection exceeding the conditions provided for in art. 99 is necessary, any interested person may request the court to appoint a provisional protector, under the conditions and in accordance with the procedures provided for in art. 106-111, for the purpose of concluding one or more juridical acts, including dispositions, necessary for the administration of the protected person’s property.
(2) The provisional guardian may be empowered by the court to conclude juridical acts and to perform other actions provided for in art. 98.
(3) The temporary guardian is obliged to report on his/her activity to the protected person and the guardianship authority under the conditions provided for in Articles 141-145.
(4) The temporary guardian may be empowered by the court to protect the person in accordance with Articles 115-121.
Article 101. Term and termination of temporary protection
(1) Provisional protection may be established for a term not exceeding one year and may be renewed only once under the conditions provided for in art. 104 paragraph (4).
(2) If the revocation has not been ordered within the meaning of art. 95, the provisional protection shall cease:
a) upon expiry of the term for which it was established;
b) after the fulfillment of the juridical acts for which it was established;
c) from the moment when the guardianship or tutelage is considered established.
Subsection 6
Judicial protection measures in the form of
guardianship and trusteeship
§ 1. General provisions
Article 102. Cases when measures may be instituted
judicial protection in the form of
guardianship and trusteeship
(1) In respect of a person who, without being completely lacking in discernment, needs, pursuant to the provisions of art. 65 paragraph (1), to be assisted on a continuous basis, the measure of judicial protection in the form of guardianship may be instituted.
(2) Guardianship shall be established only if provisional protection cannot ensure sufficient protection of the person.
(3) In respect of a person who, pursuant to the provisions of Article 65 paragraph (1), must be continuously represented, a measure of judicial protection in the form of guardianship may be established.
(4) Guardianship shall be established only if neither provisional protection nor guardianship can ensure sufficient protection of the person.
Article 103. Term of judicial protection measures
in the form of guardianship and trusteeship
(1) The court shall establish the term for which the judicial protection measure in the form of guardianship or trusteeship is established, which may be a maximum of 5 years.
(2) By way of derogation from paragraph (1), in the case of the establishment of guardianship, the court, based on the psychiatric expert report confirming that, given the state of development of science, there are no obvious signs that the person’s condition will improve, may establish, by reasoned decision, a term of up to 10 years.
Article 104. Renewal of the judicial protection measure
(1) The court may renew the judicial protection measure for a term equal to the initial term.
(2) By way of derogation from paragraph (1), in the case of renewal of guardianship, the court, based on the psychiatric expert report confirming that there are no obvious signs that the person’s condition will improve, may establish, by reasoned decision, a term of up to 20 years.
(3) The court, at any time, may revoke or modify the judicial protection measure, as well as replace it with another judicial protection measure, after hearing the person entrusted with the protection.
(4) The court shall pronounce the decision at the request of one of the persons indicated in art. 94 paragraph (1) after examining a medical certificate issued by a psychiatrist. The court may order, by decision, the performance of a forensic psychiatric examination.
Article 105. Termination of judicial protection measures
in the form of guardianship and trusteeship
(1) Judicial protection measures in the form of guardianship and trusteeship shall cease upon the expiration of the term for which they were established, if their renewal has not been ordered, upon the finality of the court decision regarding the revocation of the respective measure and in the event of the death of the protected person.
(2) The court may order the termination of the judicial protection measure if the protected person resides outside the territory of the Republic of Moldova, and this fact makes it impossible to supervise and control the exercise of the respective measure.
§ 2. Persons responsible for protection
Article 106. Incompatibilities in the exercise of
judicial protection measures
in the form of guardianship and trusteeship
(1) The task of guardianship and trusteeship may only be performed by a person who is not in one of the incompatibilities provided for in art. 55 paragraph (4).
(2) Medical workers and pharmacists, as well as medical assistants who are in employment relations with the institution where the person over whom guardianship or curatorship is established is hospitalized or who provide services to this person, including at home, may not exercise guardianship or curatorship duties with respect to their patients.
Article 107. Appointment of curator and guardian
(1) The curator and the guardian are appointed by the court. If the family council has been established, the guardian is appointed by it in accordance with art. 114 para. (7).
(2) Considering the situation of the protected person, the abilities of those interested, as well as the composition and value of the patrimony subject to administration, the court may appoint several curators or tutors for the joint exercise of the protection measure.
(3) Without the approval of the other curators or guardians, the curator and, respectively, the guardian may only conclude the juridical acts provided for in art. 138.
(4) The court may divide the protection measure between a curator (or guardian) charged with the protection of the person and a curator (or guardian) charged with the administration of the property, and may also entrust the administration of certain property to a substitute curator (or substitute guardian).
(5) Unless the court has established otherwise, the persons designated in application of paragraphs (2)-(4) are independent and are not liable to each other, being obliged to inform each other about the decisions taken.
Article 108. Designation in the absence of instructions
for the purpose of protection
(1) In the absence of instructions for protection, indicated in art. 69, the court shall appoint as curator or guardian the spouse of the protected person or the person with whom the protected person has lived for at least 3 years, unless their cohabitation has ceased or if another valid reason prevents his appointment.
(2) If the appointment of a curator or guardian pursuant to paragraph (1) is impossible, the court shall appoint as curator or guardian the parent, relative or other person who lives with the protected person or who maintains strong and stable ties with him, unless a valid reason prevents the appointment of that person.
(3) When appointing the curator and the guardian, the court shall take into account the wishes and feelings expressed by the protected person, his/her usual relationships, the interest shown by the candidates and any recommendations of the parents and relatives, as well as of the persons in the protected person’s entourage.
Article 109. Designation of the authorized guardian
(1) If no family member or close person can assume the exercise of the protection measure in the form of guardianship or trusteeship, the court shall appoint an authorized guardian.
(2) The authorized guardian may not refuse to conclude urgent juridical acts required by the interests of the protected person or his or her well-being, in particular juridical acts of preservation.
(3) If it is in the interest of the person established or cared for in a treatment institution or social institution, the court may appoint as curator or guardian a person or a service within the respective institution, if the institution is an authorized guardian.
Article 110. Personal exercise of guardianship
and guardianship
(1) Guardianship and guardianship are personal duties.
(2) The curator and the tutor, while retaining their liability, may benefit from the assistance of third parties.
Article 111. Renunciation of the capacity of curator
and tutor
The curator and the guardian may not renounce their capacity if it has been held for less than 5 years, unless there are valid reasons (difficulty in exercising the protection measure due to the illness or incapacity of the curator or guardian, change of residence to another country, disagreement with the wishes and feelings of the protected person, etc.). The spouse and children of the protected person, as well as the authorized guardian, may renounce the capacity of curator and guardian only for valid reasons.
Article 112. Substitute curator and substitute guardian
(1) The court may, if it deems necessary and subject to the powers of the family council, if any, appoint a substitute curator or, as the case may be, a substitute guardian.
(2) If the curator or guardian is a parent or relative of the protected person on a collateral line, the substitute curator or, as the case may be, the substitute guardian shall be appointed, if possible, from the other collateral line.
(3) If no family member or appropriate person can be a substitute curator or substitute guardian, the court may appoint an authorized guardian.
(4) The substitute curator or, as the case may be, the substitute guardian shall supervise the juridical acts concluded by the curator or, as the case may be, by the guardian in order to exercise the protection measure and shall inform the guardianship authority without delay if any violations are found in its exercise. Otherwise, he shall be obliged to repair the damage caused to the protected person.
(5) The substitute curator or, as the case may be, the substitute guardian shall assist or, as the case may be, represent the protected person if his or her interests conflict with those of the curator or, as the case may be, the guardian or if the curator or guardian cannot assist or represent him or her due to the limits of their powers.
(6) The capacity of substitute curator and substitute guardian shall cease upon the cessation of the capacity of curator and, respectively, guardian. The substitute curator and substitute guardian shall be obliged to request the substitution of the curator or, as the case may be, of the guardian in the event of the cessation of his capacity. Otherwise, he shall be obliged to repair the damage caused to the protected person.
Article 113. Special curator and special guardian
(1) If the substitute curator or, as the case may be, the substitute guardian has not been appointed, the curator and guardian whose interests conflict with the interests of the protected person, due to the conclusion of a juridical act or a series of juridical acts, as well as the curator and guardian who cannot assist or represent the protected person due to the limit of their powers, must request the family council or, in its absence, the guardianship authority to appoint a special curator or, as the case may be, a special guardian.
(2) The appointment of the special curator and the special guardian may also be made at the request of any interested person or ex officio.
(3) In the cases provided for in Article 581 of the Code of Civil Procedure, the special curator or special guardian shall be appointed by the court examining the case in which the protected person participates.
Article 114. Family council of the protected person
(1) When establishing a judicial protection measure in the form of guardianship, the court may establish a family council if the need to protect the person or the composition and value of the patrimony justifies this and if the composition of the family and the entourage of the protected person allow this.
(2) The members of the family council are appointed by the court for the duration of the guardianship.
(3) The family council shall be composed of at least 3 members with voting rights. The guardian shall be an ex officio member of the family council, without voting rights.
(4) The parents and other relatives of the protected person, as well as other persons who show interest in the protected person and his or her well-being, may be members of the family council.
(5) The court shall ensure, to the extent possible, the representation in the council of both collateral lines of kinship.
(6) The court shall appoint the members of the family council based on the wishes and feelings expressed by the protected person, his/her usual relationships, the interest shown by the candidates and any recommendations from parents and relatives, as well as from his/her entourage.
(7) The family council appoints and revokes the guardian, the substitute guardian and, as the case may be, the special guardian according to art. 107-113.
(8) In the absence of the family council, its legal powers shall be exercised by the guardianship authority. For the period in which there is no family council, the guardian, substitute guardian or, as the case may be, the special guardian shall be appointed and revoked by the court.
§ 3. Protection of personal interests
patrimonial
Article 115. Obligation to inform about the situation
personal
The guardian and curator are obliged to provide the protected person, without prejudice to his/her interests, with the information that third parties are obliged to provide, regarding his/her personal situation, regarding the acts and decisions that concern him/her, the degree of urgency and their effects, as well as the consequences of not performing the act or not making the decision if the protected person refuses them.
Article 116. Strictly personal documents
(1) Unless otherwise provided by law, acts that involve the strictly personal consent of the protected person cannot be concluded by the person entrusted with the protection and do not require his approval.
(2) The declaration of the child’s birth, its recognition, the acts of parental protection of the child, the declaration of choice or change of the child’s name and the consent for the adoption of the protected person or the child of the respective person are considered strictly personal acts.
Article 117. Assistance and representation in other cases
personal documents
(1) Except for the cases provided for in Article 116, the protected person shall independently make decisions regarding his personal non-patrimonial interests to the extent that his condition allows this.
(2) If the condition of the protected person does not allow him to make a decision on his own, the family council or, in its absence, the guardianship authority may provide that he will benefit from the assistance of the person entrusted with the protection either in all the acts concerning his person or only in certain acts expressly indicated. If this assistance is not sufficient, the court may, in addition, empower the guardian to represent the protected person in the respective acts.
(3) The person in charge of protection may take protective measures for the protected person, necessary to avoid the danger generated by the behavior of the protected person. The person in charge of protection shall promptly inform the family council or, in the absence of the council, the guardianship authority.
(4) In case of emergency, the person responsible for protection may not, without the authorization of the family council or, in its absence, of the guardianship authority, take a decision that has the effect of seriously violating the physical integrity of the protected person or the privacy of his or her private life.
Article 118. Resolving conflict of interest
(1) The application of the provisions of Articles 115-119 may not have the effect of derogating from the provisions of the special law requiring the intervention of a legal representative.
(2) If the exercise of the protection measure has been entrusted to a person or a treatment or social institution under the conditions of art. 109 paragraph (3) and if that person or institution must perform an act for which the authorization of the guardianship authority or the family council is required, according to art. 117 paragraphs (3) and (4), or must perform for the benefit of the protected person a diligence or an act for which the special law requires the intervention of the guardianship authority, the latter may decide, if it considers that there is a conflict of interests, to entrust the performance of the respective act to the substitute curator or substitute guardian, if he has been appointed, and in his absence, to a special curator or special guardian.
Article 119. Freedom of choice of residence
and freedom of communication
(1) The protected person has the right to freely choose his or her domicile or temporary residence.
(2) The protected person has the right to communicate with third parties, whether they are parents or other persons. The protected person has the right to be visited and, where appropriate, to be hosted by them.
(3) If the person entrusted with the protection imposes restrictions on the exercise of the rights established in paragraphs (1) and (2), the decision shall be made by the family council or, in its absence, by the guardianship authority.
Article 120. Authorization of marriage
(1) The marriage of the person in respect of whom guardianship has been established is permitted at his or her own request unless the court has ordered, in the decision establishing the guardianship, that this is permitted only with the consent of the guardian or, in case of refusal by the guardian, with the authorization of the guardianship authority.
(2) The marriage of the person in respect of whom guardianship has been established is permitted only with the authorization of the family council or, in its absence, of the guardianship authority, after hearing the future spouses and, where applicable, the parents.
Article 121. Reporting on protection
personal non-pecuniary interests
At the time of the establishment of judicial protection measures in the form of guardianship and trusteeship or subsequently, the family council or, in its absence, the guardianship authority establishes the conditions under which the curator or, as the case may be, the guardian submits the report on the protection of the non-patrimonial personal interests of the protected person.
§ 4. Juridical acts concluded during the period of guardianship
Article 122. Assistance of the curator
(1) The person subject to the measure of judicial protection in the form of guardianship may not, without the assistance of the guardian and the authorization of the guardianship authority, conclude any juridical act provided for in art. 139.
(2) When concluding a juridical act in written or authentic form, the guardian’s assistance consists of affixing his signature next to the signature of the protected person.
(3) The curator is obliged to explain to the protected person the content of the juridical act and its effects, and is also obliged to demonstrate the diligence he displays in his own activities.
(4) Under penalty of absolute nullity, any notification relating to the acts provided for in art. 139 sent to the protected person must also be sent to the curator.
(5) It is not possible to authorize, and the curator is not entitled to approve, the conclusion by the protected person of the juridical acts provided for in art. 140 para. (1) letters a) and b), with the exceptions provided for in art. 140 para. (2).
Article 123. Powers of representation of the curator
(1) The curator, in exercising the duties of protecting the protected person, may not substitute the protected person to act on his or her behalf.
(2) If he finds that the person subject to the judicial protection measure in the form of guardianship seriously compromises his interests, the guardian may request the court to authorize him to conclude a specific juridical act or to request the establishment of guardianship.
(3) If the curator refuses to provide assistance in concluding a juridical act for which his assistance is requested, the protected person may request authorization from the guardianship authority to conclude the respective juridical act independently.
Article 124. Liberalities of the person subject to the measure
judicial protection in the form of guardianship
(1) The protected person may draw up a will independently.
(2) The protected person may make donations only with the assistance of the curator.
(3) The curator is considered to have an interest that conflicts with the interests of the protected person if he is the donee.
Article 125. Determination of the content of capacity
exercise
When establishing a measure of judicial protection in the form of guardianship, by way of derogation from the provisions of art. 122 and for the purpose of complying with the provisions of art. 92 paragraph (2), the court shall list the categories of juridical acts that the protected person has the capacity to conclude independently or shall list the categories of juridical acts for which the assistance or representation of the guardian is necessary. The provisions of art. 127 paragraph (3) shall apply accordingly.
Article 126. Restricted guardianship
(1) At any time, the court may order the establishment of restricted guardianship.
(2) In the case of restricted guardianship, the guardian only collects the protected person’s income from an account opened in his or her name.
(3) The curator independently ensures the payment of the protected person’s debts to third parties and deposits the surplus into the account left at the disposal of the protected person or transfers it in cash.
(4) Without prejudice to the provisions of Article 119, the guardianship authority may authorize the conclusion by the curator of a residential rental contract or another contract providing housing for the protected person.
(5) Restricted guardianship is subject to the provisions of Articles 137 and 141-145, which shall apply accordingly.
§ 5. Juridical acts concluded during the guardianship period
Article 127. Powers of representation of the guardian
(1) Except in cases where the law or customs empower the person subject to the measure of judicial protection in the form of guardianship to act independently and only in the event that the protected person is completely lacking in discernment, the guardian represents him/her in all juridical acts.
(2) If the person is not completely lacking in discernment, for the purpose of complying with the provisions of art. 92 paragraph (2), the court, in the court decision on the establishment of guardianship, shall list the juridical acts that the protected person has the capacity to conclude independently or with the assistance of the guardian, without the need for other authorizations.
(3) In particular, in the court decision on the establishment of guardianship, the juridical acts provided for in art. 139 paragraph (1) which have as their object movable property whose individual value does not exceed 10,000 lei may be exempted from the authorization requirement.
Article 128. Administration of a person’s property
subject to judicial protection measure
in the form of guardianship
Subject to the provisions of art. 127 paragraph (2), the person subject to the measure of judicial protection in the form of guardianship is represented in the juridical acts necessary for the administration of his or her property in accordance with art. 131-145.
Article 129. Representation in judicial proceedings
(1) The guardian may represent the protected person in order to defend his or her personal non-patrimonial rights only after authorization from the family council or, in the absence of the council, from the guardianship authority or if representation has been prescribed by one of them.
(2) The family council or, in its absence, the guardianship authority may prescribe to the guardian to abandon the action or to conclude a settlement agreement.
Article 130. Will of the subject person
judicial protection measure under
form of guardianship
(1) The protected person may independently draw up or amend a will after the establishment of guardianship only with the authorization of the family council or, in its absence, of the guardianship authority. In this case, the guardian may not assist and represent the protected person.
(2) The protected person may independently revoke the will drawn up before or after the establishment of guardianship.
Subsection 7
Administration of the property of the subject person
judicial protection measure in the form of guardianship
§ 1. General provisions
Article 131. Principles of administration
(1) The guardian represents the protected person in the documents necessary for the administration of his or her property.
(2) In the process of administration, the guardian is obliged to exercise prudent and diligent care and to act exclusively in the interest and well-being of the protected person.
Article 132. The role of the substitute guardian
The substitute guardian supervises the conduct of the operations that the guardian is required to perform, as well as the manner of investing or reinvesting the capital according to the prescriptions of the family council or, in its absence, of the guardianship authority.
Article 133. Intervention of third parties
(1) Third parties may inform the guardianship authority about the guardian’s actions or omissions that are likely to harm the interest or well-being of the protected person.
(2) If, upon the appointment of the guardian, third parties become aware of some actions or omissions of the guardian that clearly compromise the interest or well-being of the protected person, they are obliged to inform the guardianship authority about this.
§ 2. Competence of the family council
and the guardianship authority
Article 134. Annual budget and contracting
BUSINESS
(1) The guardian approves the budget necessary for exercising guardianship depending on the importance of the protected person’s property, approves the operations necessary for the administration of these property and the annual amounts necessary for the maintenance of the protected person and for the reimbursement of the expenses of administering the property.
(2) The guardian shall inform the family council or, in its absence, the guardianship authority about the approval of the budget. In case of difficulty, the budget shall be approved by the family council or, in its absence, by the guardianship authority.
(3) The family council or, in its absence, the guardianship authority may authorize the guardian to include in the administration expenses the remuneration of the administrators contracted under his own responsibility.
(4) The family council or, in its absence, the guardianship authority may authorize the guardian to conclude a contract for the administration of securities and financial instruments belonging to the protected person. The guardian shall choose the third party contractor taking into account his business experience and solvency.
(5) The contract provided for in paragraph (4) may be terminated in the name of the protected person at any time. Any clause contrary to this article is null and void.
Article 135. Making investments
(1) The family council or, in its absence, the guardianship authority determines the amount that the guardian is obliged to invest in the capital (money, securities or other financial instruments, shares, receivables, etc.) of the protected person.
(2) The family council or, in its absence, the guardianship authority shall prescribe all the measures it deems useful for the investment or reinvestment of the capital either in advance or for each operation.
(3) The investment or reinvestment shall be carried out by the guardian within the prescribed period and in the prescribed manner. If the guardian fails to do so within the prescribed period, he shall owe the protected person interest for delay.
(4) The family council or, in its absence, the guardianship authority may prescribe that a certain amount of money be deposited in a special account of the protected person, from which the guardian may make withdrawals only with their authorization.
Article 136. Limitation of the guardian’s powers
(1) The family council or, in its absence, the guardianship authority may establish the category of juridical acts that the guardian may not conclude without their authorization.
(2) If the family council refuses to provide the guardian with the necessary authorization, the guardian may request it from the guardianship authority if it is found that the conclusion of the juridical act is in the interest of the protected person or for his or her well-being.
§ 3. Powers of the guardian
Article 137. Preparation of the inventory
(1) Within 3 months of the establishment of guardianship, the guardian shall initiate, in the presence of the substitute guardian, if he has been appointed, the inventory of the protected person’s property and shall transmit the inventory act to the guardianship authority. The guardian shall be obliged to ensure that the inventory is updated.
(2) In order to draw up the inventory, the guardian is entitled to obtain all necessary information and documents from any public or private person, without being able to object to business secrecy, banking secrecy or the personal nature of the data.
(3) If the inventory has not been drawn up or it is confirmed that it is incomplete or inaccurate, the protected person, and after his or her death – the successor, may prove the value and composition of the property by any means of evidence.
Article 138. Juridical acts that are not subject to
authorization
(1) The guardian may only conclude juridical acts of conservation and, subject to the provisions of art. 127 paragraph (2), the administration acts necessary for the administration of the protected person’s property.
(2) The guardian acts independently in court to defend the patrimonial rights of the protected person.
(3) By way of derogation from the legal provisions, the lease agreement concluded by the guardian as lessor does not grant the protected person in his capacity as lessee, with respect to whom the guardianship has ceased, any right of pre-emption upon the expiry of the lease agreement. These provisions do not apply to the lease agreement concluded before the establishment of the guardianship and extended by the guardian.
Article 139. Juridical acts subject to authorization
(1) Unless the court decision establishing or amending the protection measure or the law provides otherwise, the following juridical acts, concluded in the name of the protected person, shall not produce legal effects unless authorized by the family council or, in its absence, by the guardianship authority:
a) the sale-purchase contract and other legal dispositional documents;
b) the lease agreement and other juridical acts for the administration of the protected person’s property whose term exceeds the term of the protection measure;
с ) transaction contract;
d) the contract for the sharing of common property;
e) the act of acceptance or renunciation of inheritance;
f) the contract for receiving a loan;
g) the contract between the guardian or persons affiliated with him and the protected person, with the exception of gratuitous acts, concluded for the benefit of the protected person. Upon concluding this juridical act, the guardian is considered to have an interest that conflicts with the interest of the protected person.
(2) The authorization decision must determine the essential conditions of the juridical act and, where appropriate, the price or other consideration. Authorization is not required in the case of a forced sale or in the case of the exercise of the right of pledge or mortgage.
(3) The authorization of a juridical act of disposition regarding a real right of the protected person over an immovable property or a share in the capital of a legal person under private law may be granted only after the assessment of their market value.
(4) It is possible to dispose of the real right provided for in paragraph (3) against a price or other consideration lower than its market value only for justified reasons, based exclusively on the interest of the protected person, which will be argued in the authorization decision.
(5) The person who concludes the juridical act on behalf of the protected person is obliged, without delay, to submit to the guardianship authority a copy of the juridical act authorized in accordance with the provisions of this article, as well as copies of the evidence demonstrating the performance of the obligations arising from the respective juridical act.
Article 140. Prohibited juridical acts
(1) The following may not be authorized, and the guardian is not entitled to conclude:
a) acts regarding the free alienation of the protected person’s property or rights, including the debt remission, the free renunciation of an acquired right, the release of a real or personal guarantee established for the benefit of the protected person, without the guaranteed obligation having been fully discharged, as well as acts regarding the establishment of a real or personal guarantee to guarantee the obligations of a third party;
b) acts regarding the acquisition from a third party of a right or claim that the third party has against the protected person;
c) documents regarding the exercise of entrepreneurial or business activity on behalf of the protected person.
(2) An exception to the provisions of paragraph (1) letter a) is made by insignificant donations for the fulfillment of moral obligations.
§ 4. Preparation, verification and approval
reporting
Article 141. Annual report
(1) The guardian shall prepare an annual report on the administration of the estate, to which the primary documents shall be attached.
(2) When preparing the report, the guardian shall request the institutions with which accounts are opened in the name of the protected person to decipher the operations for the reference year, without being able to object to business secrecy, banking secrecy or the personal nature of the data.
(3) The guardian is obliged to ensure the confidentiality of the report. Copies of the report and the primary documents shall be given by the guardian to the protected person, if he is at least 16 years old, as well as to the substitute guardian, if he has been appointed, and, if the guardian considers it necessary, to other persons entrusted with the protection.
(4) After hearing the protected person and obtaining his/her consent, if he/she has reached the age of 16 and if his/her condition allows, the guardianship authority may authorize the transfer of copies of the report and primary documents or part of them to the spouse, parent or another close person if they have a legitimate interest.
Article 142. Verification of reporting
(1) The guardian shall submit an annual report on the administration of the estate, together with the primary documents, for verification by the guardianship authority.
(2) If a substitute guardian has been appointed, he shall check the report before sending it together with his observations.
(3) In order to verify the report, the guardianship authority is entitled to obtain the data provided for in art. 141 paragraph (2).
(4) The guardianship authority may order the verification of the report by the substitute guardian, if he has been appointed.
(5) If the family council has been established, the guardianship authority may order the verification and approval of the report by it.
Article 143. Exemption from the obligation to prepare
reporting
If the guardianship has not been entrusted to an authorized guardian, the guardianship authority may, by way of derogation from the provisions of Articles 141 and 142 and taking into account the insignificant value of the protected person’s property, exempt the guardian from the obligation to draw up the report.
Article 144. Auditing of the report
If the composition and value of the protected person’s property justify and allow for the verification and approval of the report by an expert or auditor, the guardianship authority may order this at the expense of the protected person and taking into account the protected person’s property.
Article 145. Reporting on the termination of the capacity
by tutor
(1) Upon termination of the guardianship, the guardian is obliged to prepare a report of the operations that have occurred since the preparation of the last annual report and to submit it for verification and approval according to art. 142 and 144.
(2) Within 3 months of the termination of the guardianship, the guardian or his successors are obliged to submit copies of the reports for the last 3 years and of the report indicated in paragraph (1) to the person in charge of administering the property of the protected person or his successors and, as the case may be, to the person who has acquired full legal capacity, if he has not received them.
(3) The provisions of paragraphs (1) and (2) shall not apply in the case provided for in art. 129.
(4) The guardian is obliged to submit to the persons indicated in paragraph (2) the primary documents necessary for the continuation of the administration of the protected person’s property or to ensure the devolution of the inheritance patrimony, as well as the initial inventory act and the updates drawn up.
Section 5
Common provisions on guardianship and trusteeship
minors and protective measures
§ 1. The guardianship authority
Article 146. Guardianship authority and competence
in the field of protective measures
(1) Tutelary authorities are local public administration authorities.
(2) The guardianship authority at the domicile or temporary residence of the minor natural person or of the person subject to a protection measure (referred to for the purposes of this section as “ protected person ”) shall supervise the activity of the guardian, curator or other person entrusted with protection.
(3) The guardianship authority:
a) exercises the powers expressly provided by law in the field of protection measures;
b) performs other duties of supervision of the exercise of the protection measure, except for those given by law to the competence of the court and the family council;
c) keeps the personal file of the protected person, transmits it to the court and ensures its return after the completion of the trial.
Article 147. Procedure applicable to the guardianship authority
When making a decision regarding the guardianship and trusteeship of the minor, as well as the protection measures, the guardianship authority shall comply with the provisions of this section.
Article 148. Hearing of the protected person
(1) The guardianship authority must hear the protected person in accordance with his age and degree of maturity. He may be accompanied by another person of his choice, who will not have the capacity of his representative.
(2) The hearing of the protected person may take place at the headquarters of the guardianship authority, at the person’s domicile or temporary residence, in the treatment institution or social institution, as well as in any other appropriate place.
(3) The hearing shall take place in closed session, in which the persons listed in art. 94 para. (1) may participate. The person may request to be heard individually and in closed session, accompanied, if desired, by a trusted person. If the guardianship authority considers it necessary, the protected person may be heard in the presence of the other participants.
(4) If it deems it appropriate, the guardianship authority may conduct the hearing of the person in the presence of the doctor treating him or in the presence of another relevant person.
(5) The guardianship authority shall make every possible effort to ascertain the wishes and feelings of the protected person regarding the decision to be made, using communication methods that correspond to the state or situation of the person being heard.
Article 149. Hearing the protected person at the place of his/her stay
If the person’s presence is not possible for objective reasons, the guardianship authority ensures that he or she is heard at his or her place of residence, noting through its act, as the case may be, the impossibility of communicating with him or her.
Article 150. Adversarial debate of the issue
At the request of any interested person or ex officio, the guardianship authority may order that the resolution of a matter be carried out in adversarial proceedings.
Article 151. The right to legal assistance
(1) In any procedure carried out by the guardianship authority, the minor, in accordance with his or her age and degree of maturity, and the person subject to a protection measure may choose a lawyer or may request the appointment of a lawyer who provides legal assistance guaranteed by the state, regardless of the opinion or opposition of the person entrusted with the protection.
(2) The right to be assisted by a lawyer of one’s choice or by a lawyer providing state-guaranteed legal assistance shall be brought to the attention of the protected person in the text of the summons and upon its first presentation.
(3) If, during the procedure conducted by the guardianship authority, the protected person is not assisted by a lawyer, at his/her request or ex officio, the guardianship authority shall request the coordinator of the territorial office of the National Council for State-Guaranteed Legal Assistance to appoint a lawyer, who will have the powers of a legal representative in the respective procedure.
(4) The legal assistance provided for in paragraph (3) shall be provided free of charge.
Article 152. Hearing other persons
At the request of the participants or ex officio, the guardianship authority shall hear the persons indicated in art. 94 paragraph (1).
Article 153. Making findings
At the request of the participants or ex officio, the guardianship authority may order a social investigation or conduct findings, evaluations or expertise.
Article 154. Consultation of personal file
(1) The protected person or the person in charge of protection, as well as their lawyers, may examine the materials of the personal file and make extracts and copies from them.
(2) If the request for consultation of the file is submitted by the protected person, the guardianship authority may, by reasoned decision, communicated to the protected person, exclude one or more documents from the file if they could cause serious moral damage.
(3) The lawyer of the protected person may make extracts and copies from the materials of the case file. The lawyer is prohibited from transmitting the copies thus obtained to the protected person or third parties.
(4) Copies of family council decisions, guardianship authority decisions and court decisions related to guardianship and curatorship of minors and protection measures shall be kept in the personal file and may be issued only to participants and persons who participated in decision-making or were referred to in decisions or rulings.
(5) Third parties who justify a legitimate interest may obtain copies of the operative part of the decisions and rulings mentioned in paragraph (4) with the authorization of the guardianship authority.
Article 155. Decision of the guardianship authority
(1) The guardianship authority shall resolve the requests addressed to it within 30 days from the date of submission if they do not require obtaining additional information, presenting additional evidence or any other investigation, except in cases where the guardianship authority orders a contradictory debate according to art. 150. The guardianship authority shall warn the petitioner about this and inform him of the date on which the decision will be taken.
(2) The decisions of the guardianship authority in matters concerning the guardianship and curatorship of minors and protection measures must be motivated and adopted within a period not exceeding 3 months from the date of submission of the respective application. The decision shall be communicated to the protected person, the person in charge of protection and, where appropriate, to the members of the family council within 3 months from the date of its adoption.
§ 2. Family council
Article 156. Convening the family council
(1) The family council meeting is convened by the guardianship authority at the request of:
a) 2 members of the council;
b) the guardian or substitute guardian;
c) a minor placed under guardianship or trusteeship who has reached the age of 10;
d) the person subject to a protection measure.
(2) The notice of the meeting shall be sent to the members of the council at least 10 days before the date of the meeting.
(3) The members of the family council are obliged to appear in person at the meeting. A member who, without a valid reason, fails to appear at the meeting may have his/her respective capacity revoked.
(4) By the court decision on the basis of which the members of the family council are appointed or by a subsequent decision, at the request of a member or ex officio, the court may establish that the council adopts decisions without the participation of the guardianship authority.
Article 157. Family council meeting
The family council meeting is deliberative and decisions may be adopted if the majority of the council members with voting rights participate in it. If there is no quorum, the guardianship authority may convene a repeated meeting or, in case of emergency, may take an independent decision.
Article 158. Adoption of the council’s decision
family without calling in
meeting (by correspondence)
(1) If the guardianship authority considers that the family council can decide on an issue without convening a meeting, it shall communicate the text of the decision to each member, attaching the necessary explanations.
(2) A member who, without a valid reason, does not cast his vote may have his membership revoked.
Article 159. Adoption of the decision by the council
family
(1) The decision of the family council shall be adopted by the majority vote of the members with voting rights.
(2) Each member of the family council, except for the guardian and, where applicable, the curator, has the right to one vote, which is not transferable.
(3) The member of the family council is obliged to declare whether he has a direct or indirect interest in the matter under discussion (conflict of interest) and to abstain from voting. The presence of the member in conflict of interest is taken into account when determining the quorum for adopting the decision, but his vote is not taken into account when adopting the decision covered by the conflict of interest. The legal provisions on conflict of interest in the case of representation in concluding juridical acts apply accordingly.
Article 160. Secrecy of family council meetings
(1) The meetings of the family council are closed.
(2) The members of the family council are obliged to maintain the confidentiality of data in relations with third parties.
(3) The protected person may attend the council meeting only in an advisory capacity, except in the case when the guardianship authority considers that this would be contrary to the interests of the protected person.
(4) The decisions of the family council must be motivated. If the decision is not adopted unanimously, the opinion of each member shall be attached to the decision.
Article 161. Preparation of the family council decision
(1) Each member present at the family council meeting must sign the decision adopted during the meeting.
(2) Within 10 days from the date of adoption of the decision, the elected president of the family council meeting shall submit the adopted decision to the guardianship authority.
Article 162. Opposition of the guardianship authority
(1) If the guardianship authority finds that the decision of the family council is contrary to the interests of the protected person or his/her wishes and feelings, it must oppose the decision of the family council within 15 days from the date of receipt in accordance with art. 161 paragraph (2), by taking a decision on the opposition in this regard, which is not subject to challenge.
(2) By reasoned request, the protected person or the person responsible for protection may object to the decision of the family council within 15 days from its receipt by the guardianship authority according to art. 161 paragraph (2).
(3) In the event of an opposition pursuant to paragraph (1) or (2), the guardianship authority, within 10 days from the date of submission of the respective application, shall convene the family council and organize a new meeting, which it shall preside over, without having the right to vote, in order to deliberate again on the issue to which the opposition was made.
(4) The decision of the family council shall have legal effects after the expiry of the 15-day period from its receipt by the guardianship authority according to art. 161 paragraph (2) if no opposition was made during the given period.
§ 3. Contesting decisions of the guardianship authority
and the family council
Article 163. Appeal in court
(1) The decisions of the guardianship authority, as well as the decisions of the family council, adopted in accordance with art. 162 paragraph (3), may be contested in court within 30 days from the date of their adoption, except for the case when the contestation is filed by the protected person, the person in charge of the protection and the guardianship authority, in which case, the contestation term shall run from the date of communication of the decision. In the case of contesting the decision of the guardianship authority, the filing of a prior application is not necessary.
(2) The contested decision shall be annulled by the court, in whole or in part, if:
a) is fundamentally illegal as being issued contrary to the provisions of the law;
b) is illegal as being issued in violation of competence;
c) is illegal as being issued in essential violation of the established procedure.
(3) At the request of the person filing the appeal or ex officio, the court, in addition to annulling the contested decision, shall either order the issuer to adopt a new decision or issue a court decision resolving the merits of the issue covered by the contested decision.
Article 164. Persons entitled
to file an appeal
(1) The complaint may be filed by the persons listed in art. 94 paragraph (1), as well as by the persons responsible for protection, even if they did not participate in the procedure carried out by the guardianship authority or in the family council meeting.
(2) The summons regarding the hearing of the appeal shall be sent to all persons who have the right to file an appeal and who will have the right to participate in its examination.
(3) The court that resolves the appeal shall decide ex officio on the suspension or non-suspension of the contested decision, taking into account the interests of the protected person.
Section 6
Declaring a person missing without
news or deceased
Article 165. Declaring a person missing
(1) A natural person may be declared missing if he is absent from his domicile and at least one year has passed since the day of receiving the last news about his whereabouts. The disappearance is declared by the court at the request of the interested person.
(2) In the event of impossibility to determine the day of receipt of the last information about the missing person, the term for declaring the missing person missing shall begin to run from the first day of the month following the month in which the last information about the missing person was received, and in the event of impossibility to determine this month, from the first of January of the following year.
Article 166. Protection of the property of the missing person
suddenly
(1) If it is necessary to permanently administer the property of a person declared missing, the court shall appoint an administrator, with whom the guardianship authority shall conclude a fiduciary administration contract. At the request of the interested person, the court may also appoint an administrator before the expiry of one year from the date of receipt of the last news about the whereabouts of the missing person.
(2) Declaring a person missing does not entail the modification or termination of his or her rights and obligations.
Article 167. Effects of the appearance of the declared person
missing without a trace
(1) If the person declared missing appears or if there is news about his/her whereabouts, the court, at the request of the interested person, shall annul the decision declaring the person missing and, as the case may be, terminate the fiduciary administration of his/her property.
(2) The person declared missing may request the trustee to repair the damage caused by the improper administration of his or her property.
Article 168. Declaration of a deceased person
(1) A person may be declared deceased by court decision if there is no news of his/her whereabouts at his/her domicile for 3 years or after 6 months if he/she disappeared in circumstances that posed a danger to life or that give grounds to assume that he/she died as a result of a certain accident.
(2) A serviceman or other person missing in connection with military actions may be declared deceased only after 2 years have elapsed since the cessation of military actions.
(3) The day of death of a person declared deceased shall be considered the day on which the court decision on the declaration of his death became final. If a person who disappeared in circumstances that posed a danger to life or that give reason to assume that he died as a result of an accident is declared deceased, the court may declare the day of his presumed death as the date of death.
(4) The declaration of death produces the same legal effects as the ascertained physical death.
Article 169. Effects of the appearance of the declared person
deceased
(1) In the event of the appearance or discovery of the whereabouts of the person declared deceased, the court shall annul the decision regarding the declaration of his or her death.
(2) Regardless of the time of its occurrence, the person declared deceased may request from any other person to return to him the property that were preserved and that passed to him free of charge after the declaration of his death.
(3) The acquirer for a consideration is not obliged to return the goods unless it is proven that at the date of their acquisition he knew or should have known that the person declared deceased was alive. If the goods were not preserved, the acquirer in bad faith is obliged to return their value.
(4) If the property of the person declared deceased have passed to the state based on the right of succession and have been sold, after the annulment of the decision declaring the person’s death, the amount realized from the sale of the property shall be returned to the person.
Article 170. State registration of documents
civil status
(1) The following civil status documents are subject to state registration:
a) birth;
b) adoption;
c) establishing paternity;
d) the conclusion of marriage;
e) dissolution of marriage;
f) change of name;
g) death.
(2) The registration of civil status acts is carried out by the civil status act registration bodies by entering data in the civil status act registers and issuing certificates based on these entries.
(3) The bodies that carry out the registration of civil status acts, the procedure for registering these acts, the procedure for rectifying and amending them, the restoration and cancellation of civil status act entries, the form of civil status act registers and certificates, as well as the method and terms of keeping civil status act registers, shall be established by law.
Chapter II
LEGAL PERSON
Section 1
General provisions
§1. Common provisions
Article 171. The concept of legal person
(1) A legal person is a legal subject established under the law, having an independent organization and its own and distinct patrimony, assigned to the achievement of a certain purpose in accordance with the law, public order and good morals.
(2) A legal person may acquire and exercise in its own name patrimonial and personal non-patrimonial rights, assume obligations, and may be a plaintiff and defendant in court.
(3) The legal person may be organized corporately or on the basis of membership, may be dependent or independent of a certain number of members, may have a profit or non-profit purpose.
(4) Depending on their participation in the establishment of the property of the legal person, the founders (members) have or do not have rights of claim against it. Legal persons in respect of which the founders (members) have rights of claim are commercial companies and cooperatives. Legal persons in respect of which the founders (members) do not have rights of claim are non-commercial organizations.
Article 172. Legal regime applicable to persons
foreign legal
Foreign legal persons are assimilated, under the terms of the law, to legal persons of the Republic of Moldova.
Article 173. Types of legal persons
Legal persons are of public law or private law which, in civil relations, are situated in positions of equality.
Article 174. Legal persons under public law
(1) The State and the administrative-territorial units participate in civil legal relations on an equal footing with other subjects of law. The powers of the State and the administrative-territorial units are exercised in such relations by their bodies, in accordance with their competence.
(2) The bodies empowered to exercise part of the functions (attributions) of the Government possess legal personality only if this arises from the provisions of the law or, in cases expressly provided for by law, from the acts of the central or local public administration authorities.
(3) By way of derogation from the provisions of paragraph (2), legal persons under public law may be established in other ways, in cases expressly provided for by law.
(4) The following articles of this chapter do not apply to legal persons governed by public law, except in cases expressly provided for.
Article 175. Legal persons under private law
(1) Private law legal persons may be freely established only in one of the forms provided for by law.
(2) Legal persons under private law may have a profit-making (commercial) and a non-profit (non-commercial) purpose.
Article 176. The person’s capacity to use
legally
(1) The capacity of use of a legal person is acquired on the date of state registration and ceases on the date of its deletion from the advertising register provided for by law.
(2) A legal person for profit may carry out any activity not prohibited by law, even if it is not provided for in the act of incorporation.
(3) A non-profit legal person may only carry out the activity provided for by law and the act of incorporation.
(4) Legal persons under public law shall participate in the civil circuit to the extent necessary to achieve its purposes. They shall be assimilated to legal persons under private law to the extent that they participate in the civil circuit.
(5) A legal person may engage in certain types of activities, the list of which is established by law, only on the basis of a special permit (license). The right of a legal person to engage in the activity for which a license is required arises at the time of its obtaining or at the time indicated therein and ceases upon the expiration, suspension or withdrawal of the license, unless otherwise provided by law.
(6) A legal person may have its rights limited only in the cases and in the manner provided for by law.
Article 177. Legal person’s capacity to exercise legal rights
(1) The legal person shall exercise its rights and perform its obligations through an administrator from the date of its establishment. The legal person may have one or more administrators.
(2) The administrator is a natural person or, in cases expressly provided for by law, a legal person who, under the terms of the law and the act of incorporation, is designated to act, in relations with third parties, individually or collectively, in the name and on behalf of the legal person. A for-profit legal person may have another legal person as administrator.
(3) In relations with third parties, the legal person is bound by the juridical acts of its competent bodies, except when the acts thus concluded exceed the limits of its powers provided by law. The provisions of the act of incorporation or the decisions of the bodies of the legal person that limit the powers conferred by law on the administrator are unenforceable against third parties, even if the publicity formalities have been fulfilled.
(4) The registration of the administrator or other person with the right to represent the legal person in the advertising register provided for by law makes any infringement regarding their designation unenforceable against third parties, unless the legal person demonstrates that the third parties in question were aware of the infringement.
(5) If the legal person has several administrators, each of them may act individually in the name and on behalf of the legal person, except when the obligation of the additional consent of another administrator or of all administrators results expressly from the law or from the act of incorporation. Such an exception is opposable to third parties only if it is noted in the advertising register in which the respective legal person is registered. In any case, any of the administrators has the power to individually receive legal documents or other notifications.
(6) The legal provisions regarding representation and mandate shall apply to the legal relations between the legal person and the administrator unless the law or the deed of incorporation provides otherwise.
(7) The legal person must have at least one administrator. If the administrator is not appointed, the members or creditors of the legal person may request the court to appoint him. The administrator appointed by the court is revoked by the court if the competent body of the legal person decides to appoint the executive body. Until the appointment of the administrator, the legal person is represented by any of its members for the purpose of receiving legal documents or other notifications. The member shall immediately forward to the appointed administrator all legal documents and other notifications received.
Article 178. Articles of incorporation of a legal person
(1) A legal person shall operate on the basis of the articles of association or on the basis of the articles of association and the articles of association, or only on the basis of the articles of association. Legal persons under public law, and in cases provided for by law, also legal persons under private law with non-profit purposes, shall operate on the basis of the general rules regarding organizations of the respective type.
(2) The contract for the establishment of a legal person shall be concluded and the statute shall be approved by its founders (members). A legal person established by a single founder shall operate on the basis of the statute approved by him.
(3) The articles of incorporation of a legal person must contain its name and registered office, the method of administration of the activity and other data provided by law for legal persons of the respective type. The articles of incorporation of a non-profit legal person shall establish the object and purposes of its activity.
Article 179. State registration of a legal person
(1) A legal person is considered established at the moment of its state registration unless the law provides otherwise.
(2) The legal person under public law is considered established on the date of entry into force of the act ordering its establishment, unless it provides for another date.
(3) A legal person is subject to state registration in the manner provided by law. The state registration data shall be entered in the advertising register provided by law, which shall be accessible to any person.
(4) Violation of the procedure for establishing a legal person as provided for by law or the fact that the act of establishment is not in accordance with the law shall entail refusal of state registration of the legal person. Refusal of registration on the grounds of inexpediency of establishment of the legal person shall not be allowed.
(5) A legal person is subject to state re-registration only in cases provided for by law.
(6) If an action was taken on behalf of a legal person in the process of being established before it acquired legal personality and if the legal person does not subsequently assume the obligations resulting from the actions in question or if the legal person is no longer established, the persons who acted are jointly and severally liable for the actions in question, in the absence of a contrary contractual clause.
Article 180. Advertising registers regarding
legal persons
(1) Until the fact has been registered in the publicity register provided for by law, the person in whose interest the fact should have been registered cannot oppose it to third parties, except in the case where he proves that the third party knew or should have known the fact.
(2) If the fact is registered in the public register provided for by law, the third party must acknowledge it in relation to himself. This provision does not apply to juridical acts committed within 15 days from the moment the fact was made public, to the extent that the third party demonstrates that he did not know and should not have known about this fact.
(3) If the fact that should have been recorded was recorded incorrectly or communicated to a third party incorrectly, the third party may oppose the fact made public to the person in whose interest it should have been recorded, except in the case where the third party knew about the untruthfulness.
Article 181. Duration of the legal person
(1) The legal person is perpetual unless the law or the constituent documents provide otherwise.
(2) Upon the expiration of the term established for the existence of the legal person, it shall be dissolved if the constituent documents are not amended by that time.
Article 182. Name of the legal person
(1) The legal person participates in legal relations only under its own name, established by the articles of incorporation and registered in the appropriate manner.
(2) The name of the legal person must include, in Romanian, the legal form of organization.
(3) A legal person may not be registered if its name coincides with the name of another legal person already registered.
(4) It is prohibited to use in the name of the legal person phrases that contravene legal provisions or moral norms, as well as proper names, if these do not coincide with the names of the members at the establishment of the organization and if there is no agreement in this regard of the respective person or his heirs regarding the use of the name.
(5) The legal person may not use in its name words or abbreviations that would be misleading regarding its form.
(6) The legal person whose name is registered has the right to use it. The person who uses the name of another legal person is obliged, at its request, to cease using the name and to compensate it for the damage.
(7) The legal person is obliged to publish a notice in the “Official Gazette of the Republic of Moldova” about the change of name, under penalty of payment of compensation.
(8) The document issued by the legal person must mention the name, state registration number, tax code and headquarters, under penalty of payment of compensation.
Article 183. Registered office of a legal person
(1) The legal person has a registered office, indicated in the articles of incorporation.
(2) The establishment and change of the registered office are enforceable against third parties from the moment of state registration.
(3) The postal address of the legal person is the one at the registered office. The legal person may also have other addresses for correspondence.
(4) All documents and letters received at the headquarters are considered received by the legal person.
(5) The legal person is obliged to publish a notice in the “Official Gazette of the Republic of Moldova” about the change of the registered office under penalty of payment of compensation.
Article 184. Liability of legal persons
(1) A legal person is liable for its obligations with all its property.
(2) The member of the legal person is not liable for the obligations of the legal person, and the legal person is not liable for the obligations of the member, with the exceptions established by law or the act of incorporation.
§ 2. Common provisions on the functioning
private law legal persons
Article 185. Obligation to respect limits
powers
The administrator must act in accordance with the provisions of the act of incorporation of the legal person and the decisions of the bodies to which it is subordinated.
Article 186. Obligation to pursue the purpose
legal person
(1) The administrator must act by choosing the path he considers, in good faith, to be the best to achieve the goals of the legal person, taking into account in particular:
a) the likely long-term consequences of the way they act;
b) the interests of the employees of the legal person;
c) the need to encourage the legal person’s relations with suppliers, customers and other co-contractors;
d) the impact of the legal person’s activity on the community and the environment;
e) the desire to maintain a reputation that the legal person operates according to high standards in its field of activity;
f) the need to treat the members of the legal person fairly.
(2) However, in cases expressly provided for by law, the administrator must act to protect the interests of the creditors of the legal person.
Article 187. Obligation to act competently
and diligence
(1) The administrator must act according to the level of competence and diligence appropriate to the knowledge, competence and experience he possesses, as well as those that can be expected from a good administrator.
(2) The administrator shall be deemed not to be in breach of the obligation set out in paragraph (1) if, at the time he acts, he is reasonably entitled to consider that he is acting in the interest of the legal person and that he possesses adequate information.
Article 188. Obligation to avoid conflict of interest
(1) The administrator must avoid the situation in which he has or may have a direct or indirect interest that conflicts or could conflict with the interests of the legal person. The administrator must inform the competent body about this situation.
(2) The administrator in conflict of interest must refrain from negotiating and taking the decision of the legal person regarding the juridical act or operation to which the conflict refers.
(3) The administrator must refrain from using for his own benefit or that of his affiliated persons the property of the legal person, the name of the legal person or his capacity as administrator of the legal person in cases where he carries out his own activities or through his affiliated persons.
(4) The administrator must refrain from exploiting for his own benefit or that of his affiliated persons the opportunities to make investments or carry out activities that he became aware of during the exercise of his function if the investment or activity was proposed to the legal person or the legal person had an economic interest or other interest in it in accordance with the intended purpose, except in the case when the legal person refused the opportunity without the administrator’s influence.
(5) The administrator must refrain from engaging, in his own name or through his affiliated persons, in activities identical, similar or complementary to those carried out by the legal person (non-compete obligation).
(6) The obligations provided for in this article shall not apply if the administrator has obtained the appropriate approval from the competent body of the legal person.
Article 189. Obligation not to accept benefits
from third parties
(1) The administrator must refuse any benefit from a third party granted in consideration of the fact that he is an administrator or that he commits an action or inaction in his capacity as an administrator.
(2) The obligation provided for in paragraph (1) shall not be considered violated if the acceptance of the benefit cannot reasonably lead to the emergence of a conflict of interest.
Article 190. Obligation to declare interest
in a juridical act or operation
which is proposed to the legal person
(1) If the administrator of the legal person has a direct or indirect interest in a juridical act or an operation that is proposed to the legal person, he must declare in advance the nature and extent of that interest in the manner determined in the act of incorporation and in the law.
(2) In particular, the administrator must communicate the direct or indirect interest in a third party carrying out an activity identical, similar or complementary to that of the legal person.
(3) The administrator is not liable for failure to declare an interest if he did not know and should not have reasonably known of the existence of the interest or of the circumstance that it is proposed to conclude that juridical act or that operation.
(4) The administrator is not obliged to declare the interest:
a) which, reasonably, cannot lead to the emergence of a conflict of interest;
b) if the competent body of the legal person already knows the existence of the interest.
Article 191. Obligation of confidentiality
(1) The administrator must maintain the confidentiality of information held by virtue of the exercise of the function, the disclosure of which could prejudice the interests of the legal person or would incur the liability of the legal person towards third parties.
(2) The obligation provided for in paragraph (1) shall not apply:
a) if a legal provision allows the communication or disclosure of information to third parties;
b) if the information must be transmitted, pursuant to the law, to an authority and the transmission is carried out under the conditions provided for by law;
c) if the information became known to the public in a way other than through the administrator’s breach of the obligation provided for in paragraph (1).
Article 192. Derogations, limitations and exclusions from
obligations and liability of the administrator
(1) Any provision in the deed of incorporation, other deed of the legal person or contract with the administrator through which:
a) the obligations of the administrator provided by law are limited or excluded;
b) the liability that the administrator bears under the law towards the legal person is limited or excluded in advance.
(2) Provided that there is sufficient information about the respective case and compliance with the rules on conflict of interest, the body competent to appoint the administrator or another competent body according to the act of incorporation may decide:
a) to approve exemptions from the obligations of the administrator towards the legal person, for each individual case;
b) to release the administrator from liability, to conclude a transaction contract or to waive the action for violations of obligations towards the legal person, committed by the administrator, for each individual case.
(3) The decision of the competent body of the legal person regarding the issues provided for in paragraph (2) may not be invoked against the creditors of the legal person or third parties directly harmed by the administrator, even if the administrator acted on the basis of the decision of the competent body of the legal person.
Article 193. Conditions for the action for liability
of the administrator
(1) In the event of a breach of one of the obligations provided for in art. 185-192, the legal person may file an action against the administrator for cessation of the breach and payment of compensation in accordance with art. 19.
(2) If the legal person contracts insurance that covers the administrator’s risks related to the exercise of the function, the insurance must provide for a deductible of at least 10% of the damage.
(3) The approval of the financial statements or annual reports does not affect the right of the legal person to hold the administrator liable.
(4) The administrator has the burden of proving that he acted with competence and diligence.
Article 194. Liability of the administrator
for the actions of others
(1) If the legal person has several administrators, all administrators are jointly and severally liable, except for the administrator who demonstrates that:
a) did not participate in the approval or commission of the violation;
b) did not know and was not required to know of the existence of the infringement or, if he knew of its existence, took all necessary measures to prevent the damage or, at least, expressly opposed the infringement and communicated this fact to the competent body of the legal person.
(2) The administrator is liable to the legal person for the damage caused by the acts performed by the employees when the damage would not have occurred if he had exercised the supervision imposed by the obligations of his position.
(3) The administrator is jointly and severally liable with his immediate predecessor if, having knowledge of the violations committed by the latter, he fails to communicate them to the censor or, as the case may be, to the internal auditor.
Article 195. Member’s right to submit
oblique action
(1) The member of the legal person has the right to file an action to hold the administrator liable against the legal person if the legal person has not filed it within 3 months from the date when the member submitted to the legal person a request to hold the administrator liable.
(2) In case of total or partial admission of the action, the legal person is obliged to reimburse the complaining member for all necessary and reasonable expenses incurred, to the extent that they were not reimbursed from the administrator’s account by the court decision.
Article 196. Direct action against the administrator
and/or to the legal person
The provisions of Articles 192-195 do not affect the legal provisions according to which a member of the legal person or a third party may file an action against the administrator and/or the legal person in the event that damage has been caused to him.
Article 197. The de facto administrator and the administrator
apparent
(1) A person who is not indicated in the advertising register provided for by law as an administrator of a legal person is considered to be the de facto administrator of that legal person for the period in which he gives instructions to the administrator, and the latter complies with them.
(2) The person indicated in the advertising register provided for by law as administrator of a legal person is considered an apparent administrator of that legal person for the period in which:
a) her appointment in this capacity may be reasonably contested;
b) although her mandate has expired or otherwise ceased, her capacity as administrator has not been removed from the publicity register provided for by law.
(3) The de facto administrator shall have, in relation to the legal person, the obligations provided for in Articles 186-189 and 191, which shall apply accordingly.
(4) The apparent administrator bears the obligations provided for in Articles 185-192 towards the legal person.
(5) The de facto administrator and the apparent administrator are liable for the breach of their obligations in the same way as the administrator of the legal person.
Article 198. Former administrator
(1) The termination of the capacity of administrator, for any reason, does not affect the person’s liability for breach of obligations during the period in which he was an administrator.
(2) The person who ceases to be an administrator continues to be held by:
a) the obligation provided for in art. 188 para. (3) and (4) regarding the use of information or opportunities of which he became aware when he was a director;
b) the non-competition obligation provided for in art. 188 paragraph (5), to the extent that it was assumed by the administrator in writing and does not exceed a period of 3 years from the date on which he ceases to be an administrator;
c) the obligation provided for in art. 189, if the benefit is granted for his actions or inactions committed when he was a director;
d) the confidentiality obligation provided for in art. 191 to the extent that it has been assumed by the administrator in writing;
e) other obligations resulting from the contract between the administrator and the legal person.
(3) The legal provisions regarding the liability of the administrator shall apply accordingly in the event of a violation by the former administrator of the obligations provided for in paragraph (2).
Article 199. Administrator of a legal person
(1) If it has been appointed as administrator, the legal person shall appoint a single natural person who will permanently exercise its functions.
(2) The designated natural person must meet the legal requirements for administrators, having the same obligations and being jointly and severally liable with the legal person designated as administrator.
(3) The removal of the natural person appointed by the legal person as administrator shall not take effect until his/her replacement is appointed.
(4) The appointment and revocation of the designated representative of the legal person administrator shall be subject to the publicity formalities established for the administrator, which shall be fulfilled pursuant to the appointment or, as the case may be, revocation decision issued by the legal person administrator.
Article 200. Removal from office of the administrator
(1) The administrator may be dismissed from office by decision of the competent body of the legal person according to the grounds provided by law or contract, as well as without invoking a reason, without a notice period.
(2) If there is a legal employment relationship between the administrator and the legal person, dismissal from office according to paragraph (1) shall entail the termination of the individual employment contract from the same date. The provisions of labor law may not be invoked to contest the decision to dismiss the administrator.
(3) If the dismissal of the administrator, for which a ground provided by law or contract was invoked, does not fall within that ground, the administrator may request the court to find that he was dismissed from office without invoking a reason, but may not contest, for this reason, the decision to dismiss the administrator from office.
(4) The provisions of paragraphs (1)-(3) do not affect the administrator’s right to severance pay provided for by law. The contract may provide for a higher severance pay, as well as additional cases in which the severance pay is paid.
(5) At the request of the legal person, its member or the insolvency administrator/liquidator, the court shall reduce the amount of the severance pay provided for in the contract if it finds that it is manifestly disproportionate, taking into account all relevant circumstances, in particular:
a) the circumstances existing at the date of stipulation of the severance pay clause, in particular the special qualities required by law or by a regulatory or supervisory authority from the administrator and the particularities of the legal person’s field of activity;
b) the performance recorded by the administrator during his legal relationship with the legal person and the financial incentives granted to the administrator;
c) the size of the property of the legal person.
(6) It is presumed that the compensation exceeding the fixed component of the administrator’s remuneration for 2 years is manifestly disproportionate.
(7) Severance pay shall not be paid to the administrator if he is dismissed from office for failure to meet the performance indicators set out in the contract concluded with the legal person. Any contrary clause shall be deemed absolutely null and void.
(8) The legal person may request the refund of the variable component of the remuneration paid to the administrator to the extent that it was based on financial statements in which errors were subsequently found.
Article 201. Powers granted by
supreme or supervisory body
(1) The supreme body of a legal person or its supervisory body (the board) may, by decision, empower a third party (with or without the right of delegation) to act on behalf of the legal person in order to enforce the decision of this body. In this case, the empowered third party shall have powers without the need for the administrator to grant powers. The minutes containing the decision on empowerment shall be equivalent to a power of attorney on behalf of that legal person.
(2) The provisions of paragraph (1) shall apply in particular in the event that the administrator is in conflict of interest with respect to the adopted decision, such as that of:
a) conclusion or amendment of the contract between the administrator and the legal person;
b) conducting an internal investigation, suspending the administrator from office or applying other similar measures;
c) dismissal from office;
d) liability towards the legal person;
e) completion of advertising formalities in order to make changes regarding the legal person in the advertising register provided for by law.
Article 202. Nullity of the decision of the body of the person
legally
(1) The legal provisions regarding the nullity of a juridical act shall apply accordingly to the nullity of the decision of the general meeting of members or of the sole member of the legal person, of the collegiate supervisory body or of the collegiate executive body of the legal person (decision of the body of the legal person), subject to the legal provisions applicable to certain legal persons and, in addition, to the provisions of this article.
(2) The decision of the body of the legal person is subject to relative nullity:
a) if an essential violation of the rules regarding the convening or holding of the meeting at which the decision was adopted has been committed. If the body ensuring the convening or holding of the meeting intentionally violates the rules regarding the convening or, as the case may be, holding of the meeting, the decision thus adopted is subject to relative nullity even when the violation is non-essential;
b) if the representative of the participant in the meeting was not duly empowered, unless the powers of attorney were subsequently confirmed in accordance with art. 370;
c) if the rights of a participant were violated during the meeting;
d) if there has been a material violation of the rules regarding the preparation of the minutes of the meeting, including failure to prepare them in writing. However, the nullity is removed by preparing the minutes of the meeting before the next meeting of the same body;
e) if it does not meet other conditions provided for by the mandatory provisions of the law or of the act of incorporation of the legal person, the non-compliance of which is not sanctioned by absolute nullity.
(3) The relative nullity of the decision of the body of the legal person shall be deemed to have been removed if the decision has been confirmed by a subsequent valid decision of the competent body of the legal person until the court decision declaring the relative nullity becomes final.
(4) The relative nullity of the decision of the body of the legal person may be invoked by:
1) the voting member of the body of the legal person that adopted the decision:
a) who did not participate in the meeting or, if he participated, voted against the decision; or
b) who voted for the adoption of the decision or abstained from voting, if an error was made in the qualification or counting of the vote expressed by him;
2) the legal person whose body adopted the decision;
3) a member of the legal person if he challenges the decision of a body other than the general meeting of members.
(5) The right to an action for the declaration of relative nullity of the decision of the body of the legal person shall be prescribed within 6 months.
(6) The decision of the body of the legal person is subject to absolute nullity:
a) if it was adopted on a matter that was not included in the agenda, unless all voting members of the respective body attended the meeting and voted unanimously to include the matter in question on the agenda;
b) if it was adopted at a time when the meeting was not deliberative;
c) if it refers to a matter that is not within the competence of that body;
d) if it is contrary to public order or good morals.
(7) The absolute or relative nullity of the decision of the body of the legal person does not affect the juridical act concluded by the legal person, based on that decision, with a third party who, at the date of conclusion of the juridical act, did not know and should not reasonably have known the ground for nullity.
(8) Under the law, the action for absolute or relative nullity of the decision of the body of the legal person shall be noted in the public register in which the legal person is registered. The third party may not invoke, from the date of the notation, ignorance of the ground for nullity on which the noted action is based.
(9) The inadmissibility of the action for absolute or relative nullity or its lateness does not prevent the person whose right was violated by the decision of the body of the legal person from requesting compensation for the damage in accordance with the applicable legal provisions.
Article 203. Affiliated persons
(1) For the purposes of this Code, the following persons are affiliated with the legal person:
a) members of the council, members of the executive body, members of the censors’ committee, persons with responsible positions of the management organization (trustee), the head of the auditor exercising the functions of the censors’ committee, other persons with responsible positions, as appropriate (branch managers, chief accountant, etc.);
b) the spouse, relatives and in-laws up to the second degree inclusive of the individuals specified in letter a);
c) the natural or legal person who, individually or together with the persons specified in letter a)
a) and b), holds control over the respective legal person;
d) the commercial company in which the respective legal person, individually or together with the persons specified in letters a) and b), holds control;
e) the legal person together with the persons specified in letter a) or the natural person acting in the name or on behalf of the respective legal person;
f) the legal person together with its affiliated persons specified in letter a) or the natural person in the name or on whose account the respective legal person acts;
g) the legal person together with the persons specified in letter a) or the natural person acting jointly with the respective legal person;
h) a legal person which, together with the given legal person, is under the control of a third party.
(2) For the purposes of this Code, the following persons are affiliated with the natural person:
a) the spouse, relatives and in-laws up to the second degree inclusive of the respective natural person;
b) the commercial company in whose capital the respective natural person, individually or together with the persons specified in letter a), holds control;
c) the legal person who, together with the persons specified in paragraph (1) letter a), or the natural person who acts in the name or on behalf of the respective natural person;
d) the legal or natural person in whose name or on whose account the respective natural person acts.
(3) Control exists where the natural or legal person meets at least one of the following conditions:
a) holds, alone or together with persons acting in concert, the majority of the voting shares of a legal person;
b) holds, alone or together with persons acting in concert, a number of voting shares that allow it to appoint or revoke the majority of the members of the supervisory body (council) of the legal person, the executive body or the majority of the members of the executive body and/or the censor or the majority of the members of the censors’ committee;
c) exercises a dominant influence over a legal person of which he is a member, pursuant to a contract concluded with the legal person in question or a clause in the deed of incorporation or the statute of the legal person;
d) is a member of a legal person and controls alone, pursuant to an agreement concluded with other members of the legal person in question, the majority of the voting rights.
(4) Control shall be presumed when the majority of the members of the supervisory body (board) have been appointed by a vote of a member of the legal person during 2 consecutive financial years. That member shall be deemed to have voted for such appointments if, during the financial year in question, he held directly or indirectly more than 40% of the voting rights and if there is no other member who holds directly or indirectly a larger share of the total voting rights.
(5) For the calculation of the voting rights provided for in this article, the subscription and purchase rights of shares in the capital that grant voting rights that can be exercised at the moment shall also be taken into account.
(6) The voting rights granted by the participations held by the controlled legal person itself or by the legal person it controls shall not be taken into account when determining the voting rights that the controlling legal person holds in the controlled legal person.
(7) The provisions of this article shall apply only if special provisions have not established, for certain categories of persons or regulatory areas, different criteria for determining affiliation and control.
§ 3. Reorganization and liquidation of a legal person
Article 204. Reorganization of a legal person
(1) The legal person is reorganized through merger (merger and absorption), dismemberment (division and separation) or transformation.
(2) The reorganization decision is taken by each legal person separately, under the conditions established for amending the articles of incorporation.
(3) In cases provided for by law, the reorganization of a legal person through division or separation shall be carried out on the basis of a court decision.
(4) If a new legal person is established through merger or dismemberment, it shall be constituted under the conditions provided by law for the form of the respective legal person.
(5) Reorganization takes effect only after the date of state registration of the new legal persons, except for reorganization by absorption, which takes effect on the date of registration of the amendments in the articles of incorporation of the absorbing legal person.
(6) The merger or dismemberment may also be carried out between legal persons of different forms, provided that all participating legal persons are registered in the same advertising register provided for by law.
(7) The merger or dismemberment may be carried out even if the legal persons to be dissolved are in liquidation, provided that they have not started the distribution of property in the liquidation procedure.
Article 205. Succession by law in the case of
reorganization of legal persons
(1) In the event of a merger of legal persons, the rights and obligations of each of them shall be transferred to the new legal person, in accordance with the transfer deed.
(2) In the event of the absorption of one legal person by another, the rights and obligations of the absorbed legal person shall pass to the absorbing legal person in accordance with the act of transmission.
(3) In the event of division of a legal person, its rights and obligations shall be transferred to the new legal persons in accordance with the distribution balance sheet.
(4) In the event of separation, part of the rights and obligations of the reorganized legal person shall pass to each of the legal persons participating in the reorganization (existing or coming into existence), in accordance with the distribution balance sheet.
(5) In the event of reorganization of the legal person through transformation, the rights and obligations of the reorganized legal person shall be transferred to the new legal person in accordance with the act of transmission.
(6) The legal person that has acquired, as a result of the reorganization, a right subject to publicity formalities is obliged to complete the publicity formalities regarding the acquired right without undue delay, but not later than 6 months from the state registration of the reorganization. Third parties affected by the delay in completing the publicity formalities may initiate the completion of the formalities indirectly, as well as may request the legal person and its administrator to compensate for the damage caused thereby.
Article 206. The act of transmission and the distribution balance sheet
(1) The deed of transfer and the distribution balance sheet must contain provisions regarding the succession of the entire property of the reorganized legal person, regarding all rights and obligations towards all its debtors and creditors, including obligations contested by the parties.
(2) The act of transmission and the distribution balance sheet shall be approved by the general meeting of members of the legal person or by the body of the legal person empowered with such powers by law or by the act of incorporation, which decided on the reorganization of the legal person, and shall be submitted, together with the acts of incorporation of the created legal persons, for their state registration or for the introduction of amendments to the acts of incorporation of existing legal persons.
Article 207. Guaranteeing the rights of creditors
legal person in the case
its reorganization
(1) Within 15 days from the adoption of the reorganization decision, the executive body of the legal person participating in the reorganization is obliged to inform in writing all known creditors and to publish in the “Official Gazette of the Republic of Moldova” and, free of charge, on the official website of the state registration body a notice regarding the reorganization.
(2) The creditors may, within one month of the publication of the notice, request guarantees from the legal person being reorganized to the extent that they cannot demand satisfaction of their claims. The right to guarantees belongs to the creditors only if they prove that the reorganization will jeopardize the satisfaction of their claims.
(3) Creditors are entitled to inform the state registration body regarding the claims against the debtor undergoing reorganization.
(4) Legal persons participating in the reorganization shall be jointly and severally liable for the obligations arising prior to their reorganization if it is not possible to determine the successor from the transfer deed and the distribution balance sheet.
(5) If a creditor has not obtained the realization of his claim from the legal person to whom the correlative obligation is distributed through dismemberment, all legal persons that have acquired a part of the property of the dismembered legal person are liable for the obligation in question up to the value of the net property that were distributed to them through dismemberment, with the exception of the legal person to whom the respective obligation was distributed, which is liable without limit.
(6) The members of the executive body of the legal person participating in the reorganization are jointly and severally liable, for a period of 3 years from the date of the reorganization, for the damage caused by the reorganization to the creditors of the reorganized legal persons.
Article 208. Merger of legal persons
(1) The merger is carried out by merger or absorption.
(2) The merger has the effect of dissolving without going into liquidation the legal persons participating in the merger and transferring their rights and obligations in full to the legal person being established.
(3) Absorption has the effect of dissolving the absorbed legal persons without going into liquidation and transferring their rights and obligations in full to the absorbing legal person.
(4) In cases established by law, the merger may be conditioned by the permission of the competent state body.
(5) If the merger involves for-profit legal persons, the members of the legal persons being dissolved shall be allocated shares in the legal person being established or in the absorbing legal person and, if provided for, shall be paid a dividend, which shall not exceed 10% of the nominal value or, in the absence of a nominal value, of the accounting value of the share thus allocated.
Article 209. Draft merger agreement
(1) For the purpose of the merger, the executive body of the legal person shall prepare the draft merger agreement.
(2) The draft merger agreement must indicate:
a) the form (type) of the merger;
b) the name and registered office of each legal person participating in the merger;
c) the justification and conditions of the merger;
d) the property that are transferred to the beneficiary legal person;
e) if legal persons with a profit-making purpose participate in the merger:
– the exchange ratio of the participations and, where applicable, the size of the stake;
– the conditions for allocating shares to the absorbing or newly created legal person;
– the date from which the holding of the new shares gives the members the right to participate in the sharing of the benefits of the absorbing or newly created legal person, as well as, if any, any special conditions affecting this right;
– the rights granted by the absorbing legal person to the holders of participations conferring special rights and to the holders of securities other than shares, or the measures proposed in relation to them;
f) if any, any special advantage granted to experts hired to prepare the merger report for the benefit of the members of the merging legal person, as well as to members of the executive, supervisory and control bodies of the merging legal persons;
g) the date of the financial statements of the participating legal persons, which were used to establish the conditions of the merger;
h) the date or the method of determining the date from which the juridical acts and operations of the legal person being dissolved will be considered, from an accounting point of view, as belonging to the absorbing legal person or to one or other of the participating legal persons.
(3) If legal persons merge by merger, the draft merger agreement must also indicate the name, headquarters and executive body of the legal person being established. The draft incorporation act of the legal person being established shall be annexed to the draft merger agreement.
(4) The draft merger agreement shall be drawn up in writing.
(5) If the approved merger agreement is affected by a condition, it shall be terminated with retroactive effect if the condition has not been fulfilled within one year from the date of approval. The agreement may provide for a shorter term or a prevention term.
Article 210. Merger decision
(1) The merger agreement shall take effect only if it is approved by the general meeting of members of each legal person participating in the merger.
(2) The merger decision is adopted by 2/3 of the total number of votes represented at the meeting unless a larger majority is provided for by law or the articles of association.
Article 211. Application for registration of merger
(1) After the expiry of one month from the publication of the notice on the merger, the executive body of the absorbed legal person or of the legal person participating in the merger shall submit, to the body that carried out its state registration, an application requesting the registration of the merger. The application shall be accompanied by:
a) the legalized copy of the merger agreement;
b) the minutes of the meeting at which the merger decision of each participating legal person was adopted;
c) proof of providing guarantees accepted by creditors or of payment of debts;
d) merger authorization, as appropriate.
(2) After the expiry of the term provided for in paragraph (1), the executive body of the absorbing legal person or of the merging legal persons shall submit an application for registration to the state body where the absorbing legal person is registered or where the new legal person is to be registered. The documents indicated in paragraph (1) shall be attached to the application. The legal person being established shall also attach the documents necessary for the registration of the legal person of the respective type.
Article 212. Registration of merger
(1) The merger shall be registered with the body that carried out the state registration of the absorbing legal person or that is to register the new legal person.
(2) The body that carried out the state registration of the absorbing legal person or the new legal person shall inform the body where the absorbed legal person or the merged legal persons are registered about the registration of the merger.
(3) The body that performed the state registration of the absorbed legal person or the merged legal persons shall enter in the publicity register provided by law the date on which the absorption or merger took place and shall send for safekeeping to the body that registered the merger all the documents of the dissolved legal persons.
(4) After the registration carried out according to paragraph (1), the absorbed or merged legal persons are considered dissolved and are removed from the advertising register provided for by law.
Article 213. Effects of merger
(1) From the date of registration of the merger, the property of the absorbed legal person or of the merging legal persons shall be transferred to the absorbing legal person or to the new legal person.
(2) After the registration of the merger, the absorbing legal person or the new legal person shall include in its balance sheet the property and liabilities of the absorbed legal person or the merged legal persons, and the property shall be registered as property of the absorbing legal person or the new legal person.
Article 214. Dismemberment of a legal person
(1) The dissolution of a legal person is done through division or separation.
(2) The division of a legal person has the effect of ceasing its existence and transferring its rights and obligations to two or more legal persons, which come into existence.
(3) Separation has the effect of separating a part of the property of the legal person, which does not cease to exist, and transmitting it to one or more existing or newly established legal persons.
(4) If legal persons with a profit-making purpose participate in the dismemberment, the members of the legal person subject to dismemberment shall be distributed shares in the legal person to which a part of the property of the legal person subject to dismemberment shall pass and, if provided, they shall be paid a dividend, which may not exceed 10% of the nominal value or, in the absence of a nominal value, of the accounting value of the participation thus distributed.
Article 215. Dismantling project
(1) The project for the dismemberment of the legal person is developed by the executive body.
(2) The dismemberment project must indicate:
a) the form (type) of dismemberment;
b) the name and headquarters of the legal person being dissolved;
c) the name and headquarters of each legal person that is established following the dismemberment or to which a part of the property is given;
d) the part of the patrimony that is transmitted;
e) the number of members who transfer to the legal person being established;
f) if legal persons with a profit-making purpose participate in the dismantling:
– the exchange ratio of the participations and, where applicable, the size of the stake;
– the conditions for allocating shares to the newly created legal person or to which part of the property is transferred;
– the date from which the holding of the new shares gives the members the right to participate in the distribution of the benefits of the legal person to which part of the property passes, as well as, if any, any special conditions affecting this right;
– the rights granted by the newly created legal person or to which part of the property is transferred to the holders of participations conferring special rights and to the holders of securities other than shares, or the measures proposed in relation to them;
g) if any, any special advantage granted to experts hired to draw up the report on the dismemberment for the benefit of the members of the legal person being dismembered, as well as to the members of the executive, supervisory and control bodies of the legal persons being dismembered;
h) the value ratio of the shares;
i) the date of preparation of the distribution balance sheet;
j) the consequences of the dismemberment for employees;
k) the date of the financial statements of the participating legal persons, which were used to establish the conditions of the dismemberment;
l) the date or the method of determining the date from which the juridical acts and operations of the legal person being dissolved will be considered, from an accounting point of view, as belonging to one or another of the participating legal persons.
(3) The dismemberment project shall be drawn up in writing.
(4) The draft deed of incorporation of the new legal person shall be annexed to the dismemberment project, as appropriate.
Article 216. Approval of the dismemberment project
(1) The dissolution project shall be approved by the general meeting of members with 2/3 of the total number of votes represented at the meeting unless the law or the act of incorporation provides for a higher majority.
(2) The general meeting of members, with the majority indicated in paragraph (1), approves the deed of incorporation of the new legal person and designates its executive body.
Article 217. Application for registration of dismemberment
(1) The executive body of the legal person being dissolved shall, after the expiry of one month from the publication of the notice on dissolution, submit an application for registration of dissolution to the body that carried out its state registration and another to the body that will carry out the state registration of the legal person being formed or where the legal person to which a part of the property is transferred is registered. The application shall be accompanied by the dissolution project, signed by the representatives of the participating legal persons, and proof of the provision of guarantees, accepted by the creditors, or of the payment of debts.
(2) The application submitted to the body that will perform the state registration of the legal person being established shall also be accompanied by the documents necessary for the registration of the legal person of the respective type.
Article 218. Registration of dismemberment
(1) The registration of the dismemberment shall be made at the body that carried out the state registration of the dismembered legal person. The registration of the dismemberment shall be made only after the registration of the new legal persons or the amendment of the act of incorporation of the legal person to which a part of the property is transferred.
(2) The body that is to carry out the state registration of the new legal person or that has registered the legal person receiving a part of the property shall inform the body where the dismembered legal person is registered about the registration of the new legal person or about the amendment of the constituent act of the legal person receiving a part of the property.
(3) The body that carried out the state registration of the legal person that has been dismembered shall register the dismemberment and, where appropriate, shall strike off the legal person that has been divided and shall inform the body where the new legal person is registered or the body where the legal person that receives a part of the property is registered about this. The latter shall enter the date on which the dismemberment took place.
(4) Dismemberment takes effect from the moment of its state registration with the body where the dismembered legal person is registered.
(5) After the registration carried out according to paragraph (1), the divided legal person shall be considered dissolved and shall be removed from the advertising register provided for by law.
Article 219. Effects of dismemberment
(1) From the date of registration of the dismemberment, the property of the dismembered legal person or part of it shall pass to the established or existing legal persons.
(2) The new or existing legal person receives, by deed of transfer, and includes in its balance sheet the property received and, as the case may be, registers the property subject to registration.
Article 220. Nullity of merger or dismemberment
(1) The nullity of a merger or dismemberment may be declared only by court decision.
(2) From the date of state registration according to art. 212 or, as the case may be, according to art. 218, the merger or dismemberment may be declared null and void only if the decision of one of the general meetings that voted on the merger or dismemberment project is struck by absolute or relative nullity.
(3) The action for the declaration or finding of nullity of the merger or dismemberment may be filed, under penalty of forfeiture, only within 6 months from the date on which the merger or dismemberment was registered in accordance with art. 212 or, as the case may be, in accordance with art. 218. The action may not be admitted if the violation has been rectified.
(4) If the violation that constitutes grounds for the nullity of a merger or division can be rectified, the competent court shall grant the legal persons involved a deadline for rectifying it.
(5) The court shall send a copy of the final court decision establishing or declaring the nullity of a merger or dismemberment to the state registration bodies at the headquarters of the legal persons involved in the respective merger or dismemberment.
(6) The final court decision establishing or declaring the nullity of a merger or dismemberment does not in itself affect the validity of the obligations arising in the interest of or for the benefit of the absorbing legal person, the newly created legal person or the legal person receiving part of the property, incurred after the merger or dismemberment was registered in accordance with art. 212 or, as the case may be, in accordance with art. 218 and before the final court decision establishing or declaring the nullity is published in accordance with the law.
(7) In the event of the declaration of nullity of a merger, the legal persons participating in the respective merger shall be jointly and severally liable for the obligations of the absorbing or newly created legal person, incurred during the period referred to in paragraph (6).
(8) In the event of a dissolution being declared null and void, each of the newly created legal persons or those that have received a share of the property shall be liable for its own obligations incurred during the period referred to in paragraph (6). The dissolved legal person shall also be liable for these obligations within the limit of the share of net property transferred to the newly created legal person or the legal person that has received a share of the property that have assumed these obligations.
Article 221. Liability of the executive body
and the supervisory body
The members of the executive body and, where applicable, of the supervisory body are jointly and severally liable towards the members of the legal person participating in the merger or dismemberment for failure to fulfill their obligations in preparing and carrying out the merger or, where applicable, dismemberment procedure.
Article 222. Transformation of a legal person
(1) The transformation of a legal person has the effect of changing its legal form of organization by amending the articles of incorporation under the terms of the law.
(2) The transformation of a legal person must also meet the conditions provided by law for the legal form of organization into which it is transformed.
Article 223. Dissolution of a legal person
(1) The legal person shall be dissolved on the basis of:
a) the expiry of the term established for its duration;
b) the achievement of the purpose for which it was established or the impossibility of achieving it;
c) the decision of its competent body;
d) court decisions in the cases provided for in art. 224;
e) insolvency or termination of the insolvency process due to insufficient debtor property;
f) the fact that the non-profit legal person or cooperative no longer has any members;
g) other causes provided by law or the deed of incorporation.
(2) The dissolution of a legal person has the effect of opening the liquidation procedure, except in cases of merger and dismemberment which have the effect of dissolving, without liquidation, the legal person that ceases to exist and the universal transmission of its property, in the state in which it was at the date of the merger or dismemberment, to the beneficiary legal persons.
(3) The legal person continues to exist after dissolution to the extent necessary for the liquidation of the property.
(4) From the moment of dissolution, the administrator may no longer undertake new operations, otherwise he shall be personally and jointly liable for the operations he has undertaken. This provision shall apply from the day of expiry of the term established for the duration of the company or from the date on which the general meeting of members or the court decided on the dissolution.
(5) The competent body of the legal person may reverse the decision on liquidation or reorganization if the property are not distributed among its members or are not transferred to other persons.
(6) On the date of dissolution of the legal person, its administrator becomes the liquidator if the competent body or the court does not appoint another person as liquidator.
Article 224. Dissolution of a legal person by
court
(1) The court shall dissolve the legal person if:
a) its constitution is flawed;
b) the deed of incorporation does not comply with the provisions of the law;
c) does not fall within the legal provisions regarding its legal form of organization;
d) its activity is contrary to public order;
e) has not submitted, within 12 months from the expiry of the deadlines established by law, accounting, fiscal and statistical reports;
f) its share capital is below the minimum mandatory size for more than 6 months;
g) there are other situations provided for by law.
(2) The court shall not dissolve the legal person if, within the term it grants, the person complies with the provisions of the law.
(3) The court may dissolve the legal person if it contravenes the prohibitions established by this code for its legal form of organization or if its activity seriously contravenes the act of incorporation.
(4) The dissolution of the legal person shall be decided at the request of the member or, in cases expressly provided for by law, at the request of other persons or authorities.
Article 225. Fiduciary administration
(1) The court examining the application for the dissolution of a legal person may, upon request, place its property under fiduciary administration. The decision shall specify the date of establishment of the fiduciary administration. The court shall appoint one or more fiduciary administrators and determine the limits of their powers and their remuneration.
(2) Unless the court orders otherwise, the bodies of the legal person may not issue decisions without the prior consent of the trustee, and the persons with the right to represent the legal person may not conclude juridical acts without his participation.
(3) The court may at any time modify or annul its decision establishing the fiduciary administration. It shall cease to be effective when the court decision on dissolution becomes final.
(4) The trustee shall notify the body that carried out the state registration of the legal person about the court decision and shall provide the information required of an administrator about himself.
(5) The juridical act concluded by the legal person prior to the registration of the fiduciary administration, without taking into account the limitation imposed by the fiduciary administration, is valid if the other party did not know and should not have known about the establishment of the fiduciary administration.
Article 226. Registration of dissolution
(1) If the legal person is dissolved on one of the grounds provided for in Article 223 paragraph (1) letters a)-c), f) and g), its executive body shall submit an application for dissolution to the body that carried out the state registration of the respective legal person. If the legal person is dissolved by decision of the general meeting of members, the minutes of the meeting at which this decision was adopted shall be attached to the application.
(2) In the case of dissolution by court decision, the court shall send a copy of the irrevocable decision to the body that carried out the state registration of the legal person being dissolved.
(3) The application for dissolution submitted by the executive body of the legal person and the court decision are grounds for registering the dissolution.
(4) From the date of registration of the dissolution, in the documents and information emanating from the legal person, the phrase “in liquidation” must be added to the name. Otherwise, the liquidator of the legal person shall be personally liable for the damage caused to third parties.
Article 227. Liquidator of a legal person
(1) Any adult natural person who is not subject to a judicial protection measure, has the citizenship of the Republic of Moldova and resides on its territory may be a liquidator. Additional conditions for the person of the liquidator may be established by law.
(2) The liquidator shall notify the body that carried out the state registration of the legal person of his/her appointment and shall provide the information required of an administrator. The liquidator shall attach the decision on his/her appointment as liquidator.
(3) The name, domicile, identity document number, personal state identification number (IDNP) of the liquidator shall be entered in the advertising register, and in the case of the appointment of a person other than the administrator as liquidator, the state registration body shall enter in the advertising register the mention regarding the termination of the administrator’s activity.
(4) The liquidator has the same powers, obligations and responsibilities as the administrator to the extent that these are compatible with the activity of liquidator.
(5) In the event of the appointment of several liquidators, they shall jointly represent the legal person unless the deed of incorporation or the decision by which they are appointed provides otherwise.
(6) Immediately after taking office, the liquidator, together with the administrator, shall draw up and sign the inventory and balance sheet in which he shall state the exact situation of the property and liabilities.
(7) The liquidator executes and completes current operations, evaluates, capitalizes and alienates the property of the dissolved company in any form provided by law, represents the dissolved company in courts of law, collects receivables, including those related to the insolvency of debtors, concludes transactions, dismisses and hires employees of the legal person, contracts, as necessary, specialists and experts, concludes juridical acts, performs any other actions to the extent necessary for liquidation.
(8) In the event of the appointment of a liquidator, the administrator shall be obliged to transmit to him, and the liquidator shall be obliged to receive the property, registers and documents of the legal person and to take steps to preserve them. The liquidator shall also be obliged to keep a register of all liquidation operations in the chronological order of their performance.
(9) The liquidator may be revoked at any time by the body or court that appointed him. Another liquidator shall be appointed by the same decision. The revoked liquidator shall submit to the successor liquidator a report on the activity he has carried out. If the successor is appointed by the court, the report shall be submitted to it.
(10) The liquidator’s remuneration is established by the body or court that appointed him, except in cases provided for by law.
Article 228. Informing creditors
After registering his/her appointment, the liquidator publishes in the “Official Gazette of the Republic of Moldova” and, free of charge, on the official website of the state registration body a notice about the liquidation of the legal person and, within 15 days, informs each known creditor about the liquidation and about the deadline for submitting claims.
Article 229. Submission deadline and method
of admission of claims
(1) The term for submitting claims is 2 months from the date of publication of the notice provided for in art. 228. The liquidation decision may provide for a longer term, but it shall not exceed 4 months.
(2) Applications for the admission of claims together with the supporting documents regarding the claims and the acts of establishing guarantees shall be submitted directly to the liquidator, at the address indicated by him.
(3) Creditors’ claims submitted after the expiry of the deadline established for their submission shall be enforced from the property of the legal person remaining after the enforcement of validated claims submitted within the established deadline.
(4) If the liquidator rejects the claim, the creditor has the right, under penalty of forfeiture, to file an action in court within 30 days from the date on which he was informed of the rejection of the claim.
Article 230. Liquidation balance sheet
(1) Within 15 days from the expiry of the deadline for submitting claims, the liquidator is obliged to draw up the provisional liquidation balance sheet, which shall reflect the balance sheet value and the market value of the inventoried property, including the claims submitted and validated by the liquidator, as well as those not recognized by the liquidator and/or which are pending in court.
(2) The valuation of the property included in the provisional liquidation balance sheet shall be carried out by the liquidator at the average market prices in the locality of their location. If the valuation of the property is difficult or the participant (associate, shareholder, member) or the creditor does not agree with the value of the property determined by the liquidator, the latter shall engage a business appraiser in the valuation. If, following the valuation, it is established that the request of the person who contested the value determined by the liquidator was justified, the valuation expenses shall be borne by the liquidator. If, by the date of approval of the provisional liquidation balance sheet, no party contests the market value established by the liquidator, the valuation shall be presumed to be correct and final.
(3) The provisional liquidation balance sheet reflects the claims submitted in a table specifying the basis, value and rank of the claims, specifying whether they are unsecured, guaranteed, conditional or non-expiring and indicating the name/designation of the creditor, the amount requested by the creditor and the amount accepted by the liquidator, as well as the disputed claims.
(4) The provisional liquidation balance sheet shall be presented, within 10 days from the date of preparation, to the participants (associates, shareholders, members) and known creditors and shall be approved within 30 days by the body or court that appointed the liquidator.
(5) If the provisional liquidation balance sheet shows a surplus of liabilities over property, the liquidator shall file an application to initiate insolvency proceedings. Initiating insolvency proceedings against a legal person shall constitute grounds for terminating the liquidation proceedings against it. The liquidator may continue the liquidation proceedings without initiating insolvency proceedings, with the consent of all validated creditors, provided that there are no applications pending before the courts to challenge the refusal to validate the claims or the term for challenging the claims has not expired, as well as in the event that there are no creditors.
(6) The liquidator, after the performance of all creditors’ claims, draws up the final liquidation balance sheet and, together with the draft property distribution plan, submits it for approval to the body or court that appointed him.
Article 231. Protection of debtors’ rights
The decision to reorganize or liquidate outside the insolvency procedure does not affect the maturity of outstanding receivables.
Article 232. Liquidation of the property of the dissolved company
(1) The liquidation of the property involves the alienation by the liquidator of the property of the dissolved company, under the most advantageous conditions and at the most appropriate time, and begins after the approval of the provisional liquidation balance sheet.
(2) By way of derogation from the provisions of paragraph (1), the liquidator may, until the approval of the provisional liquidation balance sheet, liquidate all patrimonial property that present imminent risks of substantial damage to public and/or individual health or the environment and/or that risk losing value (depreciating). The liquidator may liquidate patrimonial property until the approval of the provisional liquidation balance sheet and in order to avoid their deterioration, disappearance from the physical and/or virtual environment, expiry of the validity periods of the property, expiry of the specialized approvals (certificates, approvals, authorizations, etc.) for them, in order to avoid alteration of the quality and/or reduction of the attractiveness on the market or exit from the market of the property. In these cases, the liquidator shall coordinate his actions in advance with the body or court that appointed him.
(3) The liquidation of property and/or patrimonial rights from the property of the dissolved company, encumbered by privileges, mortgages, real movable guarantees, pledges, retention rights, any other charges or security measures, shall be carried out only after the liquidator has previously notified the creditors who constituted the privileges, mortgages, real movable guarantees, pledges, retention rights and charges of any other kind on the property and/or rights subject to liquidation.
(4) The liquidation of property and/or patrimonial rights from the property of the dissolved company, which are not encumbered, shall be carried out without prior notification of the creditors, and the amounts obtained from their alienation shall be deposited in the liquidation account of the dissolved company.
(5) The liquidator must begin and conclude the liquidation procedure of the property within a reasonable time frame, depending on the type of property and the commercial rules practiced on the market, which ensure the sale at the best price.
Article 233. Enforcement of creditors’ claims
(1) The liquidator may not distribute to the participants (associates, shareholders, members) the property due to them following the liquidation of the legal person before paying the creditors’ claims.
(2) The participants (associates, shareholders, members) may request, even during the liquidation process, that the amounts owed to validated creditors and creditors who did not appear to receive performance be settled by recording and that the property be distributed proportionally to their participation in the share capital if, in addition to the amount necessary to fulfill all the obligations of the legal person, due or due to be due, at least 10% of the amount collected during the liquidation process remains available.
(3) During the liquidation period, forced performance for individual creditors is prohibited. The performance of the claims of validated creditors from the property of the legal person being liquidated shall be carried out only by the liquidator in the following order:
a) claims for damage to health or for causing death, by capitalizing the respective payments per unit of time;
b) salary claims against employees and remuneration due under copyright;
c) receivables for loans granted by the Ministry of Finance (principal amount, interest, commitment fee, risk fund), for domestic and foreign loans granted with state guarantee, for taxes and other payment obligations to the national public budget;
d) other creditors’ claims.
(4) The payment of expenses related to the liquidation procedure and resulting from the actions of administration, valorization and distribution of property, as well as from the liquidator’s remuneration, shall be made simultaneously with the payment of creditors’ claims in the order set out in paragraph (3), for which a maximum of 30% of the amount collected in the liquidation process shall be allocated.
(5) The liquidator begins the performance of creditors’ claims on the day of approval of the provisional liquidation balance sheet.
(6) The enforcement of the claims of the creditors of each row shall be carried out in proportion to the sum of the claims of each creditor of that row. The enforcement of the claims of the next row shall be carried out after the full enforcement of the claims of the creditors of the previous row.
(7) After payment of the expenses provided for in paragraph (4), the claims secured by pledge, mortgage and/or other real guarantees established on the property sold shall be paid from the amount obtained, in priority order, before the satisfaction of the other claims.
(8) Claims not enforced due to insufficient property of the legal person being liquidated shall be deemed extinguished. This rule shall not apply if insolvency proceedings have been initiated against the legal person.
Article 234. Distribution of property of individuals
for-profit legal persons
(1) The property of the dissolved for-profit legal person remaining after satisfying the creditors’ claims shall be transferred by the liquidator to the members in proportion to their participation in the share capital.
(2) The liquidator shall perform the calculations and draw up a report on the liquidation, which shall reflect the size and composition of the remaining property. If 2 or more members are entitled to the property of the legal person, the liquidator shall draw up a draft of the distribution of property, in which he shall establish the principles of distribution.
(3) The liquidator of the dissolved legal person, with the consent of the members, may not alienate its property unless it is necessary to satisfy the creditors’ claims.
(4) The draft of the division of property, the calculations and the report on the liquidation shall be submitted for approval to the body or court that appointed the liquidator. The body or court that appointed the liquidator may introduce amendments to the draft of the division, taking into account the will of the members.
Article 235. Distribution of property of individuals
non-profit legal persons
(1) The property remaining after satisfying the claims of the creditors of the non-profit legal person shall be distributed among the persons who, according to the act of incorporation or, in the case provided for by the act of incorporation, according to the decision of the general meeting, are entitled to them.
(2) If the non-profit legal person is established for the exclusive satisfaction of the interests of its members and the constituent act or the decision of the general meeting do not provide for the persons who are entitled to the property of the dissolved non-profit legal person, all persons who at the time of dissolution have the quality of members of it benefit from the right to the remaining patrimony. The property are distributed proportionally between these persons.
(3) If they cannot be distributed according to paragraphs (1) and (2), the property shall pass to the state, which shall use them to achieve the statutory purposes of the liquidated non-profit legal person.
Article 236. Deadline for distribution of property
After the expiration of the 30-day period from the date of approval of the final liquidation balance sheet and the property distribution plan, and in the event of contesting these documents, from the date of rejection of the contestation request by an irrevocable court decision, the property of the dissolved legal person may be distributed to the entitled persons.
Article 237. Deletion of a legal person from the register
(1) After the distribution of net property, the liquidator must submit to the state registration body the request for the deletion of the legal person from the corresponding advertising register.
(2) Deletion shall be carried out in the manner and within the time limits provided by law.
Article 238. Reopening of the liquidation procedure
(1) If, after the legal person is struck off, a creditor or a person entitled to receive the balance appears or if the existence of property is proven, the court may, at the request of any interested person, reopen the liquidation procedure and, if necessary, appoint a liquidator. In this case, the legal person is considered to exist, but exclusively for the purpose of conducting the reopened liquidation. The liquidator is empowered to demand from the entitled persons the return of what they received in excess of the part of the property to which they were entitled.
(2) For the period during which the legal person did not exist, the period of limitation of the right of action of the legal person or against the respective legal person shall be suspended.
Article 239. Insolvency of a legal person
(1) By court decision, a legal person may be declared insolvent if it cannot honor its payment obligations to creditors. The grounds and manner of declaring a legal person insolvent by the court shall be established by law.
(2) A bank may be declared insolvent by decision of the National Bank of Moldova. The grounds and manner of declaring a bank insolvent by the National Bank shall be established by law.
Article 240. Branch of a legal person
(1) A branch is a separate subdivision of a legal person, located outside its headquarters, which has the appearance of permanence, its own management and the necessary material endowment to carry out part or all of the activities of the legal person.
(2) A legal person established in the Republic of Moldova may establish branches in the Republic of Moldova and abroad unless the law or the act of establishment provides otherwise.
(3) The branch is not a legal person. The branch operates according to its own regulations, approved by the body that decided to establish it.
Article 241. Branch of a foreign legal person
in the Republic of Moldova
(1) Before a legal person established in another state (foreign legal person) carries out activity in its own name in the Republic of Moldova through a branch within the meaning of Art. 240 paragraph (1), it must register the branch in the advertising register of legal persons of the Republic of Moldova unless the law provides for another advertising register of the Republic of Moldova.
(2) The name of the branch of a foreign legal person shall consist of the name of the foreign legal person that decided to establish the branch, followed by the name of the locality abroad where the legal person is headquartered, the word “branch” and the name of the locality in the Republic of Moldova where the branch is headquartered. In the event that the same foreign legal person establishes several branches in the same locality, the name of the branch may be supplemented with an indication capable of distinguishing them from each other.
(3) A branch of a foreign legal person is not a legal person. A branch of a foreign legal person shall operate in accordance with its own regulations, approved by the body that decided to establish the branch. The foreign legal person shall be liable for the obligations arising from the activities of the branch in the Republic of Moldova.
(4) The activity that, according to the law, is subject to licensing in the Republic of Moldova may be carried out by the foreign legal person that has registered the branch in the Republic of Moldova only after obtaining the license, unless the law provides otherwise.
(5) The foreign legal person must appoint one or more branch administrators. The administrator manages the branch, ensures the branch’s accounting and represents the foreign legal person within the limits of its powers.
(6) The provisions of art. 177, 180-202 shall apply accordingly to the branch and its administrator. The provisions of art. 2596 shall apply to the foreign legal person that has registered the branch in the Republic of Moldova.
Article 242. Notation of insolvency or liquidation
foreign legal person that has
branch in the Republic of Moldova
Within 14 days from the date of initiation of the insolvency or liquidation procedure of the foreign legal person or of procedures having a similar effect according to its national law, the branch administrator is obliged to notify the holder of the advertising register of the Republic of Moldova in which the branch is registered, who will note this fact in the advertising register.
Article 243. Liquidation and deregistration of the branch
foreign legal person from the register
of the Republic of Moldova
(1) The branch of a foreign legal person shall be removed from the advertising register of the Republic of Moldova in which it is registered in one of the following cases:
a) the foreign legal person is dissolved;
b) the foreign legal person submits a request for deregistration;
c) the branch does not have an administrator and an administrator has not been appointed within 3 months after notification from the competent state registration body of the Republic of Moldova about the removal of the administrator from the register;
d) the branch manager did not submit the financial statements within the deadlines provided for by the Law on Accounting and Financial Reporting No. 287/2017 and did not eliminate the deficiency within the additional 30-day deadline granted by the authority of the Republic of Moldova to which the financial statements had to be submitted.
(2) The branch of a foreign legal person shall be removed from the advertising register of the Republic of Moldova based on a final court decision:
a) at the request of a person or public authority empowered by law or of any other interested person if the type of activity or the activities of the branch contravene the law or good morals;
b) at the request of a creditor who demonstrates that he cannot satisfy his claim arising from the operation of the foreign legal person in the Republic of Moldova from the property held by the foreign legal person on the territory of the Republic of Moldova;
c) in other cases provided for by law.
(3) After the branch is deleted from the commercial register of the Republic of Moldova, the foreign legal person may continue its activities in the Republic of Moldova through a branch within the meaning of Art. 240 para. (1) only if it has registered a new branch. In the case of the branch being deleted from the commercial register of the Republic of Moldova at the request of a creditor, the new branch may be registered only if the creditor’s claim has been satisfied or if the creditor has given its written consent to the registration of the branch in the commercial register of the Republic of Moldova.
(4) Before the branch is deleted from the advertising register of the Republic of Moldova, the branch is liquidated, applying the provisions of Articles 227-233 accordingly. After satisfying the claims of all creditors and depositing the money, the liquidators prepare the final balance sheet, which is attached to the application for deletion of the branch from the advertising register of the Republic of Moldova.
Article 244. Publications of a legal person
If the law or the constituent documents provide for the publication of information about the legal person, the information shall be published in the “Official Gazette of the Republic of Moldova” and, if available, on the website of the legal person. The constituent documents may also provide for the publication of information about the legal person in other mass media.
Section 2
Commercial companies
§ 1. Common provisions
Article 245. General provisions regarding companies
trader
(1) A commercial company is a commercial organization with share capital consisting of the shares of its members (associates). The property created from the contributions of the associates and those acquired by the commercial company in the course of its activity belong to it with the right of ownership. In the cases provided for by this Code, a commercial company may be founded by a single person.
(2) A commercial company may only be established in the form of a general partnership, a limited partnership, a limited liability company and a joint-stock company.
(3) The commercial company may be a founder (associate) of another commercial company, except for the cases provided for by this code and other laws.
(4) Cash, securities, other goods or patrimonial rights may serve as a contribution to the property of the company. The monetary valuation of the associate’s contribution to the company shall be carried out by agreement of the associates and shall be subject to independent control by experts (audit).
Article 246. Establishment of a commercial company
(1) The commercial company is established by an act of incorporation.
(2) Each founder of the company must contribute, in the amount established by the deed of incorporation, to the formation of the share capital.
Article 247. The company’s deed of incorporation
trader
(1) The deed of incorporation of the commercial company must indicate:
a) name, place and date of birth, domicile, citizenship and data from the identity document of the founder who is a natural person; name, headquarters, nationality, registration number of the founder who is a legal person;
b) the name of the company;
c) the object of activity;
d) the partners’ participations, the method and term of their payment;
e) the value of the property constituted as participation in kind and the method of evaluation, if such contributions were made;
f) headquarters;
g) the structure, powers, manner of establishment and functioning of the company’s bodies;
h) mode of representation;
i) the company’s branches;
j) other data established by law for the respective type of company.
(2) The deed of incorporation of the commercial company may derogate from the provisions of this section only in the cases expressly provided for.
(3) The deed of incorporation of the commercial company may also provide for other clauses that do not contravene the law.
(4) The deed of incorporation of the commercial company shall be drawn up in Romanian and shall be signed by all founding partners.
Article 248. State registration of a commercial company
(1) The commercial company must be registered, in the manner and within the time limit established by law, with the state registration body.
(2) If the registration of the commercial company has not taken place within 3 months from the date of approval of the deed of incorporation by all founding partners, they have the right to be relieved of the obligations resulting from their subscriptions, unless the deed of incorporation provides otherwise.
Article 249. Nullity of the commercial company
(1) A commercial company may be declared null and void by court decision.
(2) The decision regarding the nullity of the commercial company may be pronounced only when:
a) the deed of incorporation is missing;
b) the object of the company is illicit or contrary to public order;
c) the deed of incorporation does not provide for the name of the company, the shareholders’ shares, the size of the subscribed share capital or the purpose of the company;
d) the legal provisions regarding the minimum share capital were not complied with;
e) all founders concluded the deed of incorporation in violation of their capacity to exercise.
(3) The operative part of the decision declaring the nullity of the commercial company shall be inserted in the company’s publications within 15 days from the date the decision becomes final.
Article 250. Effects of declaring the company null and void
trader
(1) On the date on which the court decision declaring the nullity of the commercial company becomes final, it shall be dissolved and enter into liquidation. The court decision declaring the nullity shall designate the liquidator of the company.
(2) The nullity of the company does not affect the juridical acts concluded in its name, with the exception of the case provided for in paragraph (3).
(3) If the commercial company declared null and void is insolvent, its liquidation shall be carried out in accordance with the legislation on insolvency.
(4) The partners to whom the nullity of the company is attributable shall be liable unlimitedly and jointly and severally to the other partners and to third parties for the damage caused by the nullity of the company.
Article 251. Formation of the company’s share capital
trader
(1) The share capital determines the minimum value of the property that the company must hold.
(2) The share capital of the company is formed from the contributions of the founders, expressed in lei.
(3) The share capital shall be paid in full within 6 months from the date of registration of the company.
Article 252. Contribution to the company’s share capital
trader
(1) The contribution to the share capital of the commercial company is considered to be in cash unless the deed of incorporation provides otherwise.
(2) The work and services rendered upon the establishment of the commercial company and during its existence cannot constitute a contribution to the formation or increase of the share capital.
(3) No interest shall be calculated for the contribution to the share capital of the commercial company, with the exceptions established by law.
(4) If the associate has not paid the contribution on time, any associate has the right to request this in writing, setting an additional deadline of at least one month and warning him that the deadline is forfeit and his exclusion from the company is possible.
(5) If the contribution is not paid within the additional term, the associate loses the right to the share capital and the fraction paid, a fact which must be notified.
Article 253. Contribution in kind to the share capital
of the company
(1) The contribution in kind to the share capital of the commercial company has as its object any goods in civil circulation.
(2) The goods are considered to be transferred as property unless the deed of incorporation provides otherwise. If the goods were transferred as use, the legal provisions regarding lease shall apply accordingly between the associate and the company, except that the company does not owe rent in exchange for use.
(3) Contributions to the formation or increase of the share capital of a limited liability company or a joint-stock company may be made by receivables, rights to intellectual property, as well as other patrimonial rights. This rule also applies in the case of the conversion of a pecuniary obligation of the company into shares or, as the case may be, shares in favor of the creditor.
(4) The partners in a general partnership and the limited partners may undertake to perform work and services as a social contribution, which, however, does not constitute a contribution to the formation or increase of the share capital. In exchange for this contribution, the partners have the right to participate, in accordance with the act of incorporation, in the distribution of the company’s profits and property, while remaining obliged to participate in the losses.
(5) The contribution in kind must be paid within the term established by the deed of incorporation, but not later than the term indicated in art. 251 paragraph (3). In the case of an increase in the share capital, the contribution shall be paid within the term established by the general meeting, but not later than 60 days from the adoption of the decision to increase the share capital.
(6) Contributions in kind shall be valued in money by an independent appraiser and approved by the general meeting of partners. The partner who submitted the contribution and the appraiser shall be jointly and severally liable, within the limits of the overvaluation. Claims regarding the correctness of the valuation shall be time-barred within 3 years from the moment of approval of the contribution in kind by the general meeting of partners.
(7) The contribution to the receivables shall be considered paid only after the commercial company has obtained payment of the amount of money that is the subject of the receivable.
Article 254. Rights of the partner of the commercial company
(1) The associate of the commercial company has the right:
a) to participate in the management and activity of the company under the conditions established by law and the deed of incorporation;
b) to know the information about the company’s activity and to take note of the accounting books and other documentation in the manner provided by law and the deed of incorporation;
c) to receive a share of the company’s profit (dividend), proportional to the share capital, under the conditions established by law and the deed of incorporation;
d) to receive, in the event of liquidation of the company, a part of the value of its property remaining after satisfying the creditors’ claims, proportional to the participation in the share capital;
e) to undertake other actions provided for by law or the act of incorporation.
(2) The deed of incorporation may also provide for another method of distributing the company’s profit or property than that indicated in paragraph (1), but no one may be entitled to the entire profit made by the company nor may he be absolved of the losses suffered by it.
(3) If the management bodies refuse to do so, the associate of the commercial company is entitled to request, on its behalf, the other associates to compensate for the damage they have caused.
(4) Unless otherwise provided by law, the persons who had the status of associate on the date of adoption of the decision to distribute dividends have the right to receive dividends.
Article 255. Obligations of the partner of the commercial company
(1) The associate of the company is obliged:
a) to transfer the share capital in the order, amount, manner and terms provided for in the articles of association;
b) not to disclose confidential information about the company’s activity;
c) to immediately communicate to the company the fact of the change of domicile or headquarters, name or denomination, other information necessary for the exercise of the rights and fulfillment of the obligations of the company and its associate;
d) to fulfill other obligations provided by law or the deed of incorporation.
(2) Without the consent of the partnership, the associate shall not have the right to engage in activities similar to those carried out by the partnership. The consent of the associates shall be presumed, until proven otherwise, for activities of which the associates were informed at the date of acceptance as associates.
(3) If the associate violates the provisions of paragraph (2), the company may request compensation for the damage or the assignment of the rights and obligations or the benefit resulting from the concluded acts.
§ 2. General partnership
Article 256. General provisions regarding the company
collectively
(1) A general partnership is a commercial company whose members, in accordance with the deed of incorporation, carry on an entrepreneurial activity on behalf of the company and are jointly and severally liable for its obligations. The clause limiting liability is not enforceable against third parties.
(2) The number of partners may not be less than 2 nor more than 20 natural or legal persons. A natural or legal person may be a partner only of a general partnership.
(3) The name of the general partnership must include the phrase in Romanian “societate în nume colectiv” or the abbreviation “SNC”, the name or designation of the partners. If the names or designations of all partners are not included, the name or designation of at least one of the partners and the phrase in Romanian “și compania” or the abbreviation “și Co” must be included in the name of the company.
Article 257. The company’s deed of incorporation
collectively
(1) In addition to those mentioned in art. 247 paragraph (1), the deed of incorporation of the general partnership must indicate:
a) the amount and content of the company’s share capital and the method of depositing contributions;
b) the size and method of modifying the shares of each participant in the share capital;
c) liability of associates for breach of obligations to deposit contributions;
d) the procedure for adopting decisions by the associates;
e) the procedure for admitting new associates;
f) the grounds and procedure for withdrawal and exclusion of the associate from the company.
(2) The articles of association may be amended only by unanimous vote of all the associates.
Article 258. Management of a general partnership
(1) The management of a general partnership shall be exercised by the agreement of all the partners. The articles of association of the partnership may provide for cases in which the decision shall be adopted by a majority vote of the partners.
(2) Each associate of the general partnership has one vote unless the deed of incorporation provides otherwise.
Article 259. Management of the general partnership
(1) Each associate of a general partnership has the right to act on behalf of the partnership unless the deed of incorporation provides that all associates jointly manage the partnership or that management is delegated to certain associates or third parties.
(2) The powers of the administrator are limited to the company’s field of activity. For the performance of acts exceeding these limits, the consent of all associates is required.
(3) In the case of joint management, decisions must be taken unanimously. If the management of the company is delegated to one or more persons, the other partners, in order to conclude juridical acts on behalf of the company, must have a power of attorney from the first partner(s). In relations with third parties, the company is not entitled to invoke the clauses of the deed of incorporation limiting the powers of the company’s partners, except in cases where the company demonstrates that the third party, at the time of concluding the juridical act, knew or should have known that the partner is not empowered to act on behalf of the company.
(4) Each partner of a general partnership, regardless of whether or not he is authorized to manage the company, has the right to examine, personally or with the assistance of an expert, all documentation regarding the management. Any clause that excludes or limits this right is null and void.
Article 260. Representation of the company in a general partnership
(1) The right and obligation to represent the company in collective name are vested in all its associates.
(2) The articles of association may stipulate the right of one or more partners to represent the company. In this case, the other partners shall not have the right to represent it.
(3) If the right of representation belongs to several associates, each one has the right to act independently unless the deed of incorporation provides that they must act jointly.
(4) In the case of the appointment of administrators from among third parties, the right to represent the company in collective name may be stipulated in the deed of incorporation.
(5) Persons who have the right to represent the company in collective name are obliged to notify the state body where it is registered about their appointment.
(6) The provisions of the deed of incorporation that limit the right of the associates to represent the company in a collective name are not enforceable against third parties acting in good faith. Good faith is presumed.
Article 261. Loss and waiver of the right
administration and representation
of the general partnership
(1) If there are justified reasons, at the request of any associate, the court may deprive the person of the right to administer and represent the company in collective name. Justified reasons are, among others, serious breach of obligations and the impossibility of exercising the duties.
(2) By means of a declaration addressed to the persons with the right of administration and representation, each associate may at any time waive the right to administer and represent the company.
Article 262. Distribution of income and losses
the general partnership
(1) The income and losses of a general partnership shall be distributed among its associates in proportion to their shares in the share capital, unless the deed of incorporation or the agreement of the associates provides otherwise. An agreement on the exclusion of a partner of the partnership from participation in the income or losses of the partnership shall be null and void.
(2) The associate who acted in the interest of the general partnership without authorization has the right, if the partnership has not accepted the juridical acts concluded by him, to request compensation for the expenses incurred, within the limit of the benefit or savings obtained by the partnership as a result of his actions.
(3) If, as a result of the losses incurred, the net property of the general partnership become less than its share capital, the income obtained by the partnership shall not be distributed among its associates until the value of the net property exceeds the amount of the share capital.
Article 263. Liability of the company’s partners
collectively for its obligations
(1) The partners of a general partnership shall bear joint and several subsidiary liability with all their property for the obligations of the partnership.
(2) The associate of the general partnership who is not its founder bears equal liability with other associates for the obligations arising before his inclusion in the partnership.
(3) The associate who has left the general partnership shall be liable for the obligations arising before his/her exit from the partnership, equally with the remaining associates, within 2 years from the date of approval of the report on the partnership’s activity for the year in which he/she left the partnership.
(4) The partner against whom an action is brought for the obligations of the general partnership may only raise the exceptions to which the partnership or the personal partner is entitled.
(5) The agreement of the general partnership partners on the limitation or elimination of liability provided for in this article is null and void.
Article 264. Modification of the composition of the partners
the general partnership
(1) In case of withdrawal of a partner of the general partnership, death, declaration of disappearance without trace or establishment of a judicial protection measure with respect to a natural person partner, insolvency, opening of reorganization proceedings based on a court decision, liquidation of the legal person partner of the partnership or pursuit by a creditor of the partner’s participation in the share capital, the partnership may continue its activity if provided for in the partnership’s articles of association or if the decision on the continuation of the activity is adopted unanimously by the remaining partners.
(2) The associate of the general partnership may be excluded from the partnership if the other associates request, for well-founded reasons by unanimous vote, the court to exclude him.
(3) If the partner of the general partnership has left it, the shares in the share capital of the remaining partners shall be increased accordingly, unless otherwise provided by the deed of incorporation or by the agreement of the partners.
(4) A partner of a general partnership may transfer, with the consent of the other partners, his or her share in the share capital or a part thereof to another partner or a third party. The rights of the partner who transferred the share shall pass with the share, in full or in proportion to the part transferred.
Article 265. Withdrawal of the associate from the company
collectively
(1) The associate of the general partnership has the right to withdraw from it provided that the other associates are informed at least 6 months before the date of withdrawal.
(2) The agreement between the partners of the general partnership on the waiver of the right to withdraw from the partnership is null and void.
Article 266. Effects of the withdrawal of the associate from
general partnership
(1) The associate who has withdrawn from the general partnership shall be paid the value of the share of the property proportional to his participation in the share capital unless the deed of incorporation provides otherwise.
(2) By agreement between the associate who withdraws from the general partnership and the remaining associates, the payment of the value of the property may be replaced by its transmission in kind.
(3) The share of the partnership’s property or the value of this share, which is due to the withdrawing partner, shall be determined according to the balance sheet drawn up at the time of withdrawal.
Article 267. Death or reorganization of the associate
the general partnership
(1) The successors of a deceased or reorganized general partnership partner may become partners, unless the articles of association prohibit it, with the consent of all partners. The articles of association may provide for a majority vote for the adoption of the decision to accept the successor as a partner.
(2) If the partners of the general partnership do not accept the successors as partners, the partnership is obliged to pay them the share of the net property, determined on the date of death or reorganization, proportional to the share of the share capital held by the deceased or reorganized partner.
(3) The successor of the general partnership associate shall be liable, within the limits of the patrimony that has passed to him, for the obligations for which, in accordance with art. 263 paragraphs (2) and (3), the deceased or reorganized associate was liable.
Article 268. Tracking the partner’s participation
from the company’s share capital
collectively
(1) The pursuit of the participation in the share capital of a general partnership partner for his debts not related to his participation in the partnership (personal debts) is permitted only in the event of the insufficiency of his other property to meet the debts. The creditors of such a partner are entitled to demand from the partnership the separation of a part of its property in proportion to the debtor’s participation in the share capital for the pursuit of this part. The part of the partnership’s property susceptible to separation or its value is determined according to a balance sheet drawn up at the time of submitting the creditors’ claims regarding separation.
(2) The pursuit of the property proportional to the associate’s participation in the share capital conditions the exclusion of the associate from the general partnership and entails the effects provided for in art. 263, paragraphs (2) and (3).
Article 269. Dissolution of a general partnership
(1) Except for the cases provided for in art. 223 paragraph (1), the general partnership shall be dissolved if only one associate remains in it.
(2) The last remaining partner of the general partnership has the right, within 6 months, to reorganize the partnership, in the manner provided for by this code.
Article 270. Reorganization of a general partnership
(1) In the event of the reorganization of the general partnership into a joint-stock company, a limited liability company or a cooperative, the partners shall continue, within 3 years, to be jointly and severally liable and unlimitedly for the obligations arising prior to the reorganization.
(2) The associate is not absolved of liability even if, before the expiry of the 3-year term, he alienates the right to participate in the share capital.
§ 3. Limited partnership
Article 271. General provisions regarding the company
in limited partnership
(1) A limited partnership is a commercial company in which, alongside partners who practice entrepreneurial activity on behalf of the company and bear unlimited joint and several liability for its obligations (limited partners), there are one or more financing partners (limited partners) who do not participate in the entrepreneurial activity of the company and bear, within the limit of the contribution made, the risk of losses resulting from the company’s activity.
(2) A person may be a general partner in only one limited partnership. A partner in a general partnership may not be a general partner in the limited partnership. A limited partner in a limited partnership may not be a partner in the general partnership.
(3) The name of the limited partnership must include the phrase in Romanian “societate în comandita” or the abbreviation “SC”, the name or designation of the limited partners. If the names or designations of all the limited partners are not included, the name or designation of at least one of the limited partners and the phrase in Romanian “și compania” or the abbreviation “și Co” must be included in the name of the company. If the name or designation of the limited partner is included in the name of the company, he shall bear unlimited joint and several liability.
(4) The provisions regarding the general partnership are applicable to the limited partnership to the extent that this code does not contain express rules regarding the limited partnership.
Article 272. Deed of incorporation of a limited partnership
In addition to those mentioned in art. 247 paragraph (1), the deed of incorporation of the limited partnership must indicate:
a) the amount and content of the company’s share capital and the method of depositing contributions;
b) the size and method of modifying the shares of each limited partner in the share capital;
c) liability of limited partners for breach of contribution deposit obligations;
d) the total volume of contributions made by the limited partners;
e) the procedure for adopting decisions by the associates;
f) the procedure for admitting new associates;
g) the grounds and procedure for withdrawal and exclusion of the associate from the company.
Article 273. Administrative management
and representation of society
in limited partnership
(1) The management of a limited partnership is exercised by the limited partners. The manner of management, administration and representation of the partnership by the limited partners is established by them in accordance with the provisions of this Code relating to the general partnership.
(2) The limited partners shall not have the right to participate in the management and administration of the limited partnership, to represent it without a power of attorney, to contest the actions of the limited partners in connection with the management or representation of the partnership exercised within the limits of its ordinary activity. If the actions exceed the limits of ordinary activity, the consent of all the partners shall be required.
Article 274. Rights and obligations of the limited partner
(1) The limited partner has the right:
a) to receive the share due to him from the company’s income proportional to his participation in the share capital, in the manner provided for in the articles of association;
b) to take note of the annual reports and balance sheets and to verify them with the data in the registers and other supporting documents;
c) to withdraw from the company at the end of the financial year and to receive a part of its property proportional to his/her participation in the share capital, in the manner established by the deed of incorporation;
d) to transfer his participation in the share capital or part of it to another limited partner or, if stipulated by the deed of incorporation, to a third party.
(2) The rules regarding the prohibition of competition, provided for in art. 255 paragraph (2), do not apply to the limited partner unless the deed of incorporation provides otherwise.
(3) The full contribution to the share capital is confirmed by the participation certificate issued by the limited partnership.
(4) The deed of incorporation of the limited partnership may also provide for other rights and obligations of the limited partner.
Article 275. Liability in case of acceptance
limited partner status
A person who becomes a limited partner of an existing company bears the risk of losses within the limit of his participation and for the obligations arising up to the moment of acquiring the quality of associate. The contrary clause is unenforceable against third parties.
Article 276. Reduction of the limited partner’s participation
(1) The reduction of a limited partner’s participation is not enforceable against third parties until the reduction is registered in the advertising register provided for by law.
(2) The reduction of the participation is not opposable to creditors whose claims arose before the moment of registration of the reduction.
Article 277. Alienation of the limited partner’s participation
(1) The limited partner’s participation may be alienated to third parties and may pass to successors without the consent of the partners unless the deed of incorporation provides otherwise.
(2) Limited partners have the right of pre-emption in the event of the alienation of the participation by another limited partner. The rules regarding the alienation of the participation in the limited liability company shall apply accordingly.
(3) The capacity of limited partner shall cease upon the complete alienation of the participation.
Article 278. Dissolution of a limited partnership
(1) Apart from the cases provided for in Article 223 paragraph (1), the limited partnership shall be dissolved if it no longer has any general partner or limited partner and if, within 6 months of the withdrawal of the last general partner or limited partner, it has not reorganized or accepted another general partner or limited partner.
(2) In the event of the dissolution of the limited partnership, including as a result of insolvency, the limited partners have a preferential right over the general partners to recover the contributions from the partnership’s property remaining after satisfying all creditors’ claims.
Article 279. Reorganization of a limited partnership
(1) In the event of the reorganization of a limited partnership into a joint-stock company, a limited liability company or a cooperative, the limited partners shall continue, within 3 years, to be jointly and severally liable and unlimitedly for the obligations arising prior to the reorganization.
(2) The limited partnership is not absolved of liability even if it alienates, before the expiry of the 3-year term, the right to participate in the share capital.
§ 4. Limited liability company
Article 280. General provisions regarding
at the limited liability company
(1) A limited liability company is a commercial company whose share capital is divided into shares according to the act of incorporation and whose obligations are guaranteed by the company’s property.
(2) The manner of establishment, operation, reorganization and liquidation of limited liability companies is regulated by law and, in addition, by the provisions of this code.
§ 5. Joint-stock company
Article 281. General provisions regarding the company
on shares
(1) A joint-stock company is a commercial company whose share capital is divided into shares and whose obligations are guaranteed by the company’s property.
(2) The manner of establishment, operation, reorganization and liquidation of joint-stock companies is regulated by law and, in addition, by the provisions of this code.
Section 3
Cooperatives
Article 282. General provisions regarding cooperatives
(1) A cooperative is a voluntary association of natural and legal persons, organized on corporate principles for the purpose of promoting and guaranteeing, through the joint actions of its members, their economic and other legal interests.
(2) The cooperative may not have less than 5 members. A natural person from the age of 16 and a legal person may be a member of a cooperative.
(3) The member of the cooperative bears the risk resulting from its activity within the limit of the participation held in its property, including the unpaid part.
(4) The name of the cooperative must contain the word “cooperative” and indicate in Romanian the main purpose of its activity.
(5) The particularities and legal status of different types of cooperatives, as well as the rights and obligations of their members, are established by this Code and other laws.
Article 283. Statute of cooperatives
(1) The cooperative’s statute must indicate:
a) the name;
b) the object of activity and purpose;
c) headquarters;
d) members’ contributions to the share capital, the method and term of their payment;
e) the benefit in money or other goods to which the members may be obligated, as well as the nature and value of these benefits;
f) the structure, powers, manner of establishment and functioning of the cooperative’s management bodies;
g) mode of representation;
h) rules for convening the general meeting of members;
i) the cooperative’s branches;
j) other dates established by law.
(2) The provisions regarding: are not valid, except in the case of inclusion in the statute.
a) contributions in kind, their object and the price for which they are accepted, as well as the member making them;
b) individual liability of members;
c) derogations from the law regarding entry into the cooperative, withdrawal and exclusion of the member;
d) the extent and restrictions of the member’s voting rights;
e) calculation and destination of the active surplus of the financial year and in the event of liquidation;
f) the quota within which some members may participate in the share capital.
(3) The statute may also provide for other clauses that do not contravene the law.
(4) The statute shall be drawn up in Romanian and shall be signed by all founding members.
Article 284. Registration of cooperatives
State registration of cooperatives is carried out in the manner established for commercial companies.
Article 285. Share capital of cooperatives
(1) The cooperative has a variable share capital. It represents the sum of all the participations of the cooperative members in accordance with its statute.
(2) Until the registration of the cooperative, the member is obliged to deposit his/her full participation unless the law or the cooperative’s statute provides otherwise.
(3) The members of the cooperative are obliged, within 2 months after the approval of the annual balance sheet, to recover, through additional contributions, the losses of the cooperative. In case of failure to fulfill this obligation, the cooperative may be dissolved by court decision, at the request of the creditors. The members of the cooperative bear joint subsidiary liability for its obligations within the limits of the untransferred part of the additional contribution of each member.
(4) The property remaining after the liquidation of the cooperative shall be distributed among its members in accordance with its statute.
Article 286. Management of the cooperative
(1) The supreme governing body of a cooperative is the general meeting of its members. In a cooperative with over 50 members, a supervisory board may be created, which shall exercise control over the activities of its executive bodies. Members of the supervisory board shall not have the right to act on behalf of the cooperative.
(2) The executive bodies of the cooperative – the board of directors and the president of the cooperative – exercise current administration and are subordinate to the supervisory board and the general meeting.
(3) Only members of the cooperative may be the chairman of the cooperative, members of the supervisory board and the board of directors. The same person may not be simultaneously a member of the supervisory board and the board of directors or chairman of the cooperative.
(4) The competence of the cooperative’s management bodies and the manner of issuing decisions are established by law and the cooperative’s statute.
(5) The following are under the exclusive competence of the general meeting:
a) amendment of the statute;
b) appointing the supervisory board and dismissing its members, appointing and dismissing members of the cooperative’s executive bodies, if this right is not assigned to the supervisory board by the statute;
c) approval of the annual reports and the annual balance sheet, distribution of losses;
d) deciding on the reorganization and liquidation of the cooperative.
(6) The legislation on cooperatives and the statute of the cooperative may assign other matters to the exclusive competence of the general meeting. Matters the resolution of which falls within the exclusive competence of the general meeting or the supervisory board may not be assigned to the competence of the executive bodies of the cooperative.
(7) The cooperative member has the right to one vote in the general meeting.
Article 287. Acquisition of membership
(1) The cooperative may accept new members at any time.
(2) The cooperative’s statute may establish some particular conditions for the admission of new members.
Article 288. Termination of membership
of the cooperative and the return
of participation
(1) Membership of the cooperative shall terminate upon withdrawal, exclusion, death or liquidation.
(2) The member has the right to withdraw from the cooperative until the decision to dissolve is adopted.
(3) The member who withdraws from the cooperative shall be compensated for the value of the participation or shall be transferred property corresponding to his participation. The calculations shall be made according to the balance sheet as of the date of withdrawal, and if the withdrawal takes place during the financial year, the refund shall be made according to the last balance sheet.
(4) The member of the cooperative may, unless the statute provides otherwise, at any time alienate his participation to another member or a third party who is to become a member, thus withdrawing from the cooperative without claiming his share of the property.
(5) A member of the cooperative may be excluded by decision of the general meeting in the event of non-performance or improper performance of the obligations assigned by the cooperative’s statute, after the expiry of an additional one-month period established by notification for the remedy of the non-performance, as well as in other cases provided for by law or the cooperative’s statute. The member excluded from the cooperative has the right to the return of the participation in accordance with paragraph (3).
(6) The participation shall be transmitted by succession unless the cooperative’s statute provides otherwise. In the event that they cannot become members of the cooperative, the successors shall be paid the value of the participation.
(7) Pursuing participation for personal debts is allowed only in the event of insufficiency of another patrimony of the cooperative member to pay them in the manner provided by law or the cooperative’s statute.
Article 289. Reorganization and liquidation of cooperatives
The cooperative is reorganized and liquidated in the manner established for the commercial company.
Section 4
Group of legal persons
Article 290. Group of legal persons
for profit
(1) The group comprises the legal person exercising control and all legal persons controlled by it (subsidiaries).
(2) Controlled legal person (subsidiary) is a legal person subject to the control of another legal person (the legal person exercising control), either directly or through another controlled legal person.
(3) A wholly owned legal person is a legal person that has no other member than the controlling legal person or any other controlled legal person.
(4) The provisions of this section shall apply to legal persons for profit. The provisions of this section shall apply to foreign legal persons that are part of the group, regardless of the form of organization under their national law.
Article 291. Obligation to disclose control
(1) The administrator of the legal person exercising control must inform in writing the administrator of the controlled legal person as soon as control has been established or has ceased.
(2) As soon as it has been informed, the controlled legal person, unless it is of foreign nationality and its national law does not provide for it, must inform the controlling legal person without undue delay of the number of shares and voting rights held by it at the general meeting of the controlling legal person, as well as in any other legal persons.
Article 292. The right of the legal person to
exercise control to give instructions
the administrator of the legal person
control
(1) The legal person exercising control has the right to give instructions to the administrator of the legal person it controls unless the law provides otherwise.
(2) Subject to the provisions of Article 295, the administrator of the controlled legal person must comply with the instructions given by the legal person exercising control over it.
(3) A controlled legal person that is not wholly owned must notify the public register in which it is registered whether or not it receives instructions from the controlling legal person. If no notification has been made to the relevant public register, the wholly owned legal person shall be presumed to receive instructions from the controlling legal person and notification to the register is not required. Instead, it shall notify the fact that it is wholly owned. This notification is intended only to inform third parties and members of the legal person required to notify.
Article 293. The right to receive information at the level
controlled legal person
The bodies of the legal person exercising control, including those of foreign nationality, have the right to receive any information from the controlled legal person if this does not violate the law applicable to the controlled legal person or the rights of third parties.
Article 294. Interest of the group
(1) If the administrator of a controlled legal person, in particular as a result of an instruction given by the legal person exercising control, takes a decision that is contrary to the interests of the controlled legal person, the administrator shall be deemed not to have breached his obligations if the following conditions are met:
a) the decision is in the interest of the group;
b) the administrator has reason to reasonably assume that the potential damage will be balanced, within a reasonable time, by an advantage;
c) the potential damage is not likely to endanger the very existence of the legal person.
(2) If the controlled legal person is a wholly owned legal person, the provisions of paragraph (1) letter b) shall not apply.
(3) The administrator of the controlled legal person has the right to refuse to comply with the instructions received from the legal person exercising control if the conditions provided for in paragraph (1) are not met.
Article 295. Abuse of control
(1) If the controlled legal person that has been managed in accordance with the instructions given by the legal person exercising control, in the interest of the group, has no objective chances, on the basis of its own resources, to avoid entering insolvency proceedings (crisis point), the legal person exercising control is obliged to carry out a fundamental restructuring or to initiate insolvency proceedings without undue delay.
(2) The legal person exercising control is obliged to pay the outstanding debts of the controlled legal person that arose before the crisis point:
a) if he violates the provisions of paragraph (1);
b) if he managed the controlled legal person in a way that caused it damage;
c) if it allowed the controlled legal person to identify itself with the group or to refer to the reputation of the group, so that creditors could consider, in good faith, that the legal person exercising control will maintain the solvency of the controlled legal person.
(3) It is presumed that the legal person exercising control knew or should reasonably have known that the controlled legal person had reached a crisis point.
(4) Only the insolvency administrator/liquidator of the controlled legal person may request the performance of the obligation provided for in paragraph (2).
Section 5
Non-profit organizations
Article 296. General provisions regarding
to non-profit organizations
(1) A non-commercial organization is a legal person whose main purpose is other than obtaining income.
(2) Non-commercial organizations are:
a) the association;
b) the foundation;
c) private institution.
Article 297. Association
(1) Association is a non-commercial organization voluntarily established by the founders, in the manner provided by law, to meet non-commercial needs.
(2) The association may take the form of a public association, religious cult or component part thereof, party or other socio-political organization, trade union, employer’s association, other forms under the law.
(3) In the association, membership is recorded.
(4) The property transferred to the association by the founders (members) are its property. The association uses these property for the purposes established in the statute.
(5) Members do not retain their rights over the property transferred to the association as property, nor over the membership fees. They are not liable for the obligations of the association, and the association is not liable for the obligations of its members.
(6) The particularities of the establishment, activity, and legal status of different types of associations are established by law.
Article 298. Foundation
(1) A foundation is a non-commercial organization, without members, established by one or more persons, endowed with property distinct and separate from those of the founders, intended to achieve the non-commercial purposes provided for in the act of incorporation.
(2) The foundation may also be established by will.
Article 299. Private institution
(1) A private institution is a non-commercial organization established by a single person to achieve non-commercial purposes, partially or fully financed by him/her.
(2) The property transferred to the private institution by the founder are the property of the private institution, unless the act of incorporation provides otherwise.
(3) The private institution is established based on the decision of the person who endows it according to the intended purpose.
Article 300. Status of a non-commercial organization
(1) The non-commercial organization acts on the basis of its statute unless the law provides otherwise.
(2) The statute shall be signed by all founders unless the law provides otherwise.
(3) The statute of the non-commercial organization shall indicate:
a) the legal form of organization;
b) full name;
c) the purposes for which it is established;
d) the procedure for establishment, reorganization and cessation of activity;
e) management and control bodies, method of appointment, competence and duration of their mandate;
f) the method of appointing the administrator and, where appropriate, other bodies of the organization;
g) the procedure for adopting and amending the statute;
h) the manner in which it will ensure the transparency of its activity;
i) other dates established by law.
(4) The statute may also provide for other clauses that do not contravene the law.
Article 301. Types of activity of organizations
non
(1) Non-commercial organizations are entitled to carry out any type of activity not prohibited by law, which is related to the achievement of the goals provided for by the statute.
(2) The activity which, according to the law, is subject to licensing shall be practiced by non-commercial organizations only after obtaining the license.
Article 302. Economic activity of the organization
non
The non-commercial organization is entitled to carry out economic activity. Economic activity may be exercised directly by the non-commercial organization or by establishing, under the terms of the law, legal persons for profit.
Article 303. Management, administration and representation
non-profit organization
The rules for management, administration and representation of a non-commercial organization are established by law and its statute.
Chapter III
PARTICIPATION OF LEGAL PERSONS
PUBLIC LAW TO REPORTS
REGULATED BY CIVIL LAW
Article 304. The Republic of Moldova and its units
administrative-territorial as subjects
civil law
(1) The Republic of Moldova and its administrative-territorial units participate in relations regulated by civil legislation on the principle of equality of participants in these relations –
natural and legal persons.
(2) The subjects mentioned in paragraph (1) shall be subject to the norms regulating the participation of legal persons in relations regulated by civil legislation unless otherwise provided by law or the specifics of these subjects.
Article 305. The manner of participation of
Republic of Moldova and its units
their administrative-territorial
relationships regulated by legislation
Relationship
(1) The central public administration authorities may acquire and exercise patrimonial and personal non-patrimonial rights and obligations in the name of the Republic of Moldova, as well as represent it in court, within the limits of their competence.
(2) Local public administration authorities may acquire and exercise patrimonial and personal non-patrimonial rights and obligations on behalf of the administrative-territorial units within the limits of their competence.
(3) In the case and in the manner provided for by law, by decrees of the President of the Republic of Moldova, by decisions and ordinances of the Government and by acts of local public administration authorities, natural and legal persons may act on their behalf, by special authorization. The rules of mandate shall apply to the extent that they do not contradict the essence of the legal relationship or are not expressly stipulated otherwise.
Article 306. Civil liability of the Republic of Moldova
and its administrative-territorial units
(1) The Republic of Moldova and its administrative-territorial units are liable for obligations with all property that is part of their private domain.
(2) The Republic of Moldova is not liable for the obligations of administrative-territorial units.
(3) The administrative-territorial units are not liable for the obligations of the Republic of Moldova.
(4) The provisions of paragraphs (2) and (3) shall not apply to cases in which the Republic of Moldova has granted guarantees for the obligations of administrative-territorial units or these have granted guarantees for the obligations of the Republic of Moldova.
(5) The specifics of the civil liability of the Republic of Moldova and of administrative-territorial units in relations with foreign individuals and legal persons or with other states are established by law.
Article 307. Public institution
(1) The public institution is a legal person under public law which is established on the basis of an act issued by the public authority and which is financed, in whole or in part, from the latter’s budget.
(2) The founder is liable for the obligations of the public institution to the extent that its property are not sufficient to settle them.
(3) The public institution is entitled to carry out any activity not prohibited by law, which is related to the achievement of the purposes provided for by law or statute.
(4) The activity that, according to the law, is subject to licensing may be practiced by the public institution only after obtaining the license, unless the law provides otherwise.
(5) In order to carry out entrepreneurial activities that do not directly result from the purpose provided for in the statute, the public institution may establish, alone or together with other legal persons under public law, limited liability companies or joint stock companies. The public institution may establish limited liability companies or joint stock companies together with legal persons under private law under the conditions of the legislation on public-private partnerships.
Title III
JURIDICAL ACT AND REPRESENTATION
Chapter I
GENERAL PROVISIONS REGARDING
TO THE JURIDICAL ACT
Article 308. The concept of juridical act
A civil juridical act is the manifestation by natural and legal persons of the will directed towards the creation, modification or termination of civil legal relations.
Article 309. Unilateral, bilateral and multilateral juridical act
(1) A unilateral juridical act is the manifestation of the will of a single party. A unilateral juridical act may give rise to obligations for third parties only in the cases provided for by law.
(2) The provisions on obligations and contracts shall apply accordingly to a unilateral juridical act if this does not contradict the law or the unilateral nature of the juridical act.
(3) A bilateral juridical act is the manifestation of the concordant will of two parties.
(4) A multilateral juridical act is the manifestation of will of three or more parties.
Article 310. Gratuitous juridical act and juridical act
for a fee
(1) A gratuitous juridical act is an act by which a party obtains a patrimonial benefit without seeking to obtain another patrimonial benefit in return.
(2) A juridical act for consideration is an act by which a party obtains a patrimonial benefit in exchange for obtaining another patrimonial benefit.
Article 311. Juridical acts of preservation,
administration and disposition
(1) A juridical act of preservation is an act aimed at preventing the loss of a subjective civil right.
(2) A juridical act of administration is an act that aims at the usual enhancement of an property or patrimony.
(3) A juridical act of disposition is an act that results in the removal of a right from the patrimony or the encumbrance with limited real rights.
Chapter II
CONDITIONS OF VALIDITY
OF THE JURIDICAL ACT
Article 312. Consent
(1) Consent is the manifestation, externalized, of a person’s will to conclude a juridical act.
(2) Consent is valid if it comes from a person with discernment, is expressed with the intention of producing legal effects and is not vitiated.
(3) The intention to produce legal effects is determined from the person’s statement or conduct, as it was reasonably understood by the other party to the juridical act or, in the case of unilateral juridical acts, by the person to whom the act is intended.
Article 313. Time of occurrence of effects
consent
(1) The manifestation of will that must be received by the other party takes effect when it reaches it, regardless of whether or not it has become aware of its content.
(2) The manifestation of will shall not produce effects if the other party has previously received or at the same time received a declaration of withdrawal.
(3) The validity of the manifestation of will is not affected by the death of the person who expressed his will, or by the establishment of a judicial protection measure on the person, if these events occurred after the expression of the will.
Article 314. Impossibility of determining the essence
consent
The juridical act is considered incomplete if the essence of the consent cannot be determined with certainty either from the externalized expression or from other circumstances of its conclusion.
Article 315. Object of the juridical act
(1) The object of the juridical act is the obligation of the person who concluded the juridical act.
(2) The object of the juridical act must be lawful, be in the civil circuit and be determined or determinable at least in its species.
(3) Future property may also constitute the object of the juridical act.
Article 316. Form of the juridical act
(1) The juridical act may be concluded verbally, in writing or in authentic form.
(2) Form is a condition for the validity of the juridical act only in cases expressly provided for by law.
(3) A juridical act that can be concluded verbally is also considered concluded if the person’s behavior clearly shows the will to conclude it.
(4) Silence is considered an expression of the will to conclude the juridical act in cases provided for by law or by agreement of the parties.
(5) Any amendment to a juridical act must take the form established for that act.
Article 317. Verbal form of juridical act
(1) The juridical act for which the law or the agreement of the parties does not establish a written or authentic form may be concluded verbally.
(2) A juridical act that is enforceable upon its conclusion may be concluded verbally. The exception is juridical acts for which an authentic form is required or juridical acts for which a written form is required for validity.
Article 318. Electronic form of juridical act
(1) A written/authentic juridical act is in electronic form if it is contained in an electronic document that meets the requirements of the law.
(2) The types of electronic signatures that may be applied to an electronic document, the degree of protection of each type and its legal value are determined by law.
(3) A written juridical act is concluded in electronic form if it is signed with the advanced qualified electronic signature of the person concluding the act, unless the agreement of the parties or the law provides for the requirement to use another type of electronic signature.
Article 319. Juridical act concluded through the use of
electronic means
(1) If the juridical act is concluded by using any electronic means, and the person did not conclude it by means of the electronic signature provided for in art. 318 paragraph (3), it is presumed that the consent belongs to that person until he or she contests its existence.
(2) The person may not contest the existence of consent solely on the grounds that it was transmitted by electronic means if he or she accepted the use of that electronic means through a previously concluded juridical act.
(3) In order to demonstrate the existence of the contested consent pursuant to paragraph (1), the interested person may invoke any means of evidence, except witness evidence.
(4) The fact that the juridical act concluded in accordance with this article is not equivalent to a juridical act in written form does not prevent the invocation of clauses in textual form agreed to by the parties to the act.
Article 320. Textual form of information
(1) If the law provides for the textual form for the transmission of information, it must be legible, indicate the name of the person transmitting it and be made on a durable medium.
(2) Durable medium means any instrument that:
a) allows the recipient to store information that is addressed to him personally, in a way that is accessible for future reference for an appropriate period of time, for information purposes; and
b) allows the unchanged reproduction of the stored information.
(3) Durable media include paper, USB memory sticks, CD-ROMs, DVDs, memory cards or computer hard drives, messages sent by electronic mail, as well as others that correspond to paragraph (2).
Article 321. Written form of juridical act
(1) Juridical acts between legal persons, between legal persons and natural persons, and between natural persons must be concluded in writing if the value of the object of the juridical act exceeds 1000 lei, and in the cases provided for by law, regardless of the value of the object.
(2) If, according to the law or the agreement between the parties, the juridical act must be concluded in writing, it may be concluded both by drawing up a single document, signed by the parties, and by an exchange of letters, telegrams, electronic documents, etc., signed by the party that sent them.
(3) If, due to physical disability, illness or other reasons, a person cannot sign a juridical act with his/her own hand, then, based on the power of attorney given by him/her, the juridical act may be signed by another person. The signature of the third party must be legalized by a notary or another person authorized by law, indicating the reason by virtue of which the person who concluded the juridical act could not sign with his/her own hand.
Article 322. Effects of failure to comply with the written form
of the juridical act
(1) Failure to comply with the written form of the juridical act deprives the parties of the right to request, in case of litigation, evidence with witnesses to prove the juridical act.
(2) Failure to comply with the written form of the juridical act shall render it null and void only if this effect is expressly provided for by law or by agreement of the parties.
Article 323. Authentic form of the juridical act
The authentic form of the juridical act is mandatory:
a) if the juridical act has as its object the alienation of immovable property or its encumbrance with limited real rights, except in cases expressly provided for by law;
b) in cases provided for by the agreement of the parties, even if the law does not require authentic form;
c) in other cases established by law.
Article 324. Effects of failure to comply with the authentic form
(1) Failure to comply with the authentic form shall render the juridical act null and void.
(2) If one of the parties has fully or partially executed the juridical act for which an authentic form is required, and the other party evades its notarial authentication, the court has the right, at the request of the party who has fully or partially executed the juridical act, to declare it valid if it does not contain elements that contravene the law. In this case, subsequent notarial authentication of the juridical act is not required.
(3) The party that unjustifiably evaded notarial authentication of the juridical act is obliged to compensate the other party for the damage caused by the delay in authentication.
Article 325. The court decision that
place of juridical act
(1) In cases expressly provided for by law or contract, at the request of the entitled person, the court may issue a judgment which, from the date of finality, takes the place of a juridical act if the debtor refuses, without justification, to conclude the juridical act, and all other conditions of validity are met.
(2) In the cases provided for in paragraph (1), the entitled person is not obliged to present evidence of this refusal to the court.
3) The juridical act concluded in the manner provided for by this article shall be subject to the legal provisions applicable to that act as if it had been concluded, without defects of consent, directly by the parties provided for by the court decision.
(4) The right to the action provided for in paragraph (1) shall expire within 6 months from the date on which the juridical act should have been concluded.
Article 326. Effects of evasion from registration
the juridical act or its effects
(1) If the juridical act is concluded in the form required by law, but the obligated party evades the registration of it or its effects, or if the term established by law for registration has expired, the court, at the request of the interested party, is entitled to order by decision the registration of the juridical act or its effects. In this case, the registration shall be carried out on the basis of the court decision.
(2) The party that unreasonably evaded registration is obliged to compensate the other party for the damage caused by the delay in registration.
Chapter III
NULLITY OF THE JURIDICAL ACT
Article 327. Null and void juridical acts
(1) The juridical act is null and void if the nullity sanctions the violation of a legal provision that protects a general interest (absolute nullity).
(2) The juridical act is voidable if the nullity sanctions the violation of a legal provision that protects a particular interest (relative nullity).
(3) If the nature of the nullity is not expressly provided for and the nature of the protected interest is not clearly evident, the juridical act is voidable.
(4) Unless otherwise provided by law, the nullity of a bilateral or multilateral juridical act may also be established or declared by agreement of the parties.
(5) Grounds for nullity may not be established or suppressed by agreement of the parties.
Article 328. Absolute nullity of a juridical act
(1) The absolute nullity of a juridical act may be invoked, both by way of action and by way of exception, by any person who has a vested and current interest. The court is obliged to establish it ex officio after having heard the opinions of the participants in the process.
(2) Absolute nullity cannot be removed by confirmation by the parties to the act affected by nullity or their successors.
(3) Both the action for the declaration of absolute nullity and the exception to absolute nullity are not subject to prescription. However, actions concerning the application of the effects of absolute nullity pursuant to art. 331 shall be prescribed within 10 years, regardless of whether they are filed together with the action for the declaration of absolute nullity or after the admission of this action.
Article 329. Absolute nullity of protection
of the consumer
(1) In consumer contracts, abusive clauses are null and void, as well as clauses that derogate from legal provisions that are prohibited from derogating from to the detriment of the consumer (protective nullity).
(2) The nullity of protection operates only to the extent that it benefits the consumer.
Article 330. Relative nullity of a juridical act
(1) The relative nullity of a juridical act may be invoked only by the person in whose interest it is established or by his successors, by the legal representative or by the unsecured creditors of the party protected by the indirect action. The court may not invoke it ex officio.
(2) Relative nullity may be covered by the express or tacit will of the person in whose interest the nullity is established. The will to confirm the voidable juridical act must be certain and evident and must be expressed at a time when the person knew or should have known the grounds for the nullity.
(3) For the confirmation of a voidable juridical act, the will does not have to be expressed in the form required for the conclusion of the respective juridical act.
(4) If each party can invoke the nullity of the juridical act or if several persons can request the declaration of nullity, the confirmation of the juridical act by one person does not prevent the others from invoking nullity.
Article 331. Effects of the nullity of a juridical act
(1) A void juridical act is considered, with retroactive effect, to have produced no legal effect from the moment of its conclusion.
(2) The voidable juridical act is valid until the court declares it null and void, but once it is voided, it is considered, with retroactive effect, to have produced no legal effect from the moment of its conclusion.
(3) Real rights acquired on the basis of a null or void juridical act shall be deemed not to have been acquired on that basis. This provision shall also apply to claims or rights to intellectual property acquired on the basis of the juridical act.
(4) The provisions of paragraph (3) do not affect the possible acquisition of the right by usucaption under the terms of the law.
(5) The benefits executed pursuant to the null or annulled juridical act, as well as other enrichments obtained from those benefits, shall be subject to restitution in accordance with the legal provisions on unjustified enrichment.
(6) If, based on a null or annulled juridical act, a right was acquired by registration in an advertising register provided for by law, and the holder in whose favor the right is registered does not consent to the deletion, the acquired right shall be deleted only through the rectification action.
(7) The court cannot pronounce ex officio the effects of nullity even if it has established absolute nullity ex officio.
Article 332. Partial nullity
(1) The legal provisions regarding the nullity of a juridical act shall apply accordingly when only one or more of its clauses are subject to nullity.
(2) The invalid clauses shall entail the invalidity of the juridical act in its entirety only if, due to their absence and despite the completion of its effects according to art. 1082, the purpose for which the juridical act was concluded cannot be achieved.
(3) The nullity of the multilateral juridical act with respect to one of the parties entails its nullity with respect to the other parties if, due to the absence of that party, the purpose for which the other parties concluded the juridical act cannot be achieved.
(4) If the mandatory legal provision provides that the duration of the existence of a right or the production of legal effects by a juridical act cannot exceed a certain term, in case of exceeding, the agreed duration is null and void and is replaced by the maximum term permitted by law.
Article 333. Compensation for damage in case of
of nullity of the juridical act
(1) If a juridical act is null and void or annulled, in whole or in part, a party may request compensation from the other party for the damage suffered due to the nullity if the following conditions are cumulatively met:
a) the injured party did not know and should not have reasonably known the grounds for nullity at the time the injury was sustained;
b) the other party knew or should reasonably have known the grounds for nullity;
c) in breach of the requirements of good faith, the other party allowed the injured party to act in a manner that caused the damage.
(2) The damage subject to compensation is the amount of money that will put the injured party, to the maximum extent possible, in the situation in which it would have been if the juridical act had not been concluded or if the invalid clause had not been included in the juridical act. In particular, the expenses incurred by the injured party in concluding the juridical act and in preparing for the performance of the obligations provided for in the act shall be compensated.
(3) However, damages shall not cover the profit that the injured party expected from the performance of the obligations provided for in the act. If the other party acted with intent or gross negligence, damages shall also cover the loss by the injured party of a reasonable opportunity to conclude a juridical act with a third party.
(4) If the conditions of liability provided for in this article are met, the injured party is not deprived of the right to claim compensation merely because it is the one who invoked the nullity.
(5) If the nullity is based on violence, injury or the fact that a clause is abusive, the injured party may claim damages under this article even if he knew or should reasonably have known the grounds for the nullity at the date of conclusion of the juridical act.
Article 334. Nullity of a juridical act that contravenes the law,
public order or good morals
(1) Any juridical act or clause that is clearly contrary to public order or good morals is void.
(2) The juridical act or clause that contravenes a mandatory legal provision is null and void or voidable if this sanction is expressly provided for by the violated legal provision (express nullity).
(3) The juridical act or clause that contravenes a mandatory legal provision that does not expressly provide for the sanction of nullity is null and void or voidable if this sanction must be applied in order for the purpose of the violated legal provision to be achieved (virtual nullity).
(4) The provisions of this article shall apply to the extent that the violated legal provision does not establish a consequence of its violation other than the nullity of the juridical act or clause.
(5) The violation of the mandatory provision of the normative act subordinate to the law may be invoked as a ground for the nullity of the juridical act only to the extent that the respective provision meets the requirements of art. 1 para. (2) and art. 4.
Article 335. Nullity of the concluded juridical act
by a person in respect of whom
a protective measure is established
court
(1) A juridical act concluded by a person in respect of whom a measure of judicial protection (provisional protection, curatorship, guardianship) is established may be declared null and void by the court if, according to the law or a court decision, the juridical act could be validly concluded in the name of the person only through his provisional protector, curator or guardian. The action for annulment may be brought by the protected person or any of the persons entrusted with his protection.
(2) The person with full legal capacity is obliged to repair the damage caused to the other party by concluding the juridical act declared null and void if it is proven that he knew or should have known that a judicial protection measure was instituted with respect to the other party.
Article 336. Nullity of the concluded juridical act
by a minor who has not reached the age of
age 14
(1) Juridical acts concluded by a minor who has not reached the age of 7 are null and void.
(2) Juridical acts concluded by a minor aged 7 to 14, except for those provided for in art. 28 paragraph (2), are null and void.
(3) The person with full legal capacity is obliged to compensate for the damage caused to the minor unless he proves that he did not know and should not have known that the other party did not have full legal capacity to conclude the juridical act.
Article 337. Nullity of the concluded juridical act
by a person without discernment
(1) Unless otherwise provided by law, a juridical act concluded by a person at a time when he could not be fully aware of his actions or express his will may be declared null and void by the court.
(2) The juridical act is not voidable under the provisions of paragraph (1) if it corresponds to the wishes and feelings of the person and, at the same time:
a) it falls within the category of juridical acts provided for in art. 28 paragraph (2) or other categories of juridical acts which, according to the law or court decision, the protected person could conclude independently;
b) it was concluded on behalf of the person by his authorized representative;
c) was concluded by the protected person with the approval of the temporary protector, curator or guardian or the agent empowered by a future protection mandate or, as the case may be, with the authorization of the family council, the guardianship authority or the court if, according to the law or court decision, the juridical act could be validly concluded only with the respective approval or authorization.
(3) The heir may request the annulment of juridical acts pursuant to the provisions of paragraph (1) only in the following cases:
a) if the proof of the diminution or lack of discernment results from the content of the juridical act itself;
b) if, before the conclusion of the juridical act, a request for the establishment of provisional protection, guardianship or tutelage was submitted or a future protection mandate began to take effect in the name of the protected person.
(4) If the heir, pursuant to the provisions of paragraph (1), requests the annulment of the donation or will, the provisions of paragraph (3) shall not apply.
(5) The term of limitation period in the case of an action for annulment filed by the heir shall run from the moment of opening the inheritance, except in the case when the heir knew or should have known about the conclusion of the juridical act before that date.
Article 338. Preservation of concluded juridical acts
by persons without full capacity
exercise or indiscriminate
(1) The court may uphold juridical acts voidable under Article 335 or Article 337 if the defendant offers an appropriate reduction of his claim or compensation for the damage suffered by the person protected by the voiding.
(2) When applying the provisions of paragraph (1), the court shall take into account whether the juridical act was useful or prejudicial to the person protected by annulment, the composition and value of his or her property, as well as the good or bad faith of the other party to the juridical act.
Article 339. Nullity of the juridical act affected by error
(1) The juridical act concluded on the basis of an essential error may be declared null and void by the court if the other party or the third party recipient of the unilateral juridical act knew or, as the case may be, should have known about this error.
(2) The error is essential if, at the conclusion of the juridical act, there was a false representation regarding:
a) the nature of the juridical act;
b) the substantial qualities of the object of the juridical act;
c) the other party to the juridical act or the third party beneficiary of the juridical act, if their identity or qualities are decisive for the conclusion of the juridical act.
(3) The error concerning the mere reasons for the juridical act is not essential, except in the case where such reasons were considered decisive by the will of the parties.
(4) The error attributable to the person whose consent is flawed cannot serve as a basis for annulling the juridical act. In particular, the juridical act cannot be annulled if the fact on which the error was based could, under the circumstances, have been known with reasonable diligence.
(5) The juridical act shall not be annulled if the error concerns an element in respect of which the risk of error was assumed by the person invoking it or, given the circumstances, should have been assumed by him.
(6) A simple calculation error does not entail the annulment of the juridical act, but only its rectification, unless, having resulted in an error in quantity, it was essential for the conclusion of the juridical act. The calculation error must be corrected at the request of either party.
(7) The party who is the victim of an error may not rely on it contrary to the requirements of good faith.
(8) The legal provisions regarding error shall also apply accordingly when the error concerns the declaration of intent or when the declaration was transmitted inaccurately through another person or by means of distance communication.
Article 340. Adaptation of the juridical act in case of error
(1) If a party is entitled to invoke the voidability of the juridical act due to error, but the other party declares that it wishes to execute or executes the juridical act as it was understood by the party entitled to invoke voidability, the juridical act is deemed to have been concluded as the latter party understood it.
(2) In the case provided for in paragraph (1), after having been informed of the way in which the party entitled to invoke nullity understood the juridical act and before it has obtained the annulment, the other party must, within a maximum period of 3 months from the date on which it was notified or from the date on which the action for declaration of nullity was communicated to it, declare that it agrees with the performance or execute without delay the juridical act, as it was understood by the party in error.
(3) If the declaration was made and communicated to the party in error within the time limit provided for in paragraph (2) or the juridical act was executed as understood by the party in error, the right to obtain annulment for that error is extinguished.
(4) If both parties have committed the same error, the court may, at the request of one of them, adapt the juridical act to the terms to which the parties would have agreed if the error had not been committed.
Article 341. Nullity of a juridical act concluded through fraud
(1) The juridical act whose conclusion was determined by the fraudulent or cunning behavior of one of the parties may be declared null and void by the court even if the perpetrator of the fraud estimated that the juridical act is advantageous for the other party.
(2) If one of the parties conceals certain circumstances, the disclosure of which would have prevented the other party from concluding the juridical act, the annulment of the juridical act may be requested only if, based on the principle of good faith, the other party could have been expected to disclose these circumstances.
(3) The juridical act is also voidable when the fraud comes from the representative, agent or manager of the other party’s affairs.
(4) If the fraud is committed by a third party, the juridical act may be annulled only if it is proven that the other party knew or should have known about the fraud.
Article 342. Nullity of the concluded juridical act
through violence
(1) The juridical act concluded as a result of coercion through physical or psychological violence may be declared null and void by the court even in cases where the violence was exercised by a third party.
(2) Violence is grounds for annulment of the juridical act only if it is demonstrated that it is likely to cause a person to believe that he, his spouse, a relative or another close person or their honor or patrimony are exposed to imminent danger.
(3) For the purposes of this article, there is no violence when its perpetrator did not use any illicit means and the compelled party had a reasonable alternative.
Article 343. Nullity of a juridical act concluded through injury
(1) The juridical act that a person concluded due to a combination of difficult circumstances from which the other party took advantage, under extremely unfavorable conditions, may be declared null and void by the court.
(2) The court may uphold the juridical act if the defendant offers a reduction of his claim or fair pecuniary compensation. The provisions of art. 340 shall apply accordingly.
Article 344. Nullity of the concluded juridical act
in violation of the prohibition to
has a good
(1) The juridical act by which an property was disposed of with respect to which, by law or by the court, or by another authorized body, an interdiction regarding the disposition is established in favor of certain persons, may be declared null by the court at the request of the persons in favor of whom the interdiction is established.
(2) The juridical act may not be annulled on the basis of the provisions of paragraph (1) if the acquirer of the property did not know and should not have known about the prohibition or if the juridical act expressly stipulates that it is concluded under the suspensive condition of the lifting of the prohibition.
Article 345. Extinct prescription period
of the action for annulment of the juridical act
for violation of consent
(1) The entitled person has the right to invoke the voidability of the juridical act for the grounds provided for in Articles 339, 341 and 343 within 6 months from the date on which he learned or should have learned about the grounds for voidability.
(2) Annulability on the grounds provided for in art. 342 may be invoked within 6 months from the date on which the violence ceased.
Article 346. Compensation for the damage caused
through a breach of consent
(1) The party who has the right to request the annulment of the juridical act on grounds of error, fraud, violence or injury may request compensation for the damage caused thereby, even if the right to request the annulment has become time-barred or if he confirmed the voidable juridical act, provided that the other party to the juridical act knew or should reasonably have known the grounds for the annulment at the time of its conclusion.
(2) In the case provided for in paragraph (1), the legal provisions regarding the payment of compensation in case of non-performance of obligations shall additionally apply.
(3) The rights provided by law of the party affected by fraud, violence or injury cannot be excluded or limited by juridical act, under penalty of absolute nullity.
(4) The rights provided by law of the party affected by the error may be excluded or limited by juridical act, except where this is contrary to good faith, in which case the exclusion or limitation is void.
(5) If the victim of error, malice, violence or injury has, based on this circumstance, both rights based on the provisions of this chapter and rights based on the failure to perform the obligations resulting from the juridical act, he may choose the category of rights to which he resorts.
Chapter IV
EFFICIENCY OF JURIDICAL ACTS
Section 1
provided
Article 347. Conditional legal effects
(1) The juridical act may provide that, upon the occurrence of a future event whose realization is uncertain (condition), certain or all of its legal effects will occur (suspensory condition) or will lapse (resolutory condition).
(2) The condition may also depend on an event that has occurred but is not yet known to the parties.
Article 348. Null condition
A condition that is contrary to mandatory legal provisions, public order or good morals, as well as a condition the fulfillment of which is impossible, unless it was stipulated for the situation when it becomes possible, is subject to nullity. The legal effect that depends on such a condition is also subject to nullity.
Article 349. Positive condition
(1) If the condition of the occurrence of a specific event within a certain period of time was stipulated, the condition is considered unfulfilled if this period has expired and the event has not occurred.
(2) If the term is not determined, the condition may be fulfilled at any time. The condition may be recognized as unfulfilled when it is obvious that the subsequent occurrence of the event is impossible.
Article 350. Negative condition
(1) If the condition of non-occurrence of a specific event within a specified period has been stipulated, the condition shall be considered fulfilled even before the expiry of this period if it is obvious that the subsequent occurrence of the event is impossible.
(2) If the term is not determined, the condition is considered fulfilled only when it is obvious that the event will not occur.
Article 351. Inadmissibility of influence over
the fulfillment of the condition
(1) A person who has concluded a juridical act whose effect depends on a condition shall not have the right, until the condition is fulfilled, to perform actions capable of preventing the performance of his obligations.
(2) If the condition is met, and the person has already taken the actions referred to in paragraph (1), he is obliged to compensate the other party for the damage thus caused.
Article 352. Suspensive condition
(1) The legal effects that depend on a suspensive condition occur at the time that condition is fulfilled or at another later time expressly provided.
(2) The acts concluded by the acquirer under a suspensive condition are valid and, if the condition is fulfilled, take effect from the date of their conclusion.
(3) The acquirer may perform, even before the condition is fulfilled, any acts to preserve his right.
(4) Acts concluded with third parties by the person who created or transferred a right under a suspensive condition before the condition is fulfilled are enforceable against the acquirer under a suspensive condition, with the exception of acts:
a) concluded with third parties who knew or should reasonably have known about the acquirer’s entitlement under a suspensive condition; or
b) in the case of rights which, according to the law, are acquired by registration in an advertising register, concluded with third parties who have registered their right after the provisional registration of the acquirer’s right under suspensive condition.
(5) If the suspensive condition has not been met, the legal provisions on unjustified enrichment shall apply to the services performed under that condition.
Article 353. Resolving condition
(1) The legal effects that depend on a resolutory condition shall cease upon the fulfillment of that condition, in the case of contractual relationships, the legal provisions regarding the effects of resolution shall apply.
(2) If a right was acquired under a resolutory condition, in case of fulfillment of the condition, the established right is extinguished by right, and the transferred right passes back by right on the date of fulfillment of the condition, but only if at that time the acquirer was the holder of the right or had the power to dispose of it.
(3) The third party acquiring the right acquired under a resolutory condition acquires it free from that condition:
a) if he/she has not expressly accepted it;
b) in the case of rights which, according to the law, are acquired by registration in an advertising register, if the right was not provisionally registered.
Article 354. Condition of rescission with retroactive effect
(1) If the juridical act or the law expressly states that a certain resolutory condition operates retroactively, from the moment of conclusion of the juridical act, in case of fulfillment of the condition, the legal provisions regarding unjustified enrichment shall apply to the services performed under that condition.
(2) However, the clause according to which the right acquired under a resolutory condition is terminated retroactively, from the moment of conclusion of the juridical act, is null and void, except in the case where the right, according to the law, is acquired through provisional registration in an advertising register.
Article 355. Good faith upon the occurrence of the condition
(1) If the occurrence of the condition was withheld in bad faith by the party for whom the occurrence of the condition is disadvantageous, the condition is deemed to have occurred.
(2) If the party for whom the occurrence of the condition is advantageous contributed in bad faith to the occurrence of the condition, the condition shall not be considered to have occurred.
Article 356. Waiver of condition
(1) The party in whose exclusive interest the condition was stipulated is free to unilaterally waive it as long as the condition has not been fulfilled.
(2) Waiving the condition makes the obligation or other legal effect unconditional.
Section 2
Ineffective juridical act
Article 357. Ineffective juridical acts
(1) If, according to the law, the juridical act, without being null or voidable, does not produce, in whole or in part, its legal effects, it is, in that part, ineffective.
(2) The juridical act becomes effective as soon as the ground for ineffectiveness is removed.
(3) The ineffectiveness of a juridical act may be invoked, both by way of action and by way of exception, by any person who has a vested and current interest. The court is obliged to invoke it ex officio after having heard the participants in the process.
(4) Both the action for the declaration of the ineffectiveness of the juridical act and the exception invoking the ineffectiveness are imprescriptible unless otherwise provided by law. However, actions for the application of the effects of the ineffectiveness of the juridical act shall be subject to extinction within 10 years, regardless of whether they are filed together with the action for the declaration of ineffectiveness or after the admission of this action.
Article 358. Effects of the juridical act of disposition unentitled person
(1) No one may transfer or create more rights than he himself has.
(2) If, neither on the date of the conclusion of the juridical act of disposition nor on the date when the right disposed of by the act must be transmitted or constituted, the transmitter is not the holder of that right nor does he have the power to dispose, the juridical act is valid, but does not produce the legal effect of transmission or, as the case may be, of constituting the right in favor of the acquirer except under the conditions of paragraphs (3) and (4).
(3) The transferor is obliged to remove the ineffectiveness and to ensure the legal effect of the transmission or, as the case may be, of the establishment of the respective right by its holder in favor of the acquirer (obligation to give). The transferor’s obligation to give is considered to be executed by the acquisition of the right by him, by the ratification of the juridical act by the holder, as well as by any other means, direct or indirect, which transmits or, as the case may be, constitutes the right in favor of the acquirer.
(4) Unless the law or the will of the parties provides otherwise, the right that has been disposed of is transferred or constituted by right in favor of the acquirer from the moment of acquisition of the right by the transferor or, as the case may be, of ratification of the juridical act of disposition by the holder.
(5) The provisions of this article shall also apply accordingly in the case of the conclusion of a juridical act of disposal of the common property by a co-owner without the consent of the other co-owners, as well as in other cases when the transferor is not the sole holder of the right disposed of by the act.
Article 359. Exercise of non-existent right
A unilateral juridical act does not produce the legal effects intended by its author to the extent that the act exercises a subjective right that does not exist or for the exercise of which all the conditions provided by the law or the juridical act are not met.
Article 360. Third party consent for conclusion of the juridical act
(1) If the effect of a juridical act depends on the consent of a third party, the consent or refusal may be expressed both towards one party and the other.
(2) Consent does not require the forms established for the juridical act unless the law provides otherwise.
(3) The prior consent of the third party is revocable until the conclusion of the juridical act unless otherwise stated in the legal relationship on the basis of which the prior consent was given. The revocation may be expressed both towards one party and towards the other.
(4) Subsequent consent (ratification, confirmation) for the conclusion of the juridical act, in the absence of express legal provisions to the contrary, has retroactive effect, from the moment of conclusion of the juridical act.
(5) Retroactivity does not affect the acts of disposition that the person who consented concluded with third parties prior to the expression of consent, nor the rights acquired by third parties pursuant to those acts, nor does it affect acts of forced performance, seizure or measures taken by the insolvency administrator prior to the expression of consent.
(6) The provisions of this article apply in particular to consent in the form of:
a) the consent granted by the parent, curator, guardian or other guardian;
b) authorization granted by the family council, guardianship authority or court;
c) ratification by the representative in the cases provided for in art. 370;
d) ratification of the juridical act of disposition in the cases provided for in art. 358.
(7) The provisions of this article shall apply accordingly to the approval granted by the competent body of the legal person to juridical acts concluded on its behalf.
Article 361. The right to revoke an ineffective juridical act
(1) If the party who concluded the juridical act without the necessary consent of the third party declared, in bad faith, that such consent had been obtained or that it was not necessary, the other party may revoke the juridical act until the necessary consent is communicated to him, except in the case where he concluded the juridical act knowing the absence of consent.
(2) If the third party has refused to grant the necessary consent, either party may revoke the juridical act.
(3) If the other party addresses the person who concluded the juridical act or the third party with a request to present the necessary consent of the third party, and the consent is not communicated to the other party within 4 weeks from the date of receipt of the request, unless the law or the juridical act provides for another term, it is considered that the third party has refused to grant the necessary consent.
(4) The entitled party shall exercise the right of revocation provided for in paragraph (1) or (2) by notification addressed to the other party. If the juridical act has been revoked in accordance with the provisions of this article, it shall be deemed not to have been concluded.
(5) The provisions of this article do not apply to the juridical act of disposition of the unjustified one, provided for in art. 358.
Chapter V
REPRESENTATION AND POWER OF ATTORNEY
Article 362. Representation
(1) A juridical act may be concluded personally or through a representative. The powers of the representative result from the law, the juridical act or the circumstances in which he acts.
(2) The juridical act concluded by a person (representative) on behalf of another person (represented) within the limits of the powers of attorney gives rise to, modifies or extinguishes the civil rights and obligations of the represented person.
(3) If the juridical act is concluded on behalf of another person, the party with whom the representative contracted may not be objected to a lack of powers of attorney if the representative created such circumstances by virtue of which this party assumed in good faith the existence of such powers of attorney.
(4) If, when concluding a juridical act, the representative does not present his powers of attorney, the act shall produce direct effects for the represented person only if the other party should, based on the circumstances in which the act was concluded, have assumed the existence of representation. The same rule shall apply even when, for the other party, the person of the contracting party is of no importance.
(5) The conclusion by a representative of a juridical act which, by its nature, is to be concluded directly by the contracting person or whose conclusion by a representative is expressly prohibited by law is prohibited.
Article 363. Representative subject to a measure
judicial protection in the form of protection
provisional or guardianship
The juridical act concluded by the representative is valid even if the representative is subject to a judicial protection measure in the form of temporary protection or guardianship.
Article 364. Delegation of powers and substitution
REPRESENTATIVE
(1) The representative must personally conclude the juridical acts for which he is authorized. He may delegate the powers to a third party (delegation of powers) or assign the powers to a third party (substitution of the representative) in the event that he is authorized to represent or in other cases provided for by law. In case of doubt, it is presumed that the representative has delegated his powers, but has not assigned them.
(2) Even if he has delegated the powers to a third party, the representative retains the same powers, having the right to delegate them to another third party. Both the principal and the representative may exercise the right to revoke the powers granted to the third party by delegation.
(3) The representative who has delegated or assigned powers to a third party is obliged to bring this fact to the attention of the represented person as soon as possible, as well as the necessary information about the third party. In case of failure to fulfill this obligation, the representative is liable for the actions of the third party as for his own actions.
Article 365. Viciousness of consent, obligation
knowledge
(1) When declaring the nullity of a juridical act concluded by a representative due to a defect in consent, only his consent shall be taken into account.
(2) If the representative authorized by power of attorney acted in accordance with certain instructions of the principal, the latter shall not have the right to invoke the representative’s ignorance of circumstances that the principal knew or should have known.
Article 366. Powers of representation
(1) The granting of powers of attorney is carried out by expressing the will towards the person granting the power of attorney or towards the third party in respect of whom the representation will take place.
(2) The declaration granting the powers of attorney need not be made in the form required for the juridical act to be concluded on the basis of the powers of attorney. This provision shall not apply if the protective role of the formal requirements is thereby annihilated.
Article 367. Duration of powers of attorney
(1) If granted by a declaration addressed to a third party, the powers of attorney remain valid for the latter until their revocation by the person who granted them.
(2) If a person, by special communication addressed to a third party or by public communication, has announced that he is empowering another person with the right to represent him, the latter has the right of representation in the first case against the indicated third party, and in the second case against any other person. The powers of representation are preserved until revocation in the order in which they are granted.
Article 368. Modification or revocation of powers of attorney
Third parties must be notified of the modification or revocation of the powers of attorney by appropriate means. In case of failure to comply with this requirement, the modification or revocation of the powers of attorney cannot be relied upon against third parties, except in cases where it is proven that they knew or should have known about the modification or revocation of the powers of attorney at the time of concluding the juridical act.
Article 369. The acting representative
in one’s own name
(1) If the representative, although having powers of attorney, concludes the juridical act in his own name or acts in another way in which he does not indicate to the third party that he concludes the act in the name of the represented, the juridical act produces legal effects between the representative and the third party. That juridical act does not produce legal effects between the represented and the third party, with the exceptions expressly provided for by law.
(2) If the representative concludes the juridical act on behalf of a representative whose identity is to be disclosed later, but does not disclose it within a reasonable time after receiving the third party’s request, the representative shall be deemed to have concluded the juridical act in his own name.
Article 370. Conclusion of a juridical act without
powers of representation
(1) If a person concludes a juridical act on behalf of another person without having the power of representation or exceeding the powers, the juridical act shall be effective for the represented person only if the latter subsequently ratifies it. In this case, the juridical act may be ratified both expressly and by conclusive actions. Until ratification, the juridical act shall constitute an ineffective juridical act in relation to the represented person.
(2) If the other party addresses the representative with a request for ratification of the act, ratification may be made only by an express declaration addressed directly to this party. If the declaration of ratification is not sent to the other party within 2 weeks from the date of receipt of the request, it shall be considered that the representative has refused to ratify the juridical act.
(3) Until ratification, the party that concluded the juridical act with the representative lacking powers, if he did not know about the lack of powers, may renounce the juridical act by a declaration addressed to the representative or representative.
(4) The provisions of this article shall also apply if the administrator or other representative of a legal person concludes the juridical act without the appropriate approval, mandatory according to law, from the competent body of the legal person, unless the law provides for another consequence.
Article 371. Liability of the representative who
acted without authority
(1) The person who concluded a juridical act as a representative, if he cannot prove that he had powers, is obliged, at the choice of the other party, to execute the juridical act or to repair the damage caused if the represented person refuses to ratify the juridical act.
(2) If the representative was unaware of the lack of powers of attorney, he is only obliged to compensate for the damage caused by the fact that the other party was convinced that the powers of attorney existed and only to the extent that the validity of the juridical act was of interest to the other party.
(3) A representative who acted without a power of attorney shall be exempt from liability if the other party knew or should have known of the lack of a power of attorney. The representative shall not be liable even in cases where he was subject to a judicial protection measure in the form of temporary protection or guardianship, except in cases where he acted with the consent of the temporary protector or guardian.
Article 372. Juridical act concluded with oneself (counterparty)
(1) The representative does not have the right to conclude juridical acts on behalf of the represented with himself, neither in his own name nor as a representative of a third party, except in the following cases:
a) the principal has permitted the representative to act in such a manner;
b) the representative has disclosed that he will act in such a manner, and the principal has not objected within a reasonable time;
c) the principal knew or should reasonably have known in some other way that the principal would act in such a manner and did not object within a reasonable time;
d) in other cases provided for by law.
(2) The representative may request the declaration of nullity of the juridical act if, at the time of the conclusion of the juridical act, the third party knew or should reasonably have known that the representative was in breach of the provisions of paragraph (1). This action shall be time-barred within 6 months.
Article 373. Plurality of representatives
(1) If the representative has authorized several representatives with respect to the same juridical act, any of them may conclude the act independently, unless the need for the consent of the other representatives expressly results from the law or from the act by which powers were granted to the representative concluding the juridical act.
(2) The provisions of paragraph (1) shall apply regardless of whether the representatives were appointed or empowered by the same act or by different acts.
Article 374. Power of attorney
(1) A power of attorney is a document drawn up to certify the powers conferred by the principal to one or more representatives.
(2) The power of attorney issued for the conclusion of juridical acts in authentic form must be notarized.
(3) Powers of attorney authenticated, according to the law, by local public administration authorities are equivalent to powers of attorney authenticated by a notary.
(4) Powers of attorney issued by:
a) persons undergoing inpatient treatment in hospitals, sanatoriums and other military medical institutions, if they are authenticated by the heads of these institutions, by the deputies for medical matters or by the chief physician, and in his absence – by the doctor on duty;
b) military personnel, and in the deployment points of military units, institutions or military educational institutions where there are no notary offices or other bodies that perform notarial acts, of employees and members of their families and military personnel, authenticated by the commander (head) of the respective unit or institution;
c) persons serving sentences in places of deprivation of liberty, authenticated by the head of the respective institution;
d) adults who are in social protection institutions for the population, authenticated by the administration of the respective institution or by the head of the respective social protection body.
(5) Powers of attorney issued for the receipt of salary or other rights at work, pensions, allowances, scholarships, correspondence, with the exception of parcels and money orders, may be authenticated by the administration of the place of work or study of the person issuing the power of attorney or by the administration of the medical institution in which the person issuing the power of attorney is hospitalized.
(6) The legal provisions regarding the power of attorney shall also apply if the powers of attorney are included either in a contract to which the represented person is a party, including in a contract between the represented and the representative or in a contract between the represented and a third party, or in the minutes of the competent body of the represented person, unless otherwise provided by law.
(7) The legal provisions regarding power of attorney shall apply accordingly if the same power of attorney is issued by several persons.
(8) If the power of attorney was issued to a legal person without indicating the name of the representative or employee of that person who will exercise the powers, the powers shall be exercised by the administrator of that person or by the person designated by him.
Article 375. Subsequent power of attorney
(1) The person to whom the power of attorney is issued (initial power of attorney) may issue a power of attorney delegating powers or substituting the representative in accordance with Art. 364 (subsequent power of attorney).
(2) In all cases, the subsequent power of attorney issued by a natural person must be notarized even if the initial power of attorney is not authenticated.
(3) The representative to whom the power of attorney was issued according to art. 374 paragraph (5) may not issue a subsequent power of attorney.
(4) The person to whom the subsequent power of attorney is issued may issue a new subsequent power of attorney only if this right is expressly stipulated in the initial and subsequent power of attorney.
Article 376. Term of power of attorney
(1) If the term of validity is not indicated in the power of attorney, it shall be valid for 3 years from the date of its preparation. The term of validity may also be indicated by stipulating a condition upon the fulfillment of which the power of attorney shall terminate.
(2) A power of attorney in which the date of preparation is not indicated is null and void.
(3) The power of attorney issued for the conclusion of juridical acts outside the Republic of Moldova and notarized is valid until its revocation by the person who issued it.
Article 377. Termination of the validity of the power of attorney
(1) The validity of the power of attorney shall cease in the event of:
a) the expiration of the term or the fulfillment of the extinction condition;
b) revocation by the person who issued it or, if it is issued by several persons, revocation by any of them;
c) the renunciation of the person to whom it is released;
d) dissolution of the legal person that issued the power of attorney;
e) dissolution of the legal person to which the power of attorney is issued;
f) the death of the natural person who issued the power of attorney, his/her declaration as missing or the establishment of a judicial protection measure in his/her regard, unless the law provides otherwise;
g) the death of the natural person to whom the power of attorney is issued, his/her declaration as missing or the establishment of a judicial protection measure in his/her regard.
(2) The person who issued the power of attorney may revoke it at any time, and the person to whom the power of attorney is issued may renounce it at any time. Any clause to the contrary shall be null and void.
(3) Once the power of attorney ceases to be valid, the validity of the subsequent power of attorney ceases to be valid.
Article 378. Irrevocable power of attorney
(1) For the purpose of executing or guaranteeing the performance of present or future obligations of the principal or of a third party towards the principal or towards the persons in whose name or interest the principal acts, if the obligation is assumed by a business, the principal may indicate in the power of attorney that it cannot be revoked before the expiry of the term or the fulfilment of the extinction condition or may indicate that it can be revoked only under certain conditions (irrevocable power of attorney). In this case, the provisions of art. 377 para. (1) letter b) and para. (2) do not apply.
(2) However, the irrevocable power of attorney may be revoked after the obligation for the performance or guarantee of which it was issued has been extinguished.
(3) If the representative exercises the powers contrary to the purpose or there is a danger of such exercise, the representative may request the court to pronounce the revocation of the irrevocable power of attorney.
Article 379. Information about revocation
and termination of the power of attorney
(1) The person who issued the power of attorney is obliged to inform the person to whom the power of attorney was issued and the third parties known to him with whom the representative was to contract about the revocation and termination of the power of attorney. The same obligation applies to the successors or guardians of the person who issued the power of attorney in the cases provided for in art.377 para.(1) let.d) and f).
(2) If the person who issued the power of attorney in written or authentic form did not indicate therein the identity of the third parties with whom the representative was to contract, he may inform the third parties about the revocation of the power of attorney by requesting the notary to register the declaration of revocation in the register of powers of attorney.
(3) The same right to inform third parties through the power of attorney register, requesting the notary to record information about the termination of the power of attorney, is enjoyed by:
a) the person to whom the power of attorney was issued or, as the case may be, his successors – in the cases provided for in art. 377 para. (1) letters c), e) and g);
b) the successors or, as the case may be, the guardian of the person who issued the power of attorney – in the cases provided for in art. 377 para. (1) let. d) and f).
(4) Third parties shall be deemed to have been informed on the working day immediately following the date of registration of the declaration or information provided for in paragraph (2) or, respectively, paragraph (3), unless they have been informed earlier by another means.
(5) The manner of keeping, operating the records, amendments, deletions and access of third parties to the information in the register of powers of attorney shall be established by the Government.
Article 380. Publicity of revocation or termination
on another basis of the power of attorney
(1) In order to inform third parties, the notary who is requested to authenticate the revocation of a power of attorney is obliged to immediately record the information about the revocation in the register of powers of attorney.
(2) The notary who authenticates the act for the conclusion of which the power of attorney was given is obliged to check in the register provided for in paragraph (1) whether that power of attorney has been revoked or whether information about other grounds for termination of the power of attorney has been recorded.
(3) The provisions of paragraphs (1) and (2) are also applicable to authentications carried out by diplomatic missions and consular offices of the Republic of Moldova.
Article 381. Effects of termination of power of attorney
(1) Juridical acts concluded by the representative until the moment when he learned or should have learned about the termination of the power of attorney shall remain valid for the representative and his successors, except in the case where they prove that the other party knew or should have known that the power of attorney had terminated.
(2) If a third party is presented with a power of attorney, the termination of which he did not know and should not have known, the termination of the power of attorney is not enforceable against the third party, and the juridical act concluded by the representative with the third party remains valid for the representative and his successors.
(3) Upon termination of the power of attorney, the person to whom the power of attorney is issued or his/her successors are obliged to immediately return the power of attorney.
Article 382. Commercial representation
(1) The commercial representative is the person who independently and permanently represents the interests of the entrepreneur when concluding juridical acts in order to manage the business.
(2) The simultaneous commercial representation of the different participants in the conclusion of the juridical act is allowed only if there is an express agreement between the parties to this effect and in other cases provided for by law, the commercial representative being required to perform the duties with the diligence of a good owner.
(3) The commercial representative is entitled to demand payment of the agreed remuneration, as well as compensation for the expenses of executing the power of attorney in equal shares from the persons represented concurrently under the conditions of paragraph (2), unless otherwise provided by the contract.
(4) Commercial representation is carried out on the basis of a contract, concluded in writing, indicating the powers of the representative, and in the absence of such powers, also on the basis of a power of attorney.
(5) The commercial representative is obliged not to disclose confidential information that has become known to him as a result of the representation, even after the termination of the commercial power of attorney.
(6) The specifics of commercial representation in certain areas of entrepreneurial activity are established by law.
Title IV
DEADLINES
Chapter I
CALCULATION OF THE TERM
Article 383. Establishment of the term
(1) The term is established by law, court decision or by agreement of the parties.
(2) Regardless of the basis for the appearance, the term shall be calculated according to the rules stipulated in this title.
Article 384. How to determine the term
The deadline is established by indicating a calendar date, a period, or by referring to a future event that is certain to occur.
Article 385. Beginning of the term
(1) If the beginning of the term is determined by an event or moment in time that will occur during the day, then the day of the occurrence of the event or moment shall not be taken into account when calculating the term.
(2) If the beginning of the term is determined by the beginning of a day, this day shall be included in the term. The rule also extends to the day of birth when calculating age.
Article 386. Different modalities of the term
(1) Half a year or semester means 6 months, quarter – 3 months, half a month – 15 days, decade – 10 days.
(2) If the term is stipulated by a period and a fraction of this period, the fraction shall be calculated last.
(3) If the beginning, middle or end of the month is indicated, the first, fifteenth or, respectively, the last day of the month is taken into account.
Article 387. Calculation of one-year terms
and for a month
If the terms of a year and a month are calculated without taking into account its uninterrupted flow, it is considered that the month has 30 days and the year – 365 days.
Article 388. Expiration of the term
(1) The term established in weeks, months or a period comprising several months (years, semesters, quarters) expires, in the case provided for in art. 385 paragraph (1), on that day of the last week or the last month which, by its name or number, corresponds to the day on which the event or the moment in time in question occurred, and in the case provided for in art. 385 paragraph (2), it expires on that day of the last week or the last month which precedes the day on which, by its name or number, corresponds to the day on which the term began to run.
(2) If the last month does not have the respective date determined according to paragraph (1), the term expires on the last day of the month.
(3) If it has been established that a certain term lasts until a certain day, it is presumed that the term also includes that day.
(4) The term expires at midnight on the last day of the term. If the action must be performed at an organization, the term expires at the time when this organization, in accordance with the established norms, ends its working hours.
(5) If it is shorter than one day, the term shall expire upon the expiry of the respective time unit. The second provision of paragraph (4) shall apply accordingly.
(6) Documents submitted to post or telegraph offices by midnight on the last day of the deadline shall be considered submitted on time. The transmission of the text of the document by teletype, fax or other means of communication is equivalent to submission by post.
Article 389. Expiration of the term on a day of rest
If the last day of the term is a Sunday, Saturday or a day which, in accordance with the law in force, is a day of rest at the place of performance of the obligation, the term expires on the next working day.
Article 390. Extension of the term
In the event of an extension, the new term is calculated from the moment the previous term expires.
Chapter II
EXTINCTIVE LIMITATION
Article 391. General term of limitation period
(1) The general term within which a person may defend his or her violated right by filing a lawsuit in court is 3 years.
(2) Actions regarding the defense of personal non-property rights shall be prescribed only in cases expressly provided for by law.
Article 392. Special periods of extinction of prescription
(1) Actions for compensation for damage caused by violation of the right to a trial within a reasonable time or the right to execution of court decisions within a reasonable time shall be prescribed within 6 months.
(2) Actions regarding:
a) real rights that are not declared by law imprescriptible or are not subject to another limitation period;
b) repairing the damage caused to the environment.
Article 393. Prohibition of changing the term
of limitation period or of the mode
calculation
(1) Except in cases provided for by law, any clause derogating from the legal provisions regarding the limitation period, including by modifying the duration of the limitation period or the method of calculation or by waiving the right to invoke the limitation period, is null and void.
(2) However, within the limits and conditions provided by law, under penalty of absolute nullity, the legal provisions regarding the extinction of prescription may be derogated from, by express written clause, by modifying:
a) the duration of the limitation period;
b) the course of the limitation period by fixing its beginning or modifying the legal grounds for its suspension or interruption, as the case may be.
(3) Derogations from the legal provisions regarding the limitation period shall apply only to the extent that the modified limitation period expires in at least one year and at most until the expiration of the maximum duration calculated according to art. 404.
(4) Any clause by which, either directly or indirectly, an action would be declared imprescriptible, although, according to the legal provisions, it is prescriptible, or conversely, an action declared imprescriptible by the legal provisions would be considered prescriptible is prohibited.
(5) The legal provisions regarding the limitation period may not be derogated from pursuant to paragraph (2) to the detriment of the consumer.
Article 394. Application of the limitation period
The action for the defense of the violated right is rejected on the basis of the expiration of the limitation period only if the person in whose favor the prescription period expired, the person’s creditors or any other person with a legitimate interest has raised the exception of lateness according to the Code of Civil Procedure.
Article 395. Beginning of the term of limitation period
(1) The limitation period begins to run from the date on which the right to action arises. The right to action arises on the date on which the person learned or should have learned of the violation of the right.
(2) If the subjective right is affected by a suspensive term or a suspensive condition, the limitation period term begins to run from the date of the expiration of the term or the fulfillment of the condition.
(3) In legal relations in which the term for the performance of the obligation is not stipulated or in which performance may be requested at any time, the term of limitation period begins to run from the date when the creditor requested performance; if, according to the content of the obligation, the debtor benefits from a suspensive period from the request, the provisions of paragraph (2) shall apply.
(4) In actions for compensation for damage, the limitation period begins to run from the date when the injured party knew or should have known both the type of damage and the person responsible for it.
(5) Unless otherwise provided by law, in the case of an action for nullity subject to extinction, the extinction limitation period begins to run from the date on which the entitled party, his legal representative or the person called upon by law to approve his acts became aware or should have become aware of the grounds for nullity.
(6) Where a debtor is obliged to make successive payments, the right to action with respect to each of these payments shall be extinguished by a separate limitation period, even if the debtor continues to perform one or another of the payments due.
(7) In the case of a continuing obligation not to do, the right of action, subject to a separate limitation period, arises in relation to each breach.
(8) The limitation period for the right to bring an action for the restitution of unjust enrichment shall begin to run from the date on which the creditor became aware or should have become aware of the existence of both his right to restitution and the person obliged to make restitution. The provisions of this paragraph shall apply accordingly to the action based on the management of business without a mandate.
(9) The right to terminate for non-performance of the obligation or reduction of the correlative obligation shall expire on the date of expiration of the obligation whose non-performance gives rise to the termination or reduction of the correlative obligation.
(10) The limitation period for the right to bring an action regarding the legal effects of the resolution or revoked donation begins to run from the date on which the resolution or, as the case may be, the revocation occurred, and if, pursuant to the law or the contract, the benefits must be made at a later date – the limitation period begins to run after that date.
(11) The limitation period for the right to action for adjustment of the contract or for termination for exceptional change of circumstances begins to run from the date on which the debtor knew or should have known of the occurrence of the exceptional change of circumstances.
(12) The actions provided for in paragraphs (7), (8), (10) and (11) are subject to the general limitation period, with the exception provided for in art. 328 paragraph (3) second sentence.
Article 396. Extinct prescription in the case of law
of regression
(1) The limitation period for the right to take action in recourse expires on the date on which the limitation period for the right to take action of the original creditor against the debtor pursued in recourse would have expired.
(2) However, the limitation period for the right to recourse may not expire earlier than 6 months from the date on which the right to recourse arose or from the date on which the initial creditor brought the action against the person entitled to recourse, whichever is earlier.
(3) The provisions of paragraph (2) shall not apply if the person entitled to recourse could reasonably have objected to the initial creditor the expiry of the limitation period of the claim against the debtor against whom the person is acting in recourse.
(4) The provisions of this article shall apply accordingly if, instead of acting in recourse on the basis of special legal provisions, the person entitled to recourse acts against the debtor on the basis of the legal provisions on unjust enrichment or business management.
(5) The provisions of this article shall not apply where the person is entitled to recourse under the enforcement based on an autonomous personal guarantee which he has assumed towards the creditor, as well as in other cases where he was obliged in such a way that he had to enforce independently of the extinction of the creditor’s right of action against the debtor. In such cases, the corresponding provision of art. 395 shall apply.
Article 397. Effect on the limitation period
of the assignment of the claim or of the takeover
debt
The assignment of the claim or the assumption of the debt without the consent of the old debtor does not affect the course of the limitation period.
Article 398. Suspension of the running of the term
of limitation period
(1) The running of the limitation period shall be suspended if:
a) the filing of the action is impossible due to an impediment beyond the creditor’s control and if he could not reasonably have been required to avoid or overcome the impediment or its consequences;
b) the performance of obligations is postponed (moratorium);
c) the creditor or debtor is part of the armed forces on the war footing;
d) the creditor is a minor or subject to a judicial protection measure and does not have a representative or guardian, except in cases where the creditor has the capacity to exercise legal proceedings regarding the violated right;
e) the creditor or debtor has died and no person has been established as an heir or as a person empowered to act on behalf of the estate (executor of the will who has powers of administration, custodian or administrator of the estate appointed by the notary or insolvency administrator of the estate);
f) the activity of the judicial authorities whose competence lies in resolving the dispute between the parties is suspended;
g) the creditor and the debtor negotiate on the right or the circumstances from which a claim regarding that right could arise;
h) the creditor and the debtor negotiate on the mediation of the right or circumstances;
i) the parties are, under the terms of the law, in a mediation process regarding the right or the circumstances from which a claim regarding that right could result.
(2) The course of the limitation period shall be suspended only if the grounds for suspension indicated in paragraph (1) arose or continued during the last 6 months of the limitation period term, and if this term is 6 months or shorter – within it.
(3) The running of the term of limitation period shall continue from the date of cessation of the circumstances that serve as grounds for suspending the course of the limitation period. The term running during the period in which the course of the limitation period is suspended shall not be included in the term of limitation period. The remaining term shall be extended up to 6 months, and if the term of limitation period is shorter than 6 months – up to its duration.
(4) A party shall not negotiate within the meaning of paragraph (1) letters g) and h) if it does not respond to the invitation to negotiate or expressly refuses to negotiate. The negotiation shall cease on the date of the last communication made by the party in whose favor the limitation period is running or on the date on which one of the parties has communicated to the other that it refuses to continue the negotiations.
(5) The course of the limitation period for the defendant’s right to recourse against a third party shall be suspended from the moment the third party is brought in as an accessory intervener and until the finality of the court decision pronounced against the defendant, the performance of which will entitle the defendant to recourse.
Article 399. Suspension of the limitation period
extinctive in the case of family relationships
The course of the limitation period is suspended:
a) for applications between spouses – during the marriage;
b) for requests between parents and children – until the children reach the age of majority;
c) for requests between guardians, curators or other persons exercising a protection measure and persons under their guardianship or trusteeship or under another protection measure – during the duration of the guardianship, trusteeship or other protection measure.
Article 400. Suspension of prescription in the case of
the administration of another’s property
people
The limitation period shall not begin to run and the one that has begun shall be suspended between the person who, by virtue of the law, a court decision or a juridical act, administers the property of another person and the person whose property are so administered, as long as the administration has not ceased and the accounts have not been given and approved. The provisions of this article shall also apply to the action of the legal person against its administrator.
Article 401. Interruption of the course of the limitation period
(1) The course of the limitation period is interrupted:
a) by a voluntary act of performance or by the recognition, in any other way, express or tacit, of the right whose action is prescribed, made by the person in whose favor the prescription runs. Acts of tacit recognition constitute partial performance of the obligation, payment, in whole or in part, of interest or penalties, provision of a guarantee, request for a payment term, declaration of compensation and other such manifestations that undoubtedly attest the existence of the right of the person against whom the prescription runs;
b) by submitting, in the established manner, a request for summons, arbitration, a request for the issuance of a court order or another request to the competent judicial body;
c) by submitting, in the established manner, a request for admission of the claim within the insolvency process, as well as a request for intervention within the ongoing forced performance procedure initiated by other creditors;
d) in other cases provided for by law.
(2) After the interruption of the limitation period, a new term begins to run. The time elapsed until the interruption of the limitation period is not included in the new term of limitation period.
(3) In the event of the occurrence of the circumstance indicated in paragraph (1) letter a), a new period of limitation shall begin to run even if the circumstance occurs after the expiry of the period of limitation.
(4) In the event of interruption pursuant to paragraph (1) letter b), the new limitation period for the right to obtain enforcement shall not begin to run as long as the decision admitting the action or the order has not become final.
(5) In the event of interruption pursuant to paragraph (1) letter c), the limitation period shall resume from the date on which there is again the legal possibility of realizing the claim that remains unsatisfied.
Article 402. The course of prescription in the case of restitution
or removing the application from the list or
annulment of the ordinance
(1) If the court has returned the application, removed the application from the list or annulled the court order, the course of the limitation period that began before the filing of the action continues without interruption.
(2) However, if the plaintiff, within 6 months from the date on which the decision to return the application, to remove the application from the list or to annul the order became irrevocable, files a new action, the prescription is considered interrupted by the previous action provided that the new action is admitted.
Article 403. Reinstatement of the limitation period
(1) In exceptional cases, if the court finds, at the request of the plaintiff, that the limitation period is not respected due to circumstances related to the person of the plaintiff, the violated right of the person is defended.
(2) The resumption of the period may only be ordered if the party has exercised his right to action before the expiry of a period of 30 days, calculated from the day on which he became aware or should have become aware of the cessation of the reasons justifying the exceeding of the limitation period, and only if the maximum period calculated according to art. 404 has not expired.
Article 404. Maximum duration of the term of limitation period
(1) In all cases, the limitation period may not exceed a maximum period of 10 years from the date of the violation of the right, and in the case of actions regarding the compensation of patrimonial and moral damage caused by death or injury to health – 30 years from the date of the violation of the right.
(2) However, if, according to the special legal provision, the limitation period of the action runs from another date, then the maximum duration provided for in paragraph (1) shall run from that date.
(3) The term running during the period in which the running of the limitation period is suspended shall be included in the maximum duration of the term, except for the suspension pursuant to art. 399.
(4) The provisions of this Article shall not affect:
a) imprescriptible rights of action;
b) the limitation period established by law that exceed 10 years;
c) the effects of the interruption of the limitation period according to legal provisions.
Article 405. Claims not subject to limitation period
The following claims are imprescriptible:
a) regarding the protection of personal non-property rights unless the law provides otherwise;
b) to customers towards banks, savings and loan associations and other payment service providers regarding the release of funds registered in their account or money remittances made for their benefit;
c) regarding the compensation for the patrimonial and moral damage caused by death or injury to health. In this case, the damage that the plaintiff learned about in the period prior to the filing of the action, but not more than 3 years, is compensated.
Article 406. Performance of obligations after expiration
the limitation period
(1) After the expiration of the limitation period, the debtor may refuse to perform the obligation.
(2) Voluntary performance of the obligation after the expiration of the limitation period does not constitute an act without legal basis.
(3) The person who performed the obligation after the expiration of the limitation period has no right to demand the return of what was performed, even if, at the time of performance, he was not aware of the expiration of the limitation period. The same provision applies to the recognition of debts under the contract, as well as to insurance guarantees given by the debtor.
Article 407. Effects of prescription in the case of rights
guaranteed
(1) The prescription of a right secured by a pledge does not prevent the entitled party from demanding satisfaction from the encumbered property if the following conditions are cumulatively met:
a) the pledgee will be able to pursue, under the law, only the encumbered property, excluding from pursuit the rest of the debtor’s or the pledgee’s property;
b) from the proceeds of the sale of the encumbered property, only the capital of the secured right and the performance expenses may be satisfied, but excluding interest, late payment interest, penalties and other accessories;
c) no more than 2 years have passed since the date of the expiration of the limitation period by the debtor of the secured obligation to invoke against the creditor.
(2) The right of recourse of the pledgor against the debtor shall not be extinguished before the expiry of 6 months from the date of satisfaction of the secured right under the conditions of paragraph (1).
Article 408. Prescription of additional benefits
Together with the main right, the right to additional benefits related to the main right also expires, even when the special limitation period for this right has not begun to run.
Chapter III
EXPIRATION DEADLINES
Article 409. Establishing the limitation period
(1) By law or by the will of the parties, time limits may be established for the exercise of a subjective right or the conclusion of a juridical act.
(2) If it does not result unequivocally from the law or from the agreement of the parties that a certain term is subject to extinction, the term shall be considered a limitation period.
(3) A clause that establishes a limitation period that would make it excessively difficult for the consumer to exercise the subjective right or conclude the juridical act is considered to be absolutely null and void. In this case, the clause is considered to establish a reasonable period.
(4) Also, the clause establishing a limitation period that circumvents the mandatory legal provisions regarding the limitation period is absolutely null and void.
(5) Failure to exercise the subjective right within the established forfeiture period shall result in its extinction.
(6) If, within the established limitation period, the unilateral act is not concluded and, if it is subject to notification, is not received by the party to which it should have been notified, it does not produce legal effects.
Article 410. The regime of limitation periods
(1) Limitation periods are not subject to suspension, interruption and reinstatement, unless otherwise provided by law.
(2) However, the term may not run, and if it has started to run, it shall be suspended if the subjective right cannot be exercised or the juridical act cannot be concluded due to an impediment beyond the control of the person concerned and if he could not reasonably be expected to avoid or overcome the impediment or its consequences. In this case, the provisions of art. 398 para. (2) and para. (3) first sentence shall apply accordingly. If the remaining term is less than 7 days, it shall be extended and shall be equal to 7 days.
(3) When the exercise of the right involves the exercise of juridical action, the term is interrupted in one of the cases indicated in art. 401 para. (1) letter b).
Article 411. Waiver of the benefit of forfeiture
(1) When the limitation period has been established by contract or established by a legal provision protecting a private interest, the party in whose favor it was stipulated or established may renounce, after the expiration of the period, the benefit of the limitation period. If the renunciation occurs before the expiration of the period, the rules regarding the interruption of the limitation period by the recognition of the right shall apply.
(2) However, the parties may not waive, either in advance or after the start of their course, the public order forfeiture periods established by law, nor may they modify them, reducing or increasing them, as the case may be.
(3) The limitation periods established by law in contractual relations are presumed to protect only a private interest. However, the limitation periods established by law may not be modified to the detriment of the consumer, under penalty of absolute nullity.
Article 412. Application of forfeiture
(1) The forfeiture may be invoked by the party in whose favor the term was stipulated or established under the conditions of art. 394 paragraph (1).
(2) The court is obliged to invoke and apply the limitation period ex officio, except when it protects only a private interest.
Title V
PUBLICITY OF RIGHTS, OF DOCUMENTS
AND LEGAL FACTS
Chapter I
GENERAL PROVISIONS
Article 413. Object of advertising and methods
of achievement
(1) The rights, acts and facts regarding the status and capacity of persons, those related to the goods belonging to them, as well as any legal relationships are subject to publicity in the cases expressly provided for by law.
(2) The advertising referred to in paragraph (1) shall be carried out through:
a) the real estate register;
b) the register of movable collateral;
c) the state register of legal persons;
d) state vehicle register;
e) ship register or naval catalogue;
f) registers kept, according to the law, by the State Agency for Intellectual Property;
g) the register of civil status documents;
h) state register of individual entrepreneurs;
i) other forms of advertising provided for by law.
(3) The provisions of this title shall apply to the extent that the legal provisions applicable to a particular advertising register or other special legal provisions do not provide otherwise.
Article 414. Advertising conditions
(1) The procedure and conditions of advertising shall be established by law.
(2) The completion of the publicity formality may be requested by any person, even if he is a minor or if he is an adult in respect of whom a judicial protection measure has been established.
(3) Any waiver or restriction of the right to perform a publicity formality, as well as any penal clause or other sanction stipulated to prevent the exercise of this right, are absolutely null and void.
(4) No one may invoke the fact that he or she was unaware of the right, act or fact subject to publicity if the publicity formality was legally fulfilled.
Article 415. Effects of advertising
(1) Publicity ensures the enforceability of the right, act, fact, as well as any legal relationship subject to publicity, establishes their rank and, if expressly provided by law, conditions their establishment or legal effects.
(2) Between the parties or their successors, universal or with universal title, as the case may be, the rights, acts or facts, as well as any legal relationships produce full effects even if the publicity formalities have not been fulfilled, unless otherwise provided by law.
(3) Advertising does not validate the right, act or fact submitted or admitted to advertising. However, in the cases and conditions expressly provided for by law, it may produce acquisitive effects in favor of the acquirers.
(4) Advertising does not interrupt the course of the limitation period, unless otherwise provided by law.
Article 416. Presumptions in matters of registers
advertising
(1) If a right, act or fact has been registered in a public register, it is presumed to exist, as long as it has not been deleted or modified under the law.
(2) If a right, act or fact has been deleted, it is presumed that it does not exist.
Article 417. Lack of publicity. Sanctions
(1) If the formality of publicity was not carried out, and this was not provided for by the law of a constitutive nature, the rights, acts, facts or legal relationships subject to publicity are unenforceable against third parties, unless it is proven that they became aware of them in another way.
(2) When the law provides that mere knowledge of the fact does not compensate for the lack of publicity, its absence may be invoked by any interested person, including the third party who became aware, in another way, of the right, act, fact or legal relationship subject to publicity.
(3) In all cases, however, mere knowledge of the right, act, fact or legal relationship does not compensate for the lack of publicity towards persons other than the third party who, in fact, knew them.
Article 418. Competition between forms of publicity
If a right, act, fact or any legal relationship is subject to different publicity formalities at the same time, the failure to carry out one publicity requirement is not covered by the fulfillment of another.
Article 419. Consultation of advertising registers
(1) Any person, even without justifying an interest, may, under the law, consult the publicity registers regarding a right, act, fact or a certain legal situation and obtain extracts or certified copies from them.
(2) In the cases and in the manner provided by law, access to the information contained in the advertising register is restricted or conditioned in order to protect the personal data of the natural person to whom the information refers.
Chapter II
ADVERTISING REGISTERS
OF CONSTITUTIONAL CHARACTER
Section 1
General provisions
Article 420. Registers of advertising of a commercial nature
CONSTITUENTS
The provisions of this chapter apply to each advertising register (register) that meets the following conditions:
a) in that register, according to the law, certain real rights over certain categories of goods and/or certain other patrimonial rights are subject to registration (rights subject to registration/registered rights);
b) the law establishes that rights subject to registration may be acquired only by registering them for the benefit of the acquirer in that register, with the exceptions provided for by law.
Article 421. Types of registrations
(1) Entries, provisional entries and notes shall be made in the register.
(2) Registration and provisional registration have as their object the rights subject to registration, and the notation refers to other rights, acts, facts or legal relationships in relation to the registered rights contained in the register.
(3) Provisional registration and notation shall be made only in cases expressly provided for by law.
Article 422. Registration of rights subject to registration
affected by modalities
(1) Rights subject to registration acquired under a suspensive or resolutory condition shall not be registered. However, they may be registered provisionally.
(2) The extinction term or the burden of liberality may be indicated both in the content of the registration and in the provisional registration.
Article 423. Application of legal provisions
material and procedural
Applications for registration, provisional registration, notation or deletion, regardless of the date of their submission, are resolved according to the legal provisions of substantive law in force on the date of conclusion of the act or, as the case may be, on the date of the commission or occurrence of the legal fact generating, modifying or extinguishing the right subject to registration, provisional registration, notation or deletion, in compliance with the procedural norms in force at the time of submission of the application according to the law.
Section 2
Registration and provisional registration
Article 424. Constitutive character of the register
(1) Unless otherwise provided by law, rights subject to registration are established, transferred, and encumbered with real rights only by registration in the register provided by law, based on the act or fact that establishes the registration under the terms of the law.
(2) Unless otherwise provided by law, real rights shall be extinguished only by their deletion from the register provided by law, with the consent of the holder, given in the form provided by law. This consent shall not be necessary if the right extinguishes by the expiration of the term indicated in the registration or by the death or, as the case may be, by the cessation of the legal existence of the holder, if he was a legal person, as well as in other cases expressly provided by law.
(3) If the right subject to registration to be transferred is encumbered with a real right in favor of a third party, the transfer shall be made with the preservation of the real right of this third party, except in cases expressly provided for by law.
(4) The modification of a registered right shall be made in accordance with the rules established for the acquisition of this right.
Article 425. Formation or transmission without
registration of rights subject to
Recording
(1) The right subject to registration is established or transmitted without registration in the public register provided for by law on the basis of inheritance, dissolution of the legal person that was the holder of the registered right, on the basis of natural accession, forced sale, expropriation for reasons of public utility, as well as in other cases expressly provided for by law.
(2) However, in the case of forced sale, if the prohibition regarding the right subject to registration has not been previously noted in the real estate register, the right thus acquired may not be opposed to third parties acquiring in good faith.
(3) In the cases provided for in paragraph (1), the holder of the right thus acquired will be able to dispose of it through juridical acts only after registration in the corresponding advertising register.
Article 426. Conflict between third-party acquirers
from a common author
(1) In the event that two or more persons were entitled to acquire, through acts concluded with the same holder of the registered right, rights that are mutually exclusive, the person who first filed the application for registration of his right shall be considered the holder of the right subject to registration and shall be registered as such, regardless of the date of the title under which the registration in the register was made or who was in possession of the object of the right subject to registration.
(2) With regard to the registration applications of other applicants, the registrar shall refuse registration in that register.
Article 427. Situation of the third party acquirer in bad faith
(1) The person who was entitled, by a valid juridical act concluded, to request the registration of a right subject to registration in his favor may request the court to order the registration of his right and the deletion from the register of a competing right or, as the case may be, the granting of a higher rank than the right registered in favor of a third party if the law allows the coexistence of these competing rights, but only if the following conditions are met:
a) the juridical act on which the plaintiff bases his action must be prior to the one on which the registration was made in favor of the third party;
b) the right of the plaintiff and that of the third-party acquirer must originate from a common author;
c) the registration of the right in favor of the plaintiff was prevented by the third party acquirer through violence or fraud, as the case may be.
(2) Deletion or granting of a higher rank may also be requested if the violence or fraud came from a person other than the third party acquirer, but only if the latter knew or, as the case may be, should have known of this circumstance on the date of conclusion of the juridical act on the basis of which he acquired the right subject to registration.
(3) The right to action shall be prescribed within the limitation period for the action for nullity for violence or error, but may not exceed 3 years from the date of registration by the third party of the right in his favor.
Article 428. Persons from whom it may be obtained
rights subject to registration
(1) The registration of the acquisition of a right subject to registration may only be carried out:
a) if it is acquired from the person who, on the date of filing the application for registration, is registered as the holder of the right that is being transferred or encumbered; or
b) if it is acquired from the person who, prior to the registration of the acquisition of the right in his/her favor according to letter a), has undertaken to encumber his/her right, and both registrations are required simultaneously.
(2) The provisions of paragraph (1) shall not apply to the person who acquires the ownership right upon the primary registration in the register of the object of the right subject to registration.
(3) If a spouse is registered in the register as the sole owner of the registered right, but the quality of the right as a common property is noted, the alienation or encumbrance of that right shall be registered only with the consent of the other spouse, an agreement contained in the juridical act of disposition or in a separate document in the form required by law.
Article 429. Registration based on obligations
Dead
Registration based on the obligations of the deceased can also be carried out after the right subject to registration has been registered in the name of the heir, but only to the extent that the heir is bound by these obligations.
Article 430. Action in carrying out registration
(1) If the person obliged to transfer, establish or modify for the benefit of another person a right subject to registration does not fulfill the obligations necessary for registration in the register, the entitled person may request the court to order the registration to be carried out by the register holder (action to carry out registration).
(2) The action to carry out the registration shall be prescribed within 3 years under the law.
(3) The plaintiff is not required to prove that the obligated party did not consent to the registration.
(4) If the action for registration has been noted in the register, the judgment shall extend its effect also in relation to all persons who have acquired any right subject to registration after the notation, which shall be deleted, at the request of any interested person, without their consent, together with the right of their author who was a participant in the process. The provision of this paragraph shall apply even if the respective acquirers have not been involved in the process, it not being necessary to bring a separate action against them.
(5) The court decision admitting the action to carry out the registration is enforceable against the register holder without involving him in the process.
Article 431. Priority ranks and their substitution
(1) If several limited real rights encumber the same registered right, the priority ranks (ranks) between them are determined according to the sequence of their registration in time.
(2) Ranks may be substituted subsequently by making the appropriate entries in the register pursuant to the contract to this effect concluded between the holders of limited real rights whose rank is substituted.
(3) If, as a result of a substitution of rank, a pledge, mortgage or other real right of security takes on a lower rank, and another limited real right, other than a real right of security, takes on a higher rank, this substitution also requires the consent of the holder of the registered right encumbered by the rights whose rank is substituted.
(4) If a limited real right which, as a result of a substitution of rank, takes on a lower rank is, in turn, encumbered with a limited real right in favor of a third party, the consent of that third party is also necessary for this substitution.
(5) The higher rank acquired by substitution shall not be lost if the limited real right that took over the lower rank has expired.
(6) Limited real rights that rank between the ranks that are the subject of the substitution are not affected by that substitution.
Article 432. Provisional registration
(1) Except in other cases provided for by law, provisional registration in the register may be requested:
a) if the acquisition of the right subject to registration is affected by a suspensive or resolutory condition, including if a seizure or prohibition is applied to the right subject to registration, and the juridical act of disposition provides for the acquisition of this right under the suspensive condition of the lifting of the seizure or prohibition;
b) if, pursuant to a final court decision or one for which immediate enforcement has been ordered, but which is not yet irrevocable, the person was obliged to transfer, establish or extinguish a right subject to registration;
c) if a provisionally registered right is acquired or encumbered with a real right;
d) if both parties consent only to the making of a provisional registration, by express stipulation in the contract or by a joint written declaration if the law does not require the authentic form.
(2) For the purposes of paragraph (1) letter a), in particular, the property right transferred shall be considered acquired under a suspensive condition:
a) under the sales contract in which it was stipulated that the seller reserves the right of ownership until payment of all amounts owed by the buyer according to that contract (retention of ownership);
b) under the leasing contract in which it was stipulated that the lessee acquires the right of ownership after the full performance of his obligations under that contract.
(3) By express stipulation, the parties to the contract referred to in paragraph (2) may exclude the possibility of provisional registration in favor of the acquirer and provide that the contract will, instead, be subject to registration in the register.
Article 433. Effects of provisional registration
(1) Provisional registration has, from the date of filing the application, the same effect as the registration of the right subject to registration, but under the condition and to the extent of its subsequent justification.
(2) As long as the provisional registration is maintained:
a) provisional registrations and notations may be made in relation to the provisionally registered right;
b) the registered right is also maintained, and provisional registrations and notations can be made in relation to it.
(3) The justification of a provisional registration shall be made with the consent of the holder of the registered right in the form provided by law or on the basis of an irrevocable court decision admitting the action in justification of the provisional registration (action in justification). In the latter case, the provisions of art. 430 shall apply, accordingly, to the action in justification.
(4) The justification for a provisional registration shall extend its effect ex officio to all provisional registrations and notations in relation to the provisionally registered right. In such a case, the right referred to in paragraph (2)(b), as well as the provisional registrations and notations in relation to it, shall be cancelled.
(5) Failure to justify a provisional registration shall entail, at the request of the interested party, its deletion and all provisional registrations and notations in relation to the provisionally registered right.
(6) The person whose right is cancelled pursuant to paragraph (4) or (5) may not invoke his/her status as a bona fide acquirer or usucaption to oppose the cancellation.
Article 434. Rebuttal of presumptions of existence
or the non-existence of a right subject to registration
In the case of rights subject to registration, the presumptions provided for in art. 416 may be overturned only by means of an action for rectification or if proof is provided of the case provided for in art. 425.
Section 3
marking
Article 435. Rights, acts or facts
subject to grading
(1) In the cases provided for by law, rights, acts, facts or legal relationships shall become enforceable against third parties exclusively by notation, unless it is proven that they were known in some other way, unless the law provides that mere knowledge of them is not sufficient to compensate for the lack of publicity. In the event of a conflict of rights originating from a common author, the provisions of art. 426, 427 and 430 shall apply accordingly.
(2) Except in other cases provided by law, the following are subject to notation:
1) the contract regarding the use of common property or periodic property, the contract for postponing the division of common property;
2) the lease and assignment of the right to collect rent or other income generated by the registered right;
3) the contribution of the registered right to the share capital of a commercial company;
4) the preliminary contract, including the option, which the promisor concludes as the holder of the registered right;
5) the right of pre-emption arising from the contract and having as its object a registered right;
6) the prohibition, stipulated by contract or will, of alienating or encumbering a registered right (inalienability clause);
7) the quality of the registered right of joint property of the spouses;
8) the fiduciary capacity of the holder of the registered right and, if determined, the identity of the future beneficiaries in relation to the registered right;
9) the request to initiate insolvency proceedings against the holder of the registered right and the initiation of insolvency proceedings by the court;
10) seizure of the registered right, its fruits or its income; prohibitions established by the court or other authorities empowered by law;
11) the action to carry out the registration, the action to justify and the action to rectify;
12) the action regarding the challenge of the registrar’s decision and, if the prior procedure is mandatory according to the law, the prior request for that action;
13) any actions regarding rights, acts, facts, legal relationships in connection with the registered right, regardless of whether they concern an existing or cancelled registration or provisional registration, including:
a) action for the defense of the registered right;
b) action to annul the court decision declaring death;
c) the sharing action;
d) action for absolute or relative nullity of the juridical act or for finding the ineffectiveness of the juridical act on which a registration or provisional registration was based;
e) action for the declaration of the termination of the contract on which a registration or provisional registration was based;
f) revocation action regarding the juridical act on which a registration or provisional registration was based;
g) request for review of the court decision on which a registration or provisional registration was based;
14) initiation of criminal proceedings in respect of an offence committed through a registration, provisional registration or entry in the register or of an offence following which a registration, provisional registration or entry in the register was made;
15) the establishment of a judicial protection measure (provisional protection, curatorship, guardianship) in respect of the holder of the registered right if, according to the conditions of the established measure, the protected person cannot independently conclude juridical acts of disposition regarding the immovable property; the amendment or revocation of this measure;
16) the court decision received by the register holder from the court if the person in whose favor the right subject to registration is to be registered has not filed a registration application and has not paid the related fees according to the legal procedure.
(3) For the purposes of this article, third parties shall mean any person who has acquired a right subject to registration or another right in connection with the right subject to registration.
(4) The absence of notation does not deprive the right, act, fact or legal relationship of the effects it produces between its parties, and in the case of juridical actions – between the participants in the process.
(5) Unless otherwise provided by law, the notation made in relation to a registered right does not prevent the making of registrations, provisional registrations or other notations for the benefit of third parties without the consent of the applicant or the beneficiary of the notation.
Article 436. Applicant for the rating
(1) Unless otherwise provided by law, the notation in relation to a registered right shall be made only at the request or with the authentic consent of its holder.
(2) The notation made on the basis of an authentic juridical act may be requested by any of the parties to the juridical act or their successors. In the case of a juridical act in written form, the request must be submitted by all parties to the juridical act or their successors. In case of refusal, the party may request a court decision to take the place of consent.
(3) The action is scored:
a) at the request of the plaintiff based on the summons, the request to initiate insolvency proceedings, the request to issue an injunction or the request for arbitration, with the entry stamp or other proof of receipt by the court or, as the case may be, the arbitration court;
b) if ordered by the court, under the terms of the Code of Civil Procedure;
c) ex officio, when the decision of the register holder is contested through an action.
(4) If the action was registered on the basis of the application submitted in accordance with paragraph (3) letter a), the holder of the real right affected by the registration may request from the applicant for registration compensation for the damage suffered by the loss of a real opportunity to dispose of the real right for a consideration, to obtain financing or compensation for other similar damage caused by the existence of the registration, provided that the action is not admitted by the court or, if admitted, is not enforceable against the holder of the real right, and the applicant for registration should have reasonably anticipated this.
(5) The action note is deleted:
a) at the request of the person who requested the notation or of his or her legal successor;
b) at the request of any interested person, based on the removal order of the court examining the merits of the action or the court’s decision admitting the action to rectify the rating according to art. 442;
c) at the request of any interested person, based on the irrevocable court decision refusing to accept the application, returning the application, terminating the process, removing the application from the list, annulling the court order, based on the decision rejecting the application to initiate insolvency proceedings, as well as based on the irrevocable court decision resolving the merits of the action.
(6) The registration of the prior application against the decision of the registry holder shall be deleted ex officio upon expiry of the 60-day period from the date of submission of the prior application to the registry holder.
(7) The quality of the registered right as common property of the spouses shall be noted at the request of either spouse, based on the marriage certificate, if its content, correlated with the legal situation of that right described in the register, shows that the registered right was acquired during the marriage, and according to the law, that right is not to be attributed to the category of personal property of the spouse in whose favor the right is registered.
Article 437. Notation of preliminary contracts
(1) The preliminary contract which has as its object a registered right may be noted in the register if the promisor is registered in the register as the holder of the right which is the object of the definitive contract.
(2) Apart from other cases provided for by law, the pre-contract note shall be deleted:
a) if the beneficiary’s action to request the issuance of a court decision that replaces a definitive contract has become time-barred;
b) if the registered right was definitively adjudicated in the course of a forced sale by a third party who is not liable for the promisor’s obligations;
c) if an option was stipulated by the preliminary contract noted in the register, and, until the expiration of the term stipulated in the preliminary contract for exercising the option, the beneficiary of the option does not request, based on the declaration of exercise of the option and the proof of its communication to the other party, the registration or provisional registration of the right subject to registration that is to be acquired.
(3) In the cases provided for in paragraph (2), the provisions of art. 442 shall apply accordingly.
Section 4
Rectification of the contents of the register
Article 438. The concept
(1) When a registration, provisional registration or notation made in the register does not correspond to the actual legal situation, its rectification may be requested.
(2) Rectification means the erasure, correction or correction of any entry, provisional entry or inaccurate note made in the register.
(3) The actual legal situation must result from an acknowledgement made by the holder of the registration, provisional registration or notation whose rectification is requested, by a declaration given in the form required by law, or from an irrevocable court decision pronounced against him, by which the substantive action was admitted.
(4) The substantive action may be, as the case may be, an action for the establishment or declaration of the nullity or ineffectiveness of the juridical act in respect of the establishment, transmission or, as the case may be, the extinction of the registered right, an action for the nullity of the registration, provisional registration or notation, a request for review of the court decision or a request to challenge the arbitration award, as well as another action that may have the effect of establishing an action for rectification.
Article 439. Rectification of registration or registration
PROVISIONAL
(1) Any interested person may request the rectification of a registration or provisional registration if:
a) the registration or provisional registration is not valid, including if the right was incorrectly qualified by the registrar;
b) the nullity or ineffectiveness of the act or fact on the basis of which the registration or provisional registration was carried out was found or declared in respect of the establishment, transmission or, as the case may be, the extinction of the registered or provisionally registered right;
c) the registered or provisionally registered right has expired based on the law or the act under which the registration or provisional registration was made;
d) the registration or provisional registration in the register is no longer, for any other reason, consistent with the actual legal situation of the registered or provisionally registered right.
(2) The rectification in the register may be made either amicably, by means of a declaration in the form required by law by the holder of the right to be deleted or amended, or, if the declaration has not been made, by an irrevocable court decision. The claimant is not required to prove that the holder of the right to be deleted or amended did not make the declaration.
(3) If a spouse is registered in the register as the sole owner of the registered right, at the request of the other spouse, with the consent of the spouse registered as the owner, in the form required by law, the register may be rectified, registering the joint right in a lump sum or, under the conditions of the law, in shares over the registered right of both spouses. The rectification shall be carried out on the basis of a certified copy of the marriage certificate, if its content, correlated with the legal situation of that right described in the register, shows that the registered right was acquired during the marriage, and according to the law that right is not to be attributed to the category of personal property of the spouse in whose favor the right is registered.
(4) When the right registered or provisionally registered in the register is to be rectified, its holder is obliged to hand over to the entitled person, together with the consent given, in the form required by law, for the rectification, the necessary documents, and otherwise, the interested person may request the court to order the rectification in the register. In the latter case, the court decision shall replace the consent to the registration or provisional registration of the party who is obliged to hand over the documents necessary for the rectification.
(5) The rectification action may be brought simultaneously or separately, after the substantive action has been admitted, where appropriate. It may be brought both against the direct acquirer and against third-party acquirers, under the conditions provided for in art. 440, with the exception of the action based on the provisions of par. (1) letters c) and d) of this article, which may not be brought against the bona fide acquirer of the right subject to registration acquired on the basis of a juridical act for consideration or, as the case may be, on the basis of a pledge, mortgage or other real guarantee contract.
(6) The rectification action based on the provisions of paragraph (1) letter b), c) or d) does not entail the need to simultaneously challenge the registrar’s decision.
Article 440. Time limits for exercising the action
in rectification
(1) The rectification action is not subject to prescription.
(2) The rectification action based on one of the grounds provided for in art. 439 para. (1) letter a) or b) shall be rejected if the holder of the registered right has demonstrated the occurrence of acquisition in good faith pursuant to art. 523 or of usucapion pursuant to art. 524.
Article 441. Effects of the admission of the rectification action
(1) The decision admitting the rectification may not prejudice the rights of persons who did not participate in the trial.
(2) However, if the rectification action has been recorded in the register, the court decision admitting the rectification action shall extend its effect also to persons who have acquired any right subject to registration after the recording, which shall be deleted, at the request of any interested person, together with the right of their author who was a participant in the process. The provision of this paragraph shall apply even if the respective acquirers have not been involved in the process, and it shall not be necessary to file a separate action against them.
(3) The court decision admitting the rectification action is enforceable against the register holder without involving him in the process.
Article 442. Rectification of the entry in the register
(1) In the absence of the consent of the holder of the rating, any interested person may request the rectification of a rating in the cases provided for in art. 439, as well as whenever, for any other reason, the rating is not or has ceased to be accurate.
(2) The rectification shall be granted on the basis of a final court decision unless the law provides that a particular rating may be removed at the request of any interested person or ex officio. The right to action to rectify the rating is not subject to prescription.
(3) The provisions of Articles 439 and 441 remain applicable.
Article 443. Cancellation of conditional rights
(1) The right acquired under a suspensive condition shall be deleted at the request of any interested person, if the fulfillment of the condition affecting the right is not proven, within 10 years from the provisional registration or within another term stipulated by the parties in this regard.
(2) The resolutory condition and the right of the previous holder will also be deleted in the same way, if the deletion of the provisionally registered right in such a manner was not requested, based on the resolutory condition, for 10 years from the provisional registration, unless the act stipulating the condition provides for another term.
(3) The provisions of art. 433 para. (4)-(6) shall apply accordingly.
Article 444. Correction of material errors
Clerical errors committed during registrations, provisional registrations or notes made in the register, other than those that constitute cases of rectification, may be corrected upon request or ex officio. The provisions of articles 440-442 shall apply accordingly.
Article 445. Liability for holding
registry error
(1) The person harmed by an unlawful act committed without justification in the keeping and administration of the register may request the obligation, jointly and severally, to pay compensation to the register holder who committed the act and to the person guilty of the damage thus caused, if the damage could not be removed, in whole or in part, by the exercise, by the harmed person or his predecessors in the right concerned, of the actions and remedies provided for by law.
(2) If the law provides for the formation of a guarantee fund, the registry holder shall pay the compensation from that fund.
(3) The right to bring an action shall be prescribed within a period of 1 year, calculated from the day on which the injured party became aware of the act causing the damage, but no later than 3 years from the date on which the act was committed. The prescription shall be suspended by exercising the actions and remedies provided by law for the removal of the effects of the act causing the damage.
Chapter III
REAL ESTATE REGISTER
Article 446. Purpose and object of the property register
Immobile
(1) The real estate register shall register real estate and the real rights thereto (real estate real rights). The component parts of the real estate shall also be registered in the real estate register. In cases provided for by law, the holder of the real right shall be obliged to request the registration of the component parts of the real estate.
(2) In the cases provided for by law, some rights, facts or legal relationships related to the real estate registered in the real estate register may be noted in the real estate register.
(3) The law regulates:
a) the procedure for registration, provisional registration, notation or deletion from the real estate register;
b) the formation of real estate through separation, division, merger or combination.
Article 447. Registration conditions
In addition to other grounds provided for by law, registration or provisional registration in the real estate register is carried out on the basis of a notarized contract, a court decision, an heir’s certificate or on the basis of an act issued by administrative authorities in cases where the law provides for it.
Article 448. Renunciation of the right of ownership
(1) The owner may waive his right to the immovable property through a notarized declaration, filed with the territorial cadastral body in order to cancel the right.
(2) In the case provided for in paragraph (1), the village (commune), the city or, as the case may be, the municipality may request the registration of the property right in its favor, based on the decision of the local council, in compliance with the legal provisions regarding the transfer of real estate rights, if another person has not requested the registration on the basis of usucapion according to art. 526.
(3) In the case of immovable property encumbered by limited real rights, the administrative-territorial unit that took over the property is only liable with that property.
Article 449. Date of production of effects of registration
Unless otherwise provided by law, registration in the real estate register shall produce effects from the date of submission of the application to the territorial cadastral body, taking into account the date, hour and minute of submission.
Article 450. Rights, acts or facts subject to
marking
Apart from other cases provided by law, the following are subject to registration in the real estate register:
a) the intention of the holder of the real property right to alienate or mortgage the right;
b) attachment, pledge or establishment of other real security over the mortgage claim;
c) notice of enforcement of the mortgage right.
Article 451. Noting the intention to alienate or
to mortgage
(1) The holder of a real right in immovable property may request that his intention to alienate or mortgage in favor of a specific person be noted, indicating in the latter case also the maximum amount of the guaranteed obligation without interest, commissions and other expenses, penalties or other forms of compensation.
(2) If, within 3 months of the notation of the intention to alienate or mortgage, an application is submitted for registration or provisional registration of the intended alienation or mortgage, the right shall be registered or, respectively, provisionally registered also in relation to the persons who have acquired any real right to real estate after the notation, whose rights shall be deleted without their consent at the request of any interested person.
(3) The notation of the intention to alienate or mortgage loses its effect upon the expiry of a period of 3 months from the date of submission of the notation request and is deleted without the consent of the holder at the request of any interested person.
(4) The year, month and day on which the rating loses its effect shall be mentioned in the rating.
Article 452. Modification of the description of the property
The owner of the real estate property registered in the real estate register may at any time request the modification of the mentions in the real estate register regarding the description, destination or surface area of the property, under the terms of the law.
BOOK TWO REAL RIGHTS
Title I
Patrimony
Article 453. The concept of patrimony
(1) Patrimony represents the totality of patrimonial rights and obligations (which can be valued in money), viewed as a sum of property and liabilities linked to each other, belonging to specific natural and legal persons.
(2) All property of a natural or legal person are part of their patrimony.
Article 454. Real rights
(1) Real rights are the right of ownership and limited real rights.
(2) The following are limited real rights:
a) the right of usufruct;
b) the right of use;
c) the right to housing;
d) the right of superficies;
e) the right of easement;
f) real security rights, including pledge and mortgage;
g) other rights to which this character is expressly attributed by law.
Article 455. Goods
(1) Goods are all things susceptible to individual or collective proximity and patrimonial rights.
(2) Things are corporeal objects in relation to which civil rights and obligations may exist.
Article 456. Component parts of the property
(1) By accession, the owner of an property becomes the owner of everything that is attached to the property or incorporated into it if the separation would cause the destruction or would essentially diminish the value or economic destination of the property or of the part subject to separation.
(2) The property and its component parts may not be owned by different persons and may not be encumbered by different real rights.
(3) The provisions of paragraphs (1) and (2) shall apply to the extent that the law does not provide otherwise.
Article 457. Civil circulation of goods
Goods may circulate freely, except in cases where their circulation is limited or prohibited by law.
Article 458. Animals
(1) Animals are not things. They are protected by special laws.
(2) The legal provisions relating to things shall apply accordingly to animals, except in cases established by law.
Article 459. Immovable and movable property
(1) The property may be immovable or movable.
(2) Real estate is considered land registered in the real estate register under a distinct cadastral number.
(3) Materials temporarily separated from a plot of land for reuse shall remain immovable property, as long as they are kept in the same form, as well as integral parts of an immovable property that are temporarily detached from it if they are intended for relocation. Materials brought in to be used in place of the old ones shall become immovable property.
(4) By law, other property may also be reported to the category of immovable property.
(5) Goods that are not classified as immovable property, including money, securities and other valuables, are considered movable property.
Article 460. Component parts of immovable property
(1) The things and works permanently attached to the land, such as buildings, underground constructions (even if they extend onto other lands), separate aquatic objects, rooted plantations, unharvested fruit, constitute a component part of the immovable property. This rule applies regardless of whether or not these component parts are registered in the immovable property register separately.
(2) Buildings and other things and works permanently attached to the land, which are constructed on the land of another based on a superficies right, as well as things attached to the land for a temporary purpose, do not constitute a component part of the immovable property.
(3) Utility networks or utility works located on the immovable property that were built by a third party based on a superficies right or in respect of which the owner of the immovable property has a legal obligation to tolerate them shall not be considered a component part of the immovable property.
(4) The buildings and other things and works provided for in paragraphs (2) and (3) constitute immovable property over which the right of ownership is exercised by the holder of the respective superficies right over the land for the duration of the existence of this right. The respective holder may not alienate or encumber the right of ownership and the superficies right except together.
(5) Buildings and other things and works permanently attached to the land that remain on the land upon the termination of the superficies right become a component part of the land.
Article 461. Component parts of the building
(1) The things and works from which the building is constructed or which are permanently attached to it and which cannot be separated without substantially damaging the building or the thing or work subject to separation constitute a component part of the building.
(2) Work or work attached to a building for a temporary purpose is not part of that building.
Article 462. Condominium unit
(1) The unit in the condominium together with the corresponding share of the ownership or surface right over the land, parts of the building other than the units and other common parts of the condominium constitute real estate.
(2) The unit and the corresponding share of the right over the common parts may only be alienated or encumbered together.
Article 463. Extent of property rights
on the land
(1) The ownership of the land also extends to the basement and the space above the land, in compliance with the legal limits.
(2) Under the terms of the law, the owner may make, above and below the land, all the constructions, plantations and works that he deems appropriate and may derive from them all the benefits that they would produce. He is required to respect, under the conditions and within the limits determined by law, the rights of third parties over the mineral resources of the subsoil, springs and underground waters, underground works and installations and other similar ones.
(3) Surface waters and their beds belong to the owner of the land on which they are formed or flow, under the conditions provided by law. The owner of a land also has the right to appropriate and use, under the conditions of the law, the water of springs and lakes located on the respective land, groundwater, as well as rainwater.
Article 464. Provisions applicable to real rights
The provisions relating to immovable and movable property shall apply accordingly to real rights over such property.
Article 465. Acquisition of real rights over
real estate
(1) Unless otherwise provided by law, real rights over immovable property are established, transferred, and encumbered with other real rights only through registration in the real estate register, based on the act or fact that establishes the registration under the terms of the law.
(2) State registration of rights to immovable property shall be public. The body carrying out state registration shall be obliged to provide any person with information on all rights and encumbrances registered on any immovable property.
(3) The body performing state registration is obliged to issue, at the request of the person whose right is registered, a document confirming the registration or to affix an initial on the document submitted for registration.
Article 466. Divisible and indivisible property
(1) An property is divisible if it can be shared in kind without changing its economic destination.
(2) An property is indivisible if its parts, following division, lose their qualities and destination.
(3) By juridical act, a divisible property by its nature may be considered indivisible.
Article 467. The main property and the accessory property
(1) A good permanently intended for the economic use of another (principal) good and linked to it by a common destination is an accessory good as long as it satisfies this use. All other goods are principal.
(2) The common destination may be established only by the owner of both goods unless otherwise provided in the contract.
(3) The accessory property follows the legal status of the main property unless the parties agree otherwise.
(4) The termination of the quality of accessory property is not opposable to a third party who previously acquired rights regarding the main property.
(5) The temporary separation of an accessory good from the main good does not remove this quality.
(6) The rights of a third party regarding an property may not be violated by transforming it into an accessory property.
Article 468. Fungible goods and non-fungible goods
(1) Goods are fungible if, in the performance of an obligation, they can be replaced by others without affecting the validity of the payment. All other goods are non-fungible.
(2) By juridical act, a fungible good may be considered non-fungible, and a non-fungible good may be considered fungible.
Article 469. Individually determined property and property
generically determined
(1) An property is considered individually determined if, according to its nature, it is individualized through signs and characteristics characteristic only of it.
(2) A generically determined good is considered to be a good that possesses the characteristic signs of all goods of the same kind and that can be individualized by counting, measuring, weighing. A generically determined good is fungible.
(3) By juridical act, individually determined goods may be considered generically determined, and generically determined goods may be considered individually determined.
Article 470. Consumable goods and goods
non-consumables
(1) Consumable goods are those whose normal use involves the alienation or consumption of their substance. All other goods are non-consumable.
(2) By juridical act, a consumable good may be considered non-consumable.
Article 471. Public domain goods and goods
private domain
(1) Goods belonging to the state or administrative-territorial units are part of the private domain if, by law or in the manner established by law, they are not transferred to the public domain.
(2) The public domain of the state or of administrative-territorial units includes the goods determined by law, as well as the goods which, by their nature, are of public use or interest. The public interest implies the assignment of the good to a public service or to any activity which satisfies the needs of the community without presupposing its direct access to the use of the good according to the mentioned destination.
(3) The wealth of any kind of subsoil, the airspace, the waters and forests used in the public interest, the natural resources of the economic zone and the continental shelf, the means of communication, as well as other property established by law, are the exclusive object of public property.
(4) Public domain property are inalienable, unseizable and imprescriptible. The right of ownership over these property is not extinguished by disuse and cannot be acquired by third parties by usucaption.
Article 472. Universality in fact
(1) A universality in fact constitutes the set of goods that belong to the same person and are regarded as a whole by their will or by law.
(2) The goods that constitute the universality in fact may, together or separately, be the subject of distinct juridical acts or relationships.
Article 473. Products of goods
(1) The products of goods are fruits and products.
(2) Fruits are those products that derive from the use of a good, without diminishing its substance. Fruits are: natural, industrial and civil. Civil fruits are also called income.
(3) Natural fruits are the direct and periodic products of a good, obtained without human intervention, such as those that the earth produces on its own, the production and growth of animals.
(4) Industrial fruits are the direct and periodic products of a good, obtained as a result of human intervention, such as crops of any kind.
(5) Civil fruits are the income resulting from the use of property by another person by virtue of a juridical act, such as rents, leases, interests, annuity income and dividends.
(6) Products are the products obtained from a good with the consumption or diminution of its substance, such as trees from a forest, stone from a quarry, and the like.
Article 474. Acquisition of fruits and products
(1) Fruits and products belong to the owner, unless otherwise provided by law or juridical act.
(2) The right of ownership over natural and industrial fruits is acquired on the date of separation from the property that produced them.
(3) The right of ownership over civil fruits is acquired on a daily basis.
Article 475. Accessory right and limited right
(1) An accessory right is a right so linked to another right that it cannot exist without it.
(2) A limited right is a right derived from a more comprehensive right that is encumbered with that right.
Article 476. Objects of intellectual property
(1) Any result of intellectual activity, confirmed and protected by the corresponding rights regarding its use, is considered an intellectual property object.
(2) Intellectual property objects are divided into two categories:
a) industrial property objects (inventions, plant varieties, topographies of integrated circuits, trademarks, industrial designs, geographical indications, designations of origin and traditional specialities guaranteed);
b) objects of copyright (literary, artistic and scientific works, etc.) and related rights (performances, phonograms, videograms and broadcasts of broadcasting organizations, etc.).
(3) The field of intellectual property also includes other goods that have a separate regulatory system, such as:
a) trade secret (know-how);
b) the trade name.
(4) In the case of industrial property objects, the right to them arises following the registration of the object, the granting of the protection title by the national intellectual property office or under other conditions provided for by national legislation, as well as on the basis of international treaties to which the Republic of Moldova is a party. In the case of objects of copyright and related rights, registration is not a mandatory condition for the emergence and exercise of the respective rights, these objects being protected from the moment of their creation.
(5) Under the law, the holder of the right to the intellectual property object:
a) may alienate the right by assignment;
b) may allow its exploitation by third parties through an exclusive or non-exclusive license;
c) may exercise other moral and patrimonial rights provided by law regarding the object of the exclusive right.
(6) With the exceptions provided by law, no person may exploit the right to the intellectual property of another without the appropriate license. The license is presumed non-exclusive unless expressly provided otherwise.
(7) The right to the intellectual property object and the right granted by license are considered intangible property and may be encumbered with limited real rights for the benefit of third parties.
Article 477. Digital content and digital goods
(1) Digital content is considered to be data produced and delivered in digital form, such as computer programs, applications, games, music, video recordings or texts, regardless of whether they are accessed by downloading or streaming, from a material support or by any other means.
(2) If digital content is delivered on a material medium, such as CDs or DVDs, the provisions regarding tangible goods apply to it.
(3) A person’s digital property is considered to be:
a) the digital content to which it has the right;
b) the account at an electronic mail, network or other online account, to which she is entitled.
(4) The custodian of the digital property is the business who provides access to, maintains, processes, receives or stores the digital property of another person (user), according to the contract between the custodian and the user.
Article 478. Third party access to digital goods
(1) The user may use the electronic service provided by the custodian of the digital property to order the custodian to provide access or not to provide access to all or certain digital property, including the content of electronic communications. If the service provided by the custodian allows the user to modify or revoke an order at any time, the order regarding the provision of access shall take precedence over the will expressed by the user in a will or a mandate.
(2) If the user has not used the service provided for in paragraph (1) or if the custodian does not offer such a service, the user may allow or prohibit, by a will or mandate, access by certain specified or determinable persons to all or certain digital property.
(3) The order given by the user according to paragraph (1) or (2) takes precedence over the terms of the contract between the custodian and the user. In the absence of an order from the user according to paragraph (1) or (2), the terms of the contract between the custodian and the user apply, which may allow, limit or exclude access of interested third parties to the user’s digital property.
(4) If a judicial protection measure has been established in respect of the user, and the provisional protector, curator or tutor does not have access to the digital property of the protected person according to paragraph (1), (2) or (3), he may request from the court to be granted the right to access if he has a legitimate interest in this regard and if this does not contradict the wishes and feelings expressed in the past and present by the protected person. Under the same conditions, the court may grant the right to access by the court decision establishing the judicial protection measure.
(5) The custodian who must provide access to digital property pursuant to paragraphs (1)-(4) may provide it through:
a) full access to the online account;
b) partial access to the online account, but sufficient to respect the authorizations of the entitled person;
c) providing the entitled person with copies, on a durable medium, of the digital goods that the user could have accessed.
(6) The custodian may establish a reasonable fee to cover the costs of processing the request and providing access.
(7) The custodian is not obliged to provide access to digital property deleted by the user.
(8) The provisions of this article are without prejudice to other legal provisions that allow third parties access to a person’s digital property.
Article 479. Money
(1) The national currency, the leu, constitutes a legal tender, mandatory for acceptance at face value throughout the territory of the Republic of Moldova.
(2) The cases, conditions and manner of making payments in foreign currency on the territory of the Republic of Moldova shall be established by law.
Article 480. Securities
(1) A security is an instrument that incorporates one or more rights in such a way that after the instrument is issued, the right or rights cannot be exercised or assigned (traded) without that instrument.
(2) The following constitute securities:
a) credit instruments, such as bills of exchange (promissory notes and drafts) and checks;
b) securities, such as shares and bonds;
c) the representative titles of the goods, such as the consignment note, the bill of lading and the warehouse receipt;
d) other instruments which, under the law, meet the requirements of paragraph (1).
Article 481. Movable cultural property
(1) Movable cultural property is property attributed, under the law, to the national movable cultural heritage of the Republic of Moldova, as well as property attributed as such by the law applicable to the legal regime of the respective property according to the rules of private international law.
(2) Movable cultural property belonging to the Republic of Moldova or an administrative-territorial unit is part of its public domain.
(3) The legal regime of movable cultural property, as well as the conditions and limits within which natural and legal persons exercise the right of ownership over them, are provided for by law, by international treaties to which the Republic of Moldova is a party and, in addition, by this Code.
Title II
POSSESSION
Chapter I
GENERAL PROVISIONS
Article 482. Acquisition and exercise of possession
(1) Possession is acquired through the deliberate exercise of actual possession of the property.
(2) The person who has begun to exercise the right as a holder shall be deemed to be the possessor of the right. The provisions on possession shall apply accordingly to the possession of rights.
(3) If several persons jointly own an property, they are considered co-owners.
(4) If several persons own parts of an property, they are considered owners of the separate parts.
(5) Persons without legal capacity and legal persons exercise possession through their legal representative.
Article 483. Direct possession and indirect possession
(1) Possession is direct if actual possession is exercised by the possessor personally or through his representative.
(2) Possession is mediated if the actual possession is exercised through the possessor with limited rights.
Article 484. Possessor under the name of owner
and the limited right holder
(1) The possessor may exercise possession as a possessor under the name of owner or as a possessor with limited rights.
(2) A possessor under the name of owner is the person who exercises possession over the property with the intention of behaving with it as an owner.
(3) The person who exercises possession over the property is a possessor with limited rights:
a) as the holder of a limited real right, as a tenant, co-owner or co-owner, with regard to the shares of the other co-owners, as well as in other cases when he exercises possession with the intention of acting in his own interest, based on a certain legal relationship with the possessor under the name of owner through which the possessor of limited right acquired the right to possess the property; or
b) as an entrepreneur, carrier, depository, as well as in other cases when he exercises possession with the intention of acting in this way at the instruction of the possessor under the name of the owner, based on a certain legal relationship with the possessor under the name of the owner through which the possessor with limited rights has the right to retain the property until the expenses or costs related to the possession have been paid by the possessor under the name of the owner.
(4) The provisions of paragraph (3) shall apply accordingly when another possessor of limited rights exercises possession based on a specific legal relationship with the possessor of limited rights provided for in paragraph (3).
(5) Until proven otherwise, the possessor of the property is presumed to be the possessor under the name of owner.
Article 485. Possession by proxy
(1) For the purpose of exercising possession, the person is required to:
a) who exercises direct actual possession over the property in the name of the possessor, without having the intention and without being a party to the legal relationship provided for in art. 484 paragraph (3); or
b) to whom the possessor may give binding instructions regarding the possession or use of the property in the interest of the possessor.
(2) The category of supervisor may include, in particular:
a) the employee of the holder or the person exercising a similar function; or
b) the person to whom the possessor has allowed actual possession of the property for practical reasons.
(3) It is also assumed that the person who accidentally is in a position to exercise, and does exercise, direct actual possession over the property for the possessor.
Article 486. Inversion of the type of possession
(1) Limited right possession, once proven, is presumed to be maintained until proof of its conversion into possession under the name of the owner, in one of the following situations:
a) the possessor of limited right becomes entitled to acquire the right of ownership from a person other than the owner of the property, and the possessor did not know and should not have reasonably known of the lack of ownership of the person to whom he is entitled;
b) the possessor of limited right commits against the possessor under the name of owner unequivocal acts of resistance which express his intention to begin behaving as an owner; in this case, however, the reversal will not occur before the expiry of the term provided for the return of the property.
(2) The provisions of paragraph (1) shall apply accordingly to the person who has transferred the actual possession into possession under the name of the owner.
Article 487. Possession in good faith
(1) A person who has a right of possession or who can consider himself entitled to possess following a diligent examination, as required in civil relations, of the grounds for his entitlement is considered a bona fide possessor. Good faith is presumed.
(2) Possession in good faith ceases if the right of possession is extinguished or, as the case may be, if a well-founded claim is made against the possessor.
Article 488. Presumption of uninterrupted possession
If the person possessed the property at the beginning and end of a period, it is presumed that he possessed it continuously throughout the entire period.
Article 489. Cessation of possession
Possession ceases by:
a) alienation of the property;
b) abandonment of the movable property or registration in the real estate register of the declaration of renunciation of the right of ownership over the real estate property;
c) destruction of the property;
d) dispossession by a third party, if the possessor remains deprived of possession of the property for more than 1 year;
e) impossibility of exercising possession, the intermittency being abnormal in relation to the nature of the property.
Chapter II
EFFECTS OF POSSESSION
Section 1
Presumption of ownership
Article 490. Presumption of ownership
(1) The possessor is presumed to be the owner of the property until proven otherwise. This presumption does not apply where, according to the law, the right of ownership is acquired by registration in a public register, nor in relation to a former possessor whose movable property was stolen, lost or otherwise removed from possession without his consent, with the exception of money and bearer securities.
(2) Until proven otherwise, it is presumed that the previous possessor was the owner of the property during the period in which he possessed it.
(3) In the case of mediated possession, the presumptions provided for in this article are established in favor of the possessor under the name of owner.
Section 2
Defending possession
Article 491. Dispossession and illegal disturbance
(1) A person who dispossess
(2) In addition to other means of defense provided by law, the illegally dispossessed or disturbed possessor has the right to compensation for the damage caused in accordance with the legal provisions on tortious liability.
Article 492. Self-defense of the possessor
(1) The possessor or a third party may resort to self-defense against a person who unlawfully dispossesses the possessor of property, who otherwise unlawfully disturbs possession, or whose act of unlawful dispossession or unlawful disturbance is imminent.
(2) The means of self-defense are limited to immediate and proportionate measures necessary to recover the property or to stop or prevent the dispossession or disturbance, as well as to remove the usurper from the immovable property.
(3) Subject to the provisions of paragraphs (1) and (2), self-defense may be directed against the mediated possessor under the name of owner who illegally dispossesses the possessor of limited right or illegally disturbs his possession, violating the terms of the legal relationship between them. This rule also applies to the mediated possessor of limited right who illegally dispossesses or illegally disturbs the possession of another possessor of limited right.
(4) If a person, in exercising the right of self-defense granted by this article, causes harm to the person who illegally dispossessed or who illegally disturbs possession, the provisions regarding self-defense, extreme necessity or, as the case may be, business management without a warrant shall apply accordingly.
Article 493. Defense of possession by way of action
in reintegration
(1) If a person illegally dispossesses the possessor, the latter, under penalty of forfeiture, shall have the right to demand the restitution of the property within 1 year, regardless of which of them he has the right of possession or has a preferred possession. The 1-year period shall begin to run from the date of dispossession.
(2) Restitution may also be demanded from the intermediate possessor under the name of the owner who has illegally dispossessed the possessor of limited right, violating the terms of the legal relationship between them. This rule also applies to the possessor of limited right who has illegally dispossessed another possessor of limited right.
(3) The right to demand restitution is excluded if the person who intends to exercise it has illegally dispossessed another holder of a limited right.
(4) Restitution may also be requested from a third party who, at the time of acquiring possession, knew that the possessor had been illegally dispossessed by another person.
Article 494. Defense of possession by way of action
in compliance
(1) If a person illegally disturbs the possession of the property or if the illegal disturbance or illegal dispossession is imminent, the possessor, under penalty of forfeiture, within 1 year, has the right to the defense according to paragraph (2) of this article, regardless of who has the right or a preference to possess, use or otherwise enjoy the property within the meaning of art. 495. The 1-year period begins to run from the moment the disturbance begins or, in the case of repeated disturbance, from the moment the last disturbance occurred.
(2) The court may order the defense of the possessor, depending on the circumstances, by prohibiting imminent disturbance, prohibiting current disturbance, as well as removing the consequences of past disturbances.
(3) The action may also be brought against the intermediate possessor under the name of owner who illegally disturbs the possession of the direct possessor of limited right, violating the conditions of the legal relationship between them. This rule also applies to the intermediate possessor of limited right who illegally disturbs the exercise of the possession of the direct possessor of limited right, thus violating the conditions of the legal relationship between them.
Article 495. Defense of preferred possession by way of
reintegration action
(1) The previous possessor is entitled to demand the return of the property from the person who exercises actual possession over the property if the previous possession is preferred compared to the current possession of this person.
(2) Prior possession is preferred over current possession if the prior possessor is in good faith and has the right to possess, while the person exercising current possession does not have the right to possess the property.
(3) If both persons are in good faith and have the right to possess the property, the right established by the owner shall be preferred over the right established by the possessor under the name of the owner who is not the owner. If this rule cannot be applied, the legitimate possession that was exercised first shall be preferred.
(4) If both persons are in good faith, but neither of them has the right to possess the property, current possession is preferred.
Article 496. Defense of preferred possession by way of
action in compliance
If a person disturbs possession or disturbance or dispossession is imminent, the possessor in good faith has the right to defense under art. 494 para. (2), except in the case where:
a) the person who disturbs will have, in case of dispossession, a preferred possession according to art. 495 para. (2)-(4); or
b) the person has, compared to the possessor, a preferential right to use or otherwise enjoy the property.
Section 3
The fruits and value of the use of the property possessed
Article 497. Acquisition of the fruits of the possessed property.
The use value of the good
(1) The possessor in good faith acquires the right of ownership over the fruits of the possessed property. He is not obliged to return the fruits nor the value of the use of the possessed property if he acquired possession for a consideration.
(2) The possessor must be in good faith at the date of collection of the fruits. Civil fruits collected in advance shall revert to the possessor to the extent that his good faith is maintained at the date of their maturity.
(3) In the case provided for in paragraph (1), the possessor is not entitled to reimbursement of the usual maintenance expenses of the possessed property.
(4) The legal provisions regarding unjustified enrichment remain applicable to the extent that they do not contradict the provisions of this article.
Section 4
Acquisition of the right to the property owned
Article 498. Acquisition of the right to property
possessed
In the cases and under the conditions provided by law, the possessor under the name of owner may invoke the acquisition of the right over the possessed property from the moment of entering into possession (acquisitive possession in good faith, occupation, accession) or, as the case may be, from the moment of completing the term of possession provided by law (usucapion or acquisitive prescription).
Article 499. Extinction of possession
(1) Possession ceases if the possessor has definitively and expressly renounced actual possession of the property or otherwise loses actual possession of it.
(2) The temporary impossibility of exercising actual possession of the property does not lead to the termination of possession.
Title III
PROPERTY
Chapter I
GENERAL PROVISIONS
Article 500. Content of the right of ownership
(1) The owner has the right of possession, use and disposal over the property.
(2) The right of ownership is perpetual.
(3) The right of ownership may be limited by law or by the rights of a third party.
(4) The right of use also includes the person’s freedom not to use the property.
An obligation to use may be established by law if the non-use of the goods would be contrary to the public interest. In this case, the owner may be obliged either to use the goods himself or to make them available to third parties in exchange for appropriate consideration.
(5) The particularities of the right to use agricultural land shall be established by law.
(6) The owner is obliged to take care of and maintain the property belonging to him unless the law or the contract provides otherwise.
Article 501. Guarantee of property rights
(1) Property is, under the law, inviolable.
(2) The right to property is guaranteed. No one may be forced to give up his property, except for reasons of public utility and for just and prior compensation. Expropriation shall be carried out in accordance with the law.
(3) For works of general interest, the public authority may use the land of any real estate property with the obligation to compensate the owner for damages caused to the land, plantations or buildings, as well as for other damages attributable to it.
(4) The compensation provided for in paragraphs (2) and (3) shall be determined by mutual agreement with the owner or, in case of disagreement, by court decision.
(5) Licitly acquired goods may not be confiscated, except for those intended or used for the commission of contraventions or crimes. The licit nature of the acquisition of the goods is presumed.
Article 502. Extent of property rights
Everything that produces the property, as well as everything that unites the property or is incorporated into it as a result of the act of the owner, another person or a fortuitous event, belongs to the owner unless the law provides otherwise.
Article 503. Risk of accidental loss or damage
(1) The risk of destruction (including loss or theft) or accidental damage to the property is borne by the owner unless the law or the contract provides otherwise.
(2) In the case of goods delivered under a sale-purchase or contract with reservation of ownership, a leasing contract or another transfer contract of ownership in which the transfer of ownership is subject to a suspensive condition, the risks pass to the acquirer at the moment when he takes possession of the goods, unless the law or the contract provides otherwise.
Article 504. Rights acquired prior to transfer
property
The change of owner does not affect the rights of third parties over the property, acquired in good faith prior to the transfer of ownership.
Article 505. Limitation of property rights
through juridical acts
The owner may consent to the limitation of his right through juridical acts if this does not violate public order or good morals.
Article 506. The concept and conditions of the disalienability clause
(1) The alienation of an property may be prohibited by contract or will, but only for a maximum period of 49 years and if there is a serious and legitimate interest. The term begins to run from the date of acquisition of the property.
(2) The acquirer may be authorized by the court to dispose of the property if the interest that justified the inalienability clause of the property has disappeared or if a superior interest requires it.
(3) The nullity of the inalienability clause stipulated in a contract shall entail the nullity of the entire contract if it was decisive at the time of its conclusion. The decisive nature shall be presumed until proven otherwise.
(4) The inalienability clause is implied in contracts that give rise to the obligation to transfer property to a specific or determinable person in the future.
(5) The transmission of property by inheritance cannot be stopped by stipulating inalienability.
Article 507. Conditions for the enforceability of the clause
of inalienability
(1) The inalienability clause may not be invoked against the acquirers of the property or the creditors of the owner who has undertaken not to alienate it unless it is valid and meets the conditions for enforceability.
(2) For enforceability, the inalienability clause must be subject to the publicity formalities provided for by law, if applicable.
(3) In the case of movable property over which the right of ownership is not acquired, according to the law, by registration in a public register, the rules provided for the acquisition of property through possession in good faith shall apply accordingly.
(4) If the inalienability clause was provided for in a free transfer of ownership contract, it is also enforceable against the previous creditors of the acquirer.
(5) Failure to meet the conditions of enforceability does not deprive the beneficiary of the inalienability clause of the right to claim compensation from the owner who does not comply with this obligation.
Article 508. Sanctions for failure to comply with the clause
of inalienability
(1) The alienator may request rescission in the event of violation of the inalienability clause by the acquirer.
(2) Both the alienator and the third party, if inalienability was stipulated in his favor, may request the annulment of the subsequent alienation act concluded in breach of the clause.
(3) Goods for which inalienability was stipulated in a free transfer contract of ownership may not be subject to prosecution, as long as the clause is effective, unless otherwise provided by law.
Chapter II
ACQUISITION AND LOSS OF RIGHTS
OF PROPERTY
Section 1
Acquisition of property rights
Article 509. Ways of acquiring the right
property
(1) The right of ownership over a new good, made by a person for himself, is acquired by him unless the law or the contract provides otherwise.
(2) The right of ownership may be acquired, under the terms of the law, through occupation, juridical act, succession, accession, usucapion, as well as through a court decision when this is transfer of ownership as a result of acquisition in good faith.
(3) In the cases provided for by law, property may be acquired by effect of an administrative act.
(4) The law may also regulate other ways of acquiring the right of ownership.
Article 510. The moment of acquisition of the right of ownership
(1) The ownership right is transmitted to the acquirer at the moment of delivery of the movable property unless the law or the contract provides otherwise.
(2) In the case of immovable property, the ownership right is acquired on the date of registration in the immovable property register, with the exceptions provided by law.
Article 511. Delivery of property
(1) Delivery of the property means the handing over of the property to the acquirer, as well as to the carrier or the post office for shipment, if it is alienated without the obligation to transport it.
(2) The submission of the consignment note, bill of lading or other document giving the right of disposal over the goods is equivalent to the delivery of the goods.
Article 512. Lack of right or power of attorney
TRANSMITTER
(1) If the transferor lacks the right or authority to transfer the property right at the time when the property right should have passed according to art. 510, the transfer takes place at the time when the right is obtained by the transferor or when the person who has the right or authority to transfer has ratified the transfer.
(2) In the event of ratification, the transmission shall have the same effects as if it had been originally made by an authorized person. However, the rights acquired by third parties before ratification shall remain unaffected.
Article 513. Conditional right of the acquirer
(1) If, under the contract of sale or contract with reservation of ownership, the leasing contract or other contract of transfer of ownership, the transfer of ownership is subject to a suspensive condition, the right of the acquirer to pay the price under the terms of the contract and the right of the acquirer to acquire the right of ownership by payment are opposable to the creditors of the transferor.
(2) The provisions of paragraph (1) shall apply accordingly when the transfer of ownership to the acquirer is suspended until a condition other than the payment of the price is fulfilled.
Article 514. Multiple alienation
(1) In the event that there are several acts of alienation of the same movable property by the transferor, the ownership right is acquired by the acquirer who first enters into possession of the movable property.
(2) If the movable property has not been delivered, the creditor in whose favor the obligation arose earlier has the right of preference, and if it cannot be established in whose favor the obligation arose, the person who first filed the action has the right of preference.
(3) The provisions of this article do not apply to movable property over which the ownership right is acquired, according to the law, by registration in a public register.
Article 515. Occupation
(1) The possessor of an ownerless movable property becomes its owner, by occupation, from the date of taking possession under the terms of the law.
(2) Movable goods whose owner has expressly renounced the right of ownership, abandoned goods, as well as goods which, by their nature, have no owner, are considered ownerless.
Article 516. Found property
(1) Lost movable property continues to belong to its owner.
(2) The person who found the property is obliged to return it to the owner or former possessor, or, if the owner cannot be identified, to hand it over to the local public administration authorities or the police body in the locality where it was found.
(3) Property found in a public place or means of public transport shall be handed over to the owner of the place or means of transport, who shall assume the rights and obligations of the person who found it, except for the right to compensation.
(4) The person who found the property is liable for its loss or damage only in case of intent or gross negligence and only within the limits of its price.
(5) The authorized body to which the found property was handed over shall display an announcement about the found property at its headquarters, having the obligation to keep it for 6 months, the provisions regarding the necessary deposit being applicable in this regard.
(6) If, due to the circumstances or nature of the property, its preservation tends to diminish its value or becomes too costly, it shall be sold in accordance with the law. In such a case, the rights and obligations relating to the property shall be exercised in relation to the amount received from the sale.
Article 517. Acquisition of property rights
on the found property
(1) If the owner or another entitled person does not claim, within 6 months, the transfer of the found property, it shall be returned, based on a report, to the person who found it. The report shall constitute a title of ownership for the latter, also enforceable against the former owner.
(2) If the person who found the property waives his rights, it shall become the property of the state.
(3) If, in accordance with this article, ownership of an animal has been acquired, the former owner may, if it is established that the animal has shown him/her ill-will or that the new owner has behaved cruelly towards the animal, request its return.
Article 518. Obligation of the owner of the found property
to offset expenses and to
pay rewards
(1) The owner or former possessor of the found property is obliged to compensate for the expenses related to its preservation. If the found property has been sold, the expenses for preservation and marketing shall be deducted from the amount received.
(2) The owner or former possessor of the found property is obliged to pay the finder a reward of no more than 10% of the price or current value of the property.
(3) If the property has no commercial value or if the payment of the reward for it could not be established amicably, the person who found it is entitled to an amount established by the court.
(4) If the owner has made a public offer of reward, the person who found the property has the right to choose between the amount to which the owner committed himself through the offer and the reward established by law or by the court.
Article 519. Treasure
(1) Treasure is any hidden or buried movable property, even involuntarily, whose owner cannot be identified or has lost, under the law, the right of ownership.
(2) If a treasure is discovered in an immovable property, it belongs half to the owner of the immovable property in which it was discovered and half to the discoverer unless they agree otherwise. The latter is not entitled to anything if he entered the immovable property or searched it without the consent of the owner or possessor. The consent of the owner or possessor is presumed until proven otherwise.
(3) In the event of the discovery of a treasure consisting of an property (property) recognized as a monument of history or culture, it shall be transferred to the ownership of the state. The owner of the real estate in which the treasure was discovered, as well as the discoverer, shall have the right to receive a reward in the amount of 50% of the price of the treasure. The reward shall be divided equally between the owner of the real estate in which the treasure was discovered and the discoverer, unless otherwise agreed between them. The reward shall be paid in full to the owner if the discoverer has entered the real estate or searched it without the consent of the owner or possessor.
(4) The provisions of this article do not apply to persons who have carried out, in the interest of third parties, including in the exercise of their official duties, archaeological research or searches as a result of which the treasure was discovered.
Article 520. Natural real estate accession
(1) Additions to the banks of flowing waters shall belong to the owner of the riparian land only if they are formed gradually (alluvium). The owner of the riparian land shall also acquire the land left by flowing waters which have gradually retreated from the respective shore.
(2) The owner of land surrounded by ponds, lakes, canals or other such waters does not become the owner of the land created by the temporary lowering of the waters below the height of the overflow. The owner of such waters does not acquire any right over the land covered as a result of sporadic overflows.
(3) The owner of the land from which a flowing water has suddenly torn off a part of the bank of the land, attaching it to the land of another, does not lose the right of ownership over the detached part if he claims it within one year from the date when the owner of the land to which the part was attached took possession.
(4) If a flowing water, forming a new arm, surrounds the land of a riparian owner, he remains the owner of the island thus created.
Article 521. Artificial real estate accession
(1) Constructions and works underground or on the surface of the land are presumed to be made by the owner of the land at his expense and belong to him until proven otherwise. Works are understood as planting, as well as arrangements made to a land that are not permanently incorporated into it.
(2) The landowner who has carried out construction and other works with foreign materials becomes the owner of the work, and cannot be obliged to remove it or return the materials used. He is obliged to pay the value of the materials to the owner of the materials. If the works were carried out in bad faith, the landowner is also obliged to repair the damage caused.
(3) If the constructions or works are made by a third party, the owner of the land has the right to keep them for himself or to oblige the third party to remove them at his own expense and to repair the damage caused. If he keeps the constructions or works made by a third party, the owner is obliged to pay, at his option, the value of the materials and the cost of the work or a sum of money equal to the increase in the value of the land.
(4) If the constructions or works are carried out by a third party in good faith, the land owner may not demand their removal and is obliged to pay, at his/her option, the value of the materials and the cost of the work or an amount of money equivalent to the increase in the value of the land.
(5) Instead of keeping the constructions or works made by a third party, the owner has the right to request that the author of the work be obliged to purchase the land or portion affected by the construction or work at the market value that the land or portion would have had if the construction or work had not been carried out. In the absence of an agreement between the parties, the owner may request the court to establish the price and issue a decision that will take the place of a sale-purchase contract.
(6) If the construction is built partly on the builder’s land and partly on a neighboring land, the neighboring owner may acquire ownership of the entire construction, paying compensation to the builder, only if at least 1/2 of the constructed area is on his land. In this case, he will also acquire a superficies right on the related land for the entire duration of the construction. The compensation must cover the value of the materials and the cost of labor, as well as the value of the use of the related land.
(7) The builder in bad faith may not claim compensation exceeding one third of the amount calculated according to paragraph (6) unless he proves that the entitled person himself bears part of the guilt.
(8) The holder of the superficies right shall, in the event of accession, have the rights and obligations regulated for the owner of the land, unless otherwise provided at the time of the establishment of the superficies right.
Article 522. Accession of movable property
(1) In the event that two movable property with different owners are united, each of them may claim the separation of the property if the other owner would not suffer any prejudice thereby.
(2) If two property belonging to different owners have been joined so that they cannot be separated without being damaged or without excessive work or expense, the new property belongs to the owner who contributed the most to the creation of the property, through work or through the value of the original property, being obliged to pay the other owner the price of the property joined with the main property. If none of the joined property can be considered the main property, their owners become co-owners of the new property, in proportion to the value that the original property had at the time of accession.
(3) If the secondary property is more valuable than the main property and has been combined with it without the knowledge of the owner, the latter may request the separation and return of the combined secondary property, even if the separation would result in damage to the main property.
(4) Unless the contract provides otherwise, the right of ownership of the good resulting from the processing of the material belongs to its owner, who is obliged to pay the value of the labor. Writing, drawing, painting, printing, engraving or any other transformation of the surface is also considered processing.
(5) A person in good faith who has transformed through labor the material that does not belong to him acquires the right of ownership over the resulting good if the value of the labor is higher than the value of the material, paying the owner the price of the material.
(6) The person who must return the property resulting from the processing of the material is entitled to retain it until he receives the amount owed from the owner of the new property.
(7) If an property is formed by mixing several materials (confusion) belonging to different owners and none of them can be considered as the main material, the owner who was not aware of the confusion may demand the separation of the materials if possible. If the mixed materials cannot be separated without damage, the property formed belongs to the owners of the materials in proportion to the quantity, quality and value of the material of each.
(8) If the material of a bona fide owner exceeds the other material in value and quantity, he may demand the good created by mixing, paying the other owner the price of the material or replacing the material with material of the same nature, quantity, weight, size and quality or paying its equivalent.
(9) The provisions of this article shall apply to the extent that the law or the contract does not provide otherwise.
Article 523. Good faith acquisition of the right
registered under the juridical act
(1) The acquirer in good faith acquires the right registered in his favor, on the basis of a juridical act, in the real estate register or in another public register of a constitutive nature, within the meaning of art. 420, and in the case where the person who disposed of the right was not its true owner, did not have the powers to dispose of the right or the juridical act of disposal is ineffective on another basis. Good faith must subsist until the moment of filing the application for registration of the right.
(2) The acquirer in good faith shall not acquire, pursuant to paragraph (1), the registered right if the acquirer obtained it free of charge or the acquirer did not enter into possession of the property that is the subject of the registered right.
Article 524. Usucaption of the right under
the contents of the advertising register
(1) If the person has been registered in the real estate register or in another public register of a constitutive nature, within the meaning of art. 420, as the holder of a real right or other patrimonial right (the registered right), and his right is liable to cancellation or other rectification on one of the grounds provided for in art. 439 paragraph (1) letter a) or b), the right shall remain registered validly in favour of that person and no cancellation or other rectification shall be allowed without the consent of the registered person, if the person has exercised possession under the name of the owner of the property over which he bears the registered right:
a) for 3 years, if he acquired the right for a consideration and, throughout the entire duration of possession, he possessed it in good faith;
b) for 5 years, if he acquired the right free of charge and, throughout the entire period of possession, he possessed it in good faith; or
c) for 10 years, in other cases.
(2) When calculating the terms provided for in paragraph (1), the possession under the owner’s name exercised after the date of filing the application for registration in favor of the possessor shall be taken into account.
(3) Until proven otherwise, it is presumed that the person began to exercise possession from the date of filing the application for registration in favor of the possessor.
(4) The provisions of this Article shall apply accordingly to provisionally registered rights.
Article 525. The bona fide acquirer of the right
Joined
(1) For the purposes of art. 524, a person registered or provisionally registered in the register as the holder of a right shall be considered a bona fide acquirer if, on the date of filing the application for registration or provisional registration of the right in his favor, the following conditions are met:
a) no action was noted in the register that would later be admitted by a court decision recognized by law as being opposable to the acquirer; no right, juridical act or legal fact was noted that would establish such a subsequent action;
b) from the unerased information contained in the register, no grounds arise that would justify its rectification in favor of another person;
c) the acquirer did not otherwise know of the inaccuracy of the unerased information contained in the register; and
d) if applicable, the acquirer did not know and should not have known the reason why the basis on which he acquires the registered right or on which the acquirer’s direct author acquired the registered right is null, voidable or ineffective.
(2) Good faith is presumed until proven otherwise.
Article 526. Usucaption of the right contrary to the content
advertising register
(1) The ownership right over an immovable or movable property may be registered in the immovable property register or in another public register of a constitutive nature, within the meaning of art. 420, on the basis of the court decision establishing usucaption, in favor of the possessor under the name of the owner who has possessed it for 10 years, in one of the following situations:
a) the owner registered in the advertising register has died or, as the case may be, has ceased to exist legally;
b) the declaration of renunciation of ownership was registered in the advertising register;
c) the real estate is land, with or without buildings, which has not been subject to primary registration in the real estate register.
(2) In all cases, the possessor may acquire the right only if he has filed the application for registration of the property right, pursuant to the court decision, in the public register before a third party has filed his own application for registration of the right in his favor, based on a legitimate basis, during or even after the expiration of the term necessary for usucaption.
(3) In the cases provided for in paragraph (1) letters a) and b), the term required for usucaption shall not begin to run before the date of death or, as the case may be, the date on which the legal existence of the owner ceased, respectively before the date of registration of the declaration of renunciation of ownership, even if the entry into possession of the property occurred on an earlier date.
Article 527. Good faith acquisition of the right
ownership of movable property
(1) The acquirer in good faith acquires the right of ownership over the movable property by taking possession and in the case where the person who disposed of the property was not its owner, did not have the authority to dispose of the property or the juridical act of disposal was ineffective on another basis. There is no good faith when the acquirer knew or should have known that the person from whom he acquired the property was not its owner, did not have the authority to dispose of the property or the juridical act of disposal was ineffective on another basis. Good faith must subsist up to and including the moment of taking possession.
(2) A bona fide acquirer shall not acquire ownership under paragraph (1) if the property is stolen, lost or otherwise removed from the owner’s possession against his will or the acquirer obtained it free of charge. This rule shall not apply to the acquisition of money, bearer securities or property alienated at auction.
(3) The provisions of this Article shall not apply to:
a) movable property over which the ownership right is acquired, according to the law, by registration in a public register;
b) movable cultural property;
c) if the act by virtue of which the acquirer acquired the property is null and void or voidable.
(4) The provisions of this article shall apply accordingly also in cases where the law allows the acquisition by usucaption of certain limited real rights over movable property.
Article 528. Good faith acquisition of the right
property free from real rights
limited
(1) If the movable property is encumbered with a limited real right of a third party and the transferor does not have the right or the power to dispose of the property free from the right of the third party, the acquirer of the ownership right, nevertheless, acquires this right free from the right of the third party if the following conditions are cumulatively met:
a) the acquirer has taken possession of the movable property;
b) the acquirer acquired the property for consideration;
c) at the time the ownership right passes, the acquirer did not know and could not reasonably have known that the transferor did not have the right or authority to transfer the ownership right over the property free from the right of a third party. The acquirer shall bear the burden of proving the facts from which it emerges that the acquirer could not reasonably have known that the transferor did not have the said right or authority.
(2) The provisions of this article shall not apply in the cases provided for in art. 527 para. (3) letters a)-c).
Article 529. Usucaption of movable property
(1) The possessor under the name of owner acquires the right of ownership through possession of the movable property:
a) for 3 years, if the possessor acquired the property for a consideration and, throughout the duration of the possession, possessed it in good faith;
b) for 5 years, if the possessor acquired the property free of charge and, throughout the duration of possession, possessed it in good faith; or
c) for 10 years, in other cases.
(2) The possessor who invokes usucaption in good faith is presumed to have begun to possess from the date of the act or the occurrence of another reason on which he justifies his entitlement.
(3) The person who has taken possession of the movable property by theft does not acquire the right of ownership under this article.
(4) The usucaption provided for in this article shall not apply to movable property over which the ownership right is acquired, according to the law, by registration in a constitutive public register within the meaning of art. 420.
Article 530. Usucaption of movable cultural property
mobile
(1) If the property constitutes a movable cultural property, the possessor may not acquire the right of ownership under Articles 523, 524 or 529 before the expiry of the 30-year period from the moment when:
a) the movable cultural property that entered the territory of the Republic of Moldova left the territory of the foreign state in violation of the applicable law; or
b) the owner of the movable cultural property has lost possession of the property on the territory of the Republic of Moldova.
(2) In the case of movable cultural property belonging to cults or their component parts, the term provided for in paragraph (1) shall be 75 years.
Article 531. Union of possessions
(1) The possessions of previous possessors may be invoked only to the extent that they met the necessary conditions for usucapion invoked by the current possessor, and all the possessions invoked are consecutive.
(2) The current possessor in good faith may invoke the possession of the previous possessor in bad faith only to usurp under art. 524 para. (1) let. c) or art. 529 para. (1) let. c).
Article 532. Possession necessary for usucaption
(1) Except in cases expressly provided for by law, only useful possession may produce legal effects. Until proven otherwise, possession is presumed to be useful.
(2) Discontinuous, disturbed, clandestine or precarious possession is not useful.
(3) Possession is discontinuous as long as the possessor exercises it with abnormal intermittency in relation to the nature of the good. Possession is considered continuous if it was lost without the will of the possessor, provided that it is returned within the term of 1 year or if, within the same term, the possessor files an action as a result of which possession is returned.
(4) Possession is disturbed as long as it is acquired or preserved through acts of violence, physical or moral, which are not provoked by another person.
(5) Possession is clandestine if it is exercised in such a way that it cannot be known.
(6) Possession is precarious when it is not exercised under the name of the owner.
(7) Discontinuity may be opposed to the possessor by any interested person.
(8) Only the person against whom the possession is disturbed or clandestine may invoke these defects.
(9) Defective possession becomes useful as soon as the defect ceases.
Article 533. Interruption of the necessary term
for invoking usucaption
(1) The period required for invoking usucapion (acquisitive prescription) may not begin, and if it has begun, it may not continue, during the period in which the period of extinction of the claim action is suspended. The fact that the owner does not know where the movable property is located does not prevent the period from beginning, nor does it suspend the period if the possession is not clandestine.
(2) The period of limitation required for invoking usucapion shall be interrupted if an action for recovery or, as the case may be, for rectification of the register of advertisements has been filed against the person who possesses under the name of the owner or against the mediated possessor, provided that the action is admitted. In this case, the period of limitation shall be interrupted only against the person who filed the action.
(3) If the course of the limitation period has been interrupted, the time elapsed until the interruption shall not be calculated. After the interruption, a new term may begin.
Article 534. Effect of acquisition in good faith
or usucaption of the right
of property and its encumbrances
(1) The previous holder loses his right from the moment someone else acquired it, under the terms of the law, through acquisition in good faith or, as the case may be, through usucaption.
(2) If the person who acquired in good faith or, as the case may be, by usucapion knew or should have known that the right he acquires is encumbered with the limited real right of a third party, the encumberment shall continue to exist according to its conditions.
(3) If the absolute or relative nullity of the contract under which the usufructuary acquired the real right has been established, he may oppose the obligation to return the right by invoking usufruct under the terms of the law. In this case, the other contracting party may oppose the obligation to return the enrichment received from the usufructuary.
Article 535. Extinction of rights based on the rules
unjust enrichment and liability
TORT
From the moment the right is acquired, under the terms of the law, by someone else through acquisition in good faith or, as the case may be, through usucapion, the previous holder also loses all rights to demand from the acquirer the monetary value of the lost right, as well as the value of the use that the acquirer will enjoy after the date of usucapion, which could be based on the legal provisions regarding unjust enrichment or tortious liability.
Section 2
Loss of ownership
Article 536. Grounds for loss of property rights
(1) The right of ownership is lost, under the terms of the law, following the consumption, accidental loss or destruction of the property, its alienation pursuant to a juridical act, renunciation of the right of ownership, as well as in other cases provided for by law.
(2) No one may be forced to cede his property, except in cases where, according to the law, it is carried out:
a) tracing of property in relation to the owner’s obligations;
b) alienation of goods that, according to the law, the person cannot own;
c) redemption of domestic animals in case of violation of the rules of behavior with them;
d) privatization of state property;
e) expropriation for public utility reasons;
f) requisition;
g) confiscation;
h) other actions provided for by law.
Article 537. Renunciation of the right of ownership
(1) The owner may at any time renounce the right of ownership by means of a declaration to this effect or in another manner which attests with certainty that he renounced the property without the intention of retaining the right of ownership over it.
(2) The obligations of the owner in relation to the property he has relinquished cease when a third party acquires the right of ownership over the property.
(3) The renunciation of the right of ownership over real estate shall be made through a notarially authenticated declaration and registered in the real estate register.
Article 538. Tracing of property in connection
with the owner’s obligations
(1) The alienation of the owner’s property by applying the property tracing procedure in relation to his obligations may be carried out only on the basis of a court decision unless another method is established by law or contract.
(2) The owner loses the right of ownership over the property sought at the moment of acquisition of the right of ownership over them by the entitled person to whom the property are transferred.
Article 539. Alienation of property which,
according to the law, the person cannot
owned
(1) If, on the grounds provided by law, a person has acquired the right of ownership over an property which, according to the law, cannot belong to him by right of ownership, the owner is obliged to alienate the property within one year from the moment of acquiring the right of ownership or within another term established by law.
(2) If the owner does not alienate the property within the term established in paragraph (1), the court, at the request of the local public administration authority, may order, as the case may be, the alienation of the property and the remittal of the amount obtained to the former owner, withholding the alienation expenses, or the transfer of the property to the state and the compensation of the owner in the amount established by the court.
(3) The provisions of paragraphs (1) and (2) shall also apply in cases where the person has acquired ownership, on the grounds provided by law, of an property for which a special authorization is required and has been refused the issuance of such authorization.
Article 540. Redemption of domestic animals
in case of violation of the rules of conduct
with them
If the owner of domestic animals behaves with them in a clear violation of the rules established by law or by the norms of humane behavior with animals, any person has the right to request the surrender of the animals. The price is established by agreement of the parties or by court decision.
Article 541. Requisition
(1) In case of natural disaster, epidemic, epizootic or in another exceptional situation, the owner may be dispossessed of the property pursuant to a decision of the public authority, in the manner and under the conditions established by law.
(2) The person whose property has been requisitioned may request its restitution if, after the end of the exceptional situation, it has been preserved in kind.
(3) The price of the good or the price of its use, if it was preserved in kind and was returned to the owner, shall be established by agreement of the parties, and in case of divergence, by court decision.
Article 542. Confiscation
(1) The confiscation of property is permitted by a court decision in the cases and under the conditions provided for by law.
(2) In cases provided for by law, the owner’s property may be confiscated by an administrative act. The administrative act on confiscation may be appealed in court.
Chapter III
COMMON PROPERTY
Section 1
General provisions
Article 543. Common property. Grounds for its emergence
(1) Ownership is common if two or more owners have ownership rights over an property.
(2) Common ownership may arise under the law or on the basis of a juridical act.
Article 544. Forms of common property
(1) Common property may be characterized by the delimitation of each owner’s share (share-share property) or by the non-delimitation of the share-shares (share-share property).
(2) If the property is joint, ownership in shares is presumed until proven otherwise.
(3) The co-owners of the common property may assign the regime of common ownership on shares to the common property.
Section 2
Joint ownership in shares
Article 545. Share in common property
in shares
(1) Each co-owner is the exclusive owner of an ideal share of the common property. The shares are presumed to be equal until proven otherwise. If the property was acquired by a juridical act, proof to the contrary may only be provided by written documents.
(2) The co-owner who has made inseparable improvements to the common property at his own expense, with the consent of the other co-owners, has the right to request the respective modification of the shares or compensation for expenses.
Article 546. Use of common property
in shares
(1) Each co-owner has the right to use the common property on a shared basis to the extent that it does not change its purpose and does not prejudice the rights of the other co-owners.
(2) The manner of using the common property shall be established by agreement of the co-owners or, in case of disagreement, by court decision based on a fair assessment of the interests of all co-owners.
(3) The co-owner is entitled to claim possession and use of a part of the common property corresponding to his share, and in case of impossibility, to demand payment of fair compensation from the co-owners who possess and use the property.
(4) The co-owner who exclusively exercises the use of the common property without the consent of the other co-owners may be required to pay compensation.
Article 547. Fruits produced by property
common in shares
(1) The fruits produced by the property jointly owned on a share basis shall belong to all co-owners in proportion to the share held, unless they have established otherwise.
(2) The co-owner who alone incurred the costs of producing or picking the fruit has the right to compensation for these costs by the co-owners in proportion to their share.
Article 548. Benefits and burdens of ownership
common on shares
The co-owners will share the benefits and bear the burdens of the common property in shares in proportion to their share.
Article 549. Acts of preservation of property
joint ownership in shares
Each co-owner may carry out acts of conservation of the jointly owned property on a share basis without the consent of the other co-owners and claim compensation for expenses in proportion to their share.
Article 550. Administration and disposition acts
regarding jointly owned property
on a pro-rata basis
(1) Administrative acts such as the conclusion or termination of lease contracts, assignments of real estate income and the like regarding the common property may only be made with the consent of the co-owners holding the majority of the shares.
(2) Administrative acts that substantially limit the possibility of a co-owner to use the common property in relation to his share or that impose an excessive burden on him in relation to his share or to the expenses borne by the other co-owners may only be carried out with his consent.
(3) The interested co-owner or co-owners may request the court to substitute the consent of the co-owner who is unable to express his will or who abusively opposes the performance of an administrative act indispensable to maintaining the utility or value of the property.
(4) Any juridical acts of disposition regarding the common property, acts of use for free, assignments of real estate income and leases concluded for a term exceeding 3 years, as well as acts that aim exclusively at beautifying the property may only be concluded with the consent of all co-owners. Any juridical act for free will be considered an act of disposition.
(5) Juridical acts concluded in violation of the provisions of paragraphs (1)-(4) are unenforceable against the co-owner who did not consent, expressly or tacitly, to the conclusion of the act.
(6) The injured co-owner is recognized the right, before the partition, to exercise the actions of possession against the third party who would have entered into possession of the common property following the conclusion of the act. In this case, the restitution of possession of the property shall be made for the benefit of all co-owners, with compensation, if applicable, for those who participated in the conclusion of the act.
Article 551. Juridical actions of the co-owner
(1) Each co-owner may stand alone in court, regardless of procedural capacity, in any action regarding co-ownership, including in the case of a claim action.
(2) Court decisions rendered in favor of a co-owner shall benefit all co-owners. Court decisions against a co-owner shall not be enforceable against the other co-owners.
(3) When the action is not brought by all the co-owners, the defendant may request the court to bring the other co-owners into the case as plaintiffs, within the term and conditions provided for in the Code of Civil Procedure for summoning other persons to court.
Article 552. Right of pre-emption
(1) In the event of the sale of a share of the property jointly owned by shares, except in the case of sale at auction, the other co-owners have a pre-emptive right with respect to the share being sold. The provisions of art. 1143-1150 remain applicable.
(2) In the event of a sale at auction, the co-owner or the auction organizer shall notify the other co-owners at least 10 days before the date of the sale. At equal prices, the co-owners shall have the right of pre-emption in the awarding of the share.
Article 553. Tracking the share of property
common in shares
(1) The creditors of a co-owner may pursue his ideal share of the jointly owned property on a pro rata basis or may request the court to divide the property, in which case the pursuit shall be made on the part of the property or, as the case may be, on the amount of money due to the debtor.
(2) In the event of a forced sale of a share, the bailiff shall notify the other co-owners at least 10 days before the date of sale. At equal price, the co-owners shall have the right of pre-emption in the adjudication of the share.
(3) Creditors who have a security right over the property jointly owned in shares or those whose claim arose in connection with its preservation or administration have the right to pursue the joint property or the amounts resulting from the sharing.
(4) The acts of suspension of the division may be opposed to the creditors if they are authenticated or, as the case may be, the publicity formalities provided by law are fulfilled.
(5) The personal creditors of a co-owner may also intervene at their own expense in the partition requested by the co-owners or by another creditor. However, they may not challenge a partition that has been made, except in the case where it took place in their absence, without taking into account the opposition they have made and in the case where the partition is simulated or is carried out in such a way that the creditors cannot object.
(6) The provisions of paragraph (5) are also applicable to creditors who have a security right over the property owned jointly in shares or to those whose claim arose in connection with the preservation or administration of the property.
Article 554. Exclusion of co-owner
(1) Co-owners may request the court to exclude the co-owner who, through his own act, through the act of those to whom he has ceded the use of the property or of those for whom he is held liable, seriously violates the rights of the other co-owners.
(2) In the case provided for in paragraph (1), the co-owner is obliged to alienate his share. In case of refusal, its forced sale shall be ordered by court decision.
Article 555. Property right in condominium
(1) In the event that a condominium has been established, the exclusive ownership right over the unit and the share of the joint ownership right over the common parts form an indivisible unit (the ownership right in the condominium) and cannot be alienated or encumbered separately. Any clause to the contrary is null and void.
(2) Condominium represents the totality of real estate consisting of a land with one or more buildings under the terms of the law, in which there are:
a) dwellings, isolated rooms with a purpose other than dwelling or parking spaces within the building if they meet the conditions provided for by law, built or to be built, registered under a separate cadastral number in the real estate register (units). The units are subject to exclusive ownership; and
b) the land and parts of the building in the condominium that are not units and are intended for the use of all the owners in the condominium or some of them, as well as other goods that, according to the law or the act of incorporation of the condominium, are intended for the common use of all the owners in the condominium or some of them (common parts). The common parts are subject to the right of forced and perpetual common ownership.
(3) For the purposes of paragraph (2) letter b), the land of the condominium shall be the land, within the established boundaries, on which the condominium building is located and the related land necessary for the proper servicing and exploitation of the building and, in the case of residential buildings, for ensuring the social and housing needs of the condominium members, which shall constitute common property in shares of all owners of the condominium. If the owners of the common parts hold only a superficies right over the condominium land or another right provided for by law, then the right over the land shall be part of the common parts, and references to the land shall be considered references to the respective right over the land.
(4) Upon a change of the holder of the exclusive ownership right over the unit, the share of the joint ownership right shall also pass to the new owner. Any contrary clause shall be null and void.
(5) The manner of establishing and administering property in a condominium is regulated by law.
Article 556. Joint ownership in shares over
common partitions
(1) Any wall, ditch or other partition between two plots of land located within the built-up area is presumed to be in the joint ownership of the neighbors in equal shares unless the contrary results from the title, from a sign of non-community according to the urban planning regulations or unless the joint ownership has become exclusive property through usucaption.
(2) The share of the rights over the common partitions shall be considered an accessory good. The alienation or mortgage of the share may only be made together with the right over the land.
Article 557. Termination of joint ownership by shares
by sharing
(1) The termination of joint ownership by way of partition may be requested at any time by any of the co-owners unless the law, contract or court decision provides otherwise.
(2) Partition may be requested even when one of the co-owners has exclusively used the property, except in the case of usurpation, under the terms of the law.
(3) The partition may be made by a partition contract between the co-owners or, in the absence of a partition contract, by court decision by filing a partition action by any of the co-owners.
(4) The legal provisions regarding juridical acts of disposition shall apply to the share-sharing contract.
Article 558. Inadmissibility of partition
(1) Partition is inadmissible in the cases referred to in articles 555 and 556, as well as in other cases provided for by law.
(2) The division may be carried out in the case of a condominium when there is the agreement of all co-owners or when the goods in question are no longer intended for common use.
Article 559. Postponement of partition
(1) Contracts for the postponement of partition may not be concluded for a period exceeding 5 years. In the case of real estate, contracts must be concluded in authentic form and recorded in the real estate register.
(2) For valid reasons, the court may order, at the request of any co-owner, the division even before the period established by the contract.
(3) The court may order the postponement of the partition if this is necessary to protect the interests of the other co-owners. The court may order the partition if the circumstances considered at the date of the postponement decision have changed.
Article 560. Suspension of the pronouncement of the partition
by court order
The court notified of the partition request may suspend the partition decision for a maximum of 1 year, in order to avoid serious prejudice to the interests of the other co-owners. If the danger of such prejudice is removed before the expiry of the term, the court, at the request of the interested party, will reconsider the measure.
Article 561. How to divide property
common in shares
(1) The division of the common property into shares shall be done in kind, proportional to the share of each co-owner.
(2) Goods that make up an economic unit, a set or another universality whose separation will reduce its value shall not be shared in kind if at least one of the co-owners opposes such a way of sharing.
(3) If the property owned jointly in shares is indivisible or is not conveniently divisible in kind, the division shall be made by:
a) the assignment of the entire property, in exchange for a share, in favor of a co-owner or in favor of several co-owners, at their joint request. In the case of several requests for assignment that contradict each other, the court shall apply the provisions of art. 562;
b) selling the property in the manner established by the co-owners or, in case of disagreement, at auction and distributing the price to the co-owners in proportion to the share of each of them, if none of the co-owners has requested the assignment of the entire property or if this request cannot be satisfied.
(4) If one of the co-owners is assigned a real share (allocation lot) greater than his/her share, the other co-owners are assigned a surplus.
(5) In the event of the division of a property, the court may establish a right of easement or another limited real right to allow the appropriate use of the newly formed property.
(6) The court may not order a method of division to which all co-owners object.
Article 562. Attribution of property in the case of several
APPLICATIONS
(1) In the case of several requests for assignment that contradict each other, when assigning the property to a co-owner, the special needs and interests of each co-owner, the wishes of the holders of the shares that form the majority of all shares and previous agreements shall be taken into account.
(2) The co-owner has the preferential right to the assignment of the home in which he had his usual residence on the date of filing the partition action, as well as, where applicable, to the furniture with which the home is equipped.
(3) The co-owner has the preferential right to the assignment of the property that he was using in carrying out an entrepreneurial or business activity on the date of filing the partition action, as well as over the movable property with which he was endowed.
(4) In the event that several co-owners invoke preferential rights, the ability of the applicants to administer and maintain the property in question shall be taken into account. In the event that the property relates to an activity or is a social part of a commercial company, the duration of the applicant’s personal participation in that activity prior to the date of filing the partition action shall be taken into account.
Article 563. Settlement of debts in case of partition
(1) Any of the co-owners may request the discharge of debts arising in connection with the joint ownership in shares, which are due or become due during the year in which the division takes place.
(2) The amount necessary to settle the obligations arising from paragraph (1) shall be taken, in the absence of a contrary stipulation, from the sale price of the common property upon division and shall be borne by the co-owners in proportion to each one’s share.
Article 564. Effects of the division of common property
(1) Each co-owner becomes the exclusive owner of the property or the amount of money assigned only from the date of division, with the exception of real estate and other property over which the ownership right appears, according to the law, on the date of registration in the corresponding public register.
(2) The acts concluded, under the law, by a co-owner of the property in common ownership on shares remain valid and are opposable to the person who acquired the property as a result of the division.
(3) The partition does not affect the real rights of third parties over the property established before the partition.
(4) The guarantees established by a co-owner over his share are transferred by right over the property or the amount of money assigned through partition.
(5) The partition that took place before the term stipulated in the co-owners’ agreement is not opposable to the creditor who holds a pledge or mortgage on a share if he did not consent to the partition or if his debtor does not retain the right of ownership of at least the respective part of the property.
Article 565. Guarantee obligation of co-owners
(1) The co-owners owe, within the limits of their shares, a guarantee for eviction and hidden defects, the provisions regarding the seller’s guarantee obligation applying accordingly.
(2) Each of the co-owners is obliged to compensate the co-owner prejudiced by the effect of the eviction or the hidden defect. If one of the co-owners is insolvent, the part owed by him shall be borne proportionally by the other co-owners.
(3) Co-owners do not owe a guarantee if the damage is the result of an act committed by another co-owner or if they were exempted by the partition deed.
Article 566. Nullity of the sharing agreement
(1) The sharing contract may be terminated for the same reasons as juridical acts.
(2) The sharing contract made without the consent of all co-owners is subject to absolute nullity.
(3) The partition agreement is valid even if it does not include all the property of common ownership in shares. For the omitted property, an additional partition agreement may be made at any time.
(4) The relative nullity of the sharing contract cannot be invoked by a co-owner who, knowing the cause of nullity, alienates the assigned property in whole or in part.
Section 3
Common property in turmoil
Article 567. General provisions regarding property
common in the wilderness
(1) If the property right belongs simultaneously to several persons without any of them being the holder of an ideal share of the common property, the property is joint in common.
(2) The provisions regarding joint ownership in shares shall apply accordingly to joint ownership in shares, unless this section provides otherwise.
Article 568. Use of common property
in disarray
Each co-owner of the common property has the right to use the common property according to its intended purpose, without limiting the rights of the other co-owners unless otherwise provided in the contract.
Article 569. Preservation and administration acts
of the common property in
chaos
Any of the joint owners is presumed to have the consent of the others for carrying out any acts of conservation and administration of the common property in the joint property unless the law or the contract provides otherwise.
Article 570. Acts of disposition of property
common property in the wilderness
(1) Each of the joint owners may dispose of the movable property that is jointly owned in the joint ownership unless the agreement concluded between them provides otherwise.
(2) For acts of disposition of real estate property jointly owned in a devalmășie, the written consent of all devalmășie co-owners is required.
(3) The juridical act of disposition concluded by one of the co-owners of the property may be declared null and void if it is proven that the other party knew or should have known about the agreement limiting the right of disposition, about the fact that the other co-owners of the property are against the conclusion of the juridical act or that consent was not requested for the alienation of the real estate.
Article 571. Division of jointly owned property
in disarray
The division of the property jointly owned in a devalmășie between the devalmăși co-owners shall be made in proportion to the contribution of each to the acquisition of the property. Until proven otherwise, the contribution of the devalmăși co-owners is presumed to be equal.
Article 572. Common property in the wilderness
of the spouses
(1) The property acquired by the spouses during the marriage is their common property in common unless, in accordance with the law or the contract concluded between them, another legal regime is established for these properties.
(2) Any property acquired by the spouses during the marriage shall be presumed to be joint property in common until proven otherwise.
(3) If the common property represents a right which, according to the law, is acquired by registration in a public register, and the right is registered only for the benefit of one of the spouses, either spouse may request that the quality of that right as common property of the spouses be noted in the public register. In the absence of such notation, the quality of that right as common property of the spouses cannot be invoked against the third party acquiring the registered right or an encumbrance on that right, unless it is demonstrated that the acquirer knew of this quality in another way.
Article 573. Personal property of each person
between spouses
(1) The property that belonged to the spouses before the marriage, as well as those acquired by them during the marriage based on a donation contract, by inheritance or otherwise gratuitously, are the exclusive property of the spouse to whom they belonged or who acquired them.
(2) Goods for individual use (clothing, footwear and the like), with the exception of jewelry and other luxury items, are personal property of the spouse who uses them, even if they are acquired during the marriage from the spouses’ common means.
(3) The property of each spouse may be declared their joint property in the event of dissolution if it is established that during the marriage investments were made from their joint means which significantly increased the value of these property.
Article 574. Determination of the shares of property
common in the chaos of the spouses in the case
division of property
(1) In the case of the division of property jointly owned by the spouses, their shares are considered equal.
(2) The property of the spouses in common property may be divided both upon divorce and during the marriage. The division of the common property during the marriage does not affect the legal regime of the property that will be acquired in the future.
Chapter IV
PERIODIC PROPERTY
Article 575. Periodic ownership
(1) The provisions of this chapter shall apply, in the absence of a special regulation, whenever several persons (co-owners) successively and repetitively exercise the attribute of use specific to the right of ownership over a movable or immovable property, in determined, equal or unequal time intervals.
(2) The provisions of this chapter do not apply if there is a joint ownership right on the property in shares, and the co-owners have agreed on a method of use within determined time intervals.
(3) The legal provisions regarding joint ownership in shares shall apply accordingly to periodic ownership to the extent that they do not contradict the provisions of this chapter.
Article 576. Basis of periodic ownership
(1) Periodic ownership arises pursuant to the juridical act.
(2) The periodic nature of property held by several co-owners must be expressly provided for by indicating the determined time interval that is attributed to the acquirer based on the acquired share. The time interval will be expressed by reference to the first and last day and month of exclusive use.
Article 577. Validity of acts concluded by the co-owner
(1) With regard to the share-share corresponding to the time interval to which he is entitled or to a part thereof, any co-owner may conclude, under the conditions of the law, acts of conservation, administration and disposition. The other co-owners do not hold any right of pre-emption under the law.
(2) The acts of administration or disposition which have as their object the share of the ownership right relating to a time interval belonging to another co-owner are ineffective in the part in which they constitute or transmit rights regarding that share. The provisions of art. 550 para. (5)-(6) and 551 shall apply accordingly.
Article 578. Rights and obligations of co-owners
(1) Each co-owner is obliged to carry out all conservation acts in such a way as not to prevent or hinder the exercise of the rights of the other co-owners. For major repairs, the co-owner who advances the necessary expenses is entitled to compensation in proportion to the value of the rights of the other co-owners.
(2) Acts that consume the substance of the property in whole or in part may be performed only with the consent of the other co-owners.
(3) Upon termination of the interval, the co-owner is obliged to hand over the property to the co-owner entitled to use it during the next interval.
(4) Co-owners may conclude an administration contract, the provisions regarding joint ownership in shares applying accordingly. The clause in the administration contract of the real estate which provides that the acquirer of a share shall accede to the administration contract by right in place of the person who alienated the respective share shall take effect only from the moment this contract has been recorded in the real estate register.
Article 579. Obligation to compensate and exclusion
(1) Failure to comply with the obligations provided for in this chapter shall entail the payment of compensation.
(2) If one of the co-owners seriously disrupts the exercise of periodic ownership, he may be excluded, by court decision, at the request of the injured co-owner.
(3) Exclusion may only be ordered if one of the other co-owners or a third party purchases the share of the excluded one.
Article 580. Termination of periodic ownership
(1) Periodic ownership shall cease upon the destruction of the common property, on the basis of the acquisition by a single person of all shares in the periodic ownership right, as well as in other cases provided for by law.
(2) The co-owner does not have the right to demand the division of the property held under the title of periodic ownership unless the co-owners have agreed otherwise by contract. The co-owner’s right to demand the division of the real estate becomes enforceable by noting it in the real estate register.
Chapter V
PROPERTY RIGHTS DEFENSE
Article 581. Action for claim
(1) The owner of an property has the right to have his ownership right recognized and to obtain or recover possession of it from any person who actually owns it, except in the case where that person has a right to possess the property, within the meaning of art. 484 paragraph (3), opposable to the owner.
(2) The claim action shall be filed against the person who exercises actual possession of the property on the date of filing.
(3) If the ownership right or another right to possess of the person against whom the claim action was filed is registered in a constitutive publicity register, the claim action cannot be admitted unless it has been ordered to make a rectification or other modification in that register, in accordance with the law, in favor of the person who filed the claim action.
(4) However, if the court decision ordering the rectification or other modification is not enforceable, according to the law, against the holder of a right registered in the advertising register with a constitutive character, then the court decision admitting the claim action is not enforceable against him either.
Article 582. Exclusion of claim
The claim action is rejected if, under the conditions established by law, through the effect of acquisition in good faith, usucaption, accession, application of the provisions regarding the regime of found property or other grounds provided for by law, the owner has lost the right of ownership, and the possessor or his predecessor has acquired it.
Article 583. Claiming property after acquisition
on the basis of the juridical act struck by nullity
absolute or relative or ineffective
(1) If the property was acquired on the basis of a juridical act struck by absolute or relative nullity or of a juridical act ineffective in terms of the acquirer’s entitlement, the owner may exercise the action for claim subject to the provisions of Articles 581 and 582.
(2) If, according to the law, the owner who has claimed has an obligation to return the price or rent received or another correlative obligation towards the acquirer, and this correlative obligation must be performed simultaneously, the acquirer, pursuant to art. 914, may suspend the performance of the obligation to return the property until the owner offers to perform or performs the correlative obligation incumbent on him.
Article 584. Competition with other actions
If there is a legal relationship between the owner and the possessor, the owner will recover his property under the terms of that legal relationship.
Article 585. Negative action
(1) If the owner’s right is disturbed in a way other than by usurpation or deprivation of possession, the owner shall have the right to request the court to defend him. He may also request compensation for the damage caused. Compensation may also be requested if the cessation of the violation is not requested or if the performance of this request is impossible.
(2) The court may order the defense of the owner, depending on the circumstances, by prohibiting imminent disturbance, prohibiting current disturbance, as well as removing the consequences of past disturbance.
(3) The provisions of paragraphs (1) and (2) shall not apply if the owner must, by virtue of the law or the rights of other persons who are opposable to him, admit influence over the property.
Chapter VI
NEIGHBORHOOD LAW
Article 586. The obligation of mutual respect
Owners of neighboring land or other immovable property, in addition to observing the rights and obligations provided by law, must respect each other. Any land or other immovable property from which mutual influences can occur is considered neighboring.
Article 587. Admissible neighboring influence
(1) The owner of land or other immovable property may not prohibit the influence exerted on his property by gas, steam, odor, soot, smoke, noise, heat, vibration or other similar influence originating from the neighboring land if it does not prevent the owner from using the property or if it insignificantly violates his right.
(2) The provisions of paragraph (1) shall also apply if the influence is considerable but is caused by the usual use of another land and cannot be eliminated by economically justified measures. If he is obliged to bear such influence and if it exceeds the recognized usual use in the respective locality and the admissible economic limits, the owner may demand appropriate compensation in monetary form from the owner of the land causing the influence.
Article 588. Inadmissible attack
(1) The owner may request the prohibition of the erection or exploitation of constructions or installations about which it can be stated with certainty that their presence and use inadmissibly encroach on his land.
(2) If the construction or installation was erected respecting the distance from the boundary established by law, its demolition or prohibition of exploitation may be requested only if the inadmissible damage has clearly occurred.
Article 589. Request for removal of danger
of collapse
If there is a danger of the collapse of the construction on the neighboring land onto his land, the owner may ask the neighbor to take the necessary measures to prevent this danger.
Article 590. Use of waters
(1) Watercourses and groundwater from several plots of land may not be diverted or manipulated by the owner of any plot of land in such a way that the quantity or quality of the water is modified to the disadvantage of the owner of another plot of land.
(2) The owner of the lower land may not in any way impede the natural flow of water coming from the upper land.
(3) If the flow of water from the upper land causes damage to the lower land, the owner of the latter may request the court’s authorization to carry out on his land the works necessary to change the direction of the waters, bearing all related expenses. In turn, the owner of the upper land is obliged not to carry out any work that may worsen the situation of the lower land.
Article 591. Special rules for water use
(1) The owner of the lower land cannot prevent the flow caused by the owner of the upper land or by other persons, as is the case of waters gushing out on the latter land due to underground works undertaken by the owner of the upper land, the case of waters originating from the draining of marshy lands, of waters used for a domestic, agricultural or industrial purpose, but only if this flow precedes the discharge into a watercourse or into a ditch.
(2) In the case provided for in paragraph (1), the owner of the upper land is obliged to choose the path and means of drainage that would cause minimal damage to the lower land, remaining obliged to pay fair and prior compensation to the owner of the latter.
(3) The provisions of paragraphs (1) and (2) do not apply when there is a construction on the lower land, together with the garden and the associated yard, or a cemetery.
Article 592. Water abstraction
(1) The owner who wants to use the natural and artificial waters that he can effectively dispose of for the irrigation of his land has the right, at his exclusive expense, to carry out useful water capture works on the opposite riparian land.
(2) The provisions of art. 591 paragraphs (2) and (3) shall apply accordingly.
Article 593. Surplus water
(1) The owner who has excess water for current needs is obliged, in exchange for fair and prior compensation, to offer this surplus to the owner who cannot procure the water necessary for his land except at excessive expense.
(2) The owner may not be exempted from the obligation referred to in paragraph (1) by claiming that he could use the surplus water for a purpose other than meeting current needs. However, he may claim additional compensation from the owner in need, provided that he proves the real existence of the claimed purpose.
Article 594. Preservation of acquired rights
of the owner of the lower land
(1) The owner may grant any use to the spring on his land provided that it does not prejudice the rights acquired by the owner of the lower land.
(2) The owner of the land on which the spring is located cannot change its course if this change would deprive the inhabitants of a locality of water for their current needs.
Article 595. Eaves drop
The roof must be constructed so that water, snow or ice falls exclusively on the owner’s territory.
Article 596. Fallen fruits
Fruits fallen from trees or shrubs on neighboring land belong to the owner of that neighboring land.
Article 597. Roots and branches on the land
neighbor
(1) The owner of the land may cut and stop the roots of trees and shrubs that have penetrated his land from the neighboring land. The same rule applies to the branches of trees and shrubs that hang from the neighboring land.
(2) The right provided for in paragraph (1) shall not be granted to the owner if the roots and branches do not prevent the use of his land.
Article 598. Distance for constructions, works
and plantations
(1) Any construction, work or plantation may be carried out by the land owner only in compliance with a minimum distance of 60 cm from the boundary line, unless otherwise provided by law or urban planning regulations, so as not to infringe on the rights of the neighboring owner.
(2) Trees, except those smaller than two meters, plantations and hedges, must be planted at the distance stipulated by law, urban planning regulations or local custom, but which shall not be less than 2 meters from the boundary line.
(3) In case of non-compliance with the distance provided for in paragraphs (1) and (2), the neighboring owner is entitled to request the demolition of the construction or the removal or cutting to the appropriate height of the trees, plantations or fences at the expense of the owner of the land on which they are erected.
Article 599. Exceeding the boundary of the neighboring land
in the case of construction
(1) If the owner of a plot of land, when erecting a building, has built beyond the boundary of his plot, without premeditation or serious negligence being imputed to him, the neighbor must tolerate the violation of the boundary if he did not object before or immediately after the boundary was exceeded.
(2) The neighbor harmed by the situation provided for in paragraph (1) must be compensated with a cash annuity, paid annually, in advance.
(3) The person entitled to the rent may at any time demand that his debtor pay him the price of the portion of land on which he built in exchange for the transfer of ownership over it.
Article 600. Access to another person’s land
(1) Any owner is obliged, after receiving a written or verbal notice, to allow the neighbor access to his territory, as the case may be, for the performance and maintenance of a construction, plantation and the performance of other works on the neighboring land.
(2) The owner who is obliged to allow access to his territory has the right to compensation for the damage caused solely by this fact and to the restoration of the land to its previous condition.
(3) If, due to a natural force or force majeure, an property has entered or been transported onto someone else’s land, the owner of the land must allow the property to be searched and seized, unless he himself has undertaken the search or has not returned it. The property shall continue to belong to its owner, unless he renounces it. The owner of the land may demand the seizure of the property and the restoration of the land to its previous condition.
(4) The land owner who carries out and maintains constructions, plantations or performs other works on his territory does not have the right to endanger the neighboring land or to compromise the durability of the constructions, works or plantations located on it.
Article 601. Passage through foreign ownership
(1) If the land is devoid of communication through any common access road, water supply pipes, electricity, gas, telecommunications pipes and the like, the owner may ask the neighbors to allow him to use their land for the installation of the necessary communication.
(2) The transfer shall be made under conditions that will cause minimal interference with the exercise of the right of ownership over the land. The neighbor whose land is used for access must be paid fair and prior compensation, which, by agreement of the parties, may be made in the form of a single payment.
(3) The compensation due according to paragraph (2) shall be doubled when the lack of access is a consequence of the act of the owner claiming passage.
Article 602. Installation of the border demarcation line
(1) The landowner may request the neighboring landowner to take part in the installation of a stable demarcation boundary or in the restoration of a damaged boundary.
(2) The expenses for demarcation shall be divided equally between the neighbors unless the existing relations between them indicate otherwise.
Article 603. Disputes regarding the border
(1) If, as a result of a dispute, it is impossible to determine the true boundary, then the actual possession of the neighbors shall be decisive for the demarcation. If actual possession cannot be determined, half of the disputed portion shall be annexed to each plot of land.
(2) If the determination of the boundary in accordance with the provisions of paragraph (1) leads to a result that contradicts the established facts, in particular it affects the established size of the land, the boundary shall be established, at the request of a party, by the court.
Title IV
OTHER REAL RIGHTS
Chapter I
USUFRUCT
Article 604. The concept of usufruct
(1) Usufruct is the right of a person (the usufructuary) to possess and use for a definite or determinable period the property of another person (the bare owner) and to reap the fruits of the property, just like the owner, but with the duty to preserve its substance. The usufructuary has the right to possess the property, but not to alienate it.
(2) Usufruct may be limited by excluding certain uses.
(3) Usufruct may be established, jointly or successively, in favor of one or more persons existing on the date of opening the usufruct.
Article 605. Establishment of usufruct
(1) Usufruct may be established by law or juridical act. In cases provided for by law, usufruct may be established by court decision.
(2) The same rules apply to the establishment of usufruct as to the alienation of the property that are the subject of usufruct.
(3) The object of usufruct may be any non-consumable good that is in civil circulation, movable or immovable, corporeal or incorporeal, including a patrimonial mass, a de facto universality or a part thereof.
(4) Usufruct extends to all accessories of the property given in usufruct, as well as to everything that is united or incorporated into it.
Article 606. Term of usufruct
(1) Usufruct shall be established at most until the death of the natural person or the liquidation of the legal person for whose benefit the usufruct was established, unless a shorter term is established by law or by juridical act.
(2) The usufruct established in favor of a legal person may not exceed 30 years.
(3) Any juridical act by which a perpetual and transmissible usufruct is established due to the death or liquidation of the usufructuary is struck by absolute nullity.
Article 607. Confessory action of the usufructuary
(1) The usufructuary may bring an action against any person who prevents the exercise of the right of usufruct, even against the bare owner. The legal provisions regarding the defense of the right of ownership shall apply accordingly to the action of the usufructuary.
(2) The right to a confessional action is not subject to prescription.
Article 608. Assignment of usufruct
(1) In the absence of a contrary provision, the usufructuary may not assign his right to another person without the consent of the bare owner.
(2) The usufructuary remains solely liable to the bare owner only for obligations arising before the assignment. Until the notification of the assignment, the usufructuary and the assignee are jointly and severally liable for the fulfillment of all obligations towards the bare owner.
(3) After the notification of the assignment, the assignee is liable to the bare owner for all obligations arising after the notification of the assignment. In this case, the legal provisions on suretyship shall apply accordingly to the usufructuary.
(4) After the assignment, the right of usufruct continues, as the case may be, until the completion of the initial term or until the death of the initial usufructuary.
Article 609. Lease of property encumbered by usufruct
(1) The usufructuary may rent or lease to another, in whole or in part, the movable property that is the object of the usufruct unless, at the time of the establishment of the usufruct, it was established otherwise.
(2) If at the time of the establishment of the usufruct the real estate was not rented or leased, the usufructuary does not have the right to rent or lease it without the consent of the bare owner or without the authorization of the court if this right was not expressly granted to him at the time of the establishment of the usufruct.
(3) Upon termination of the usufruct, the bare owner is obliged to maintain the lease or rental contracts concluded in the established manner. He may, however, refuse to maintain them if:
a) the term of the lease or rental contract exceeds, without his consent, the usual term in accordance with local customs;
b) the commercial space was rented for a term longer than 5 years;
c) the agricultural enterprise was leased for a term longer than 12 years;
d) an agricultural land was leased for a term longer than 6 years;
e) the lease or rental contract stipulates unusual, excessive conditions for the naked owner.
(4) The bare owner loses the right to refuse to maintain the contract when the tenant or lessee has set a reasonable term within which the bare owner should declare the maintenance or refusal to maintain, and he has failed to do so within the established term.
Article 610. Determining the condition of the property
(1) The usufructuary takes over the goods in the condition in which they are.
(2) When establishing the usufruct over a universality of goods, the usufructuary and the bare owner are obliged to provide mutual assistance in drawing up the inventory.
(3) The inventory must contain the date of preparation, be signed by both parties, and at the request of one of the parties, the signature must be legalized.
(4) Each party has the right to request that the inventory be drawn up by the competent body.
(5) The party requesting the preparation of the inventory under the conditions of paragraph (4) or the legalization of the signature shall bear the related expenses.
Article 611. Price, charges and expenses of usufruct
(1) Usufruct is free of charge unless expressly stipulated as onerous.
(2) The expenses and burdens of the property shall be borne by the bare owner, with the exceptions provided for by law or contract.
(3) The usufructuary is held liable for payment obligations (taxes, duties) to the state for the object of the usufruct.
Article 612. Rights of the usufructuary over fruits
(1) The usufructuary enjoys all the fruits produced by the object of usufruct unless otherwise stipulated. The fruits of the object of usufruct pass into the ownership of the usufructuary on the date of their harvest.
(2) The fruits not harvested at the time of the opening of the right to usufruct belong to the usufructuary, and those not harvested at the end of the usufruct period belong to the bare owner unless the act by which the usufruct was established provides otherwise. The income is considered to be collected daily and is due to the usufructuary in proportion to the duration of his usufruct. These provisions are applicable to the lease, rent of real estate, dividends and interest obtained.
Article 613. The right to dispose of property
consumable
If the usufruct also includes consumable goods, the usufructuary has the right to dispose of them, but with the obligation to return goods of the same quality, quantity and value or, if impossible, to return their equivalent value from the date of termination of the usufruct.
Article 614. Usufruct of receivables
(1) Usufruct over a claim is enforceable against third parties under the same conditions as the assignment of the claim.
(2) If the usufruct affects a debt that becomes due during the usufruct, payment shall be made to the usufructuary, who shall issue a receipt.
(3) Upon termination of the usufruct, everything received as payment shall be transmitted to the bare owner.
Article 615. The right to vote
(1) The voting right granted by a share or other security, a fraction of co-ownership or other property belongs to the usufructuary.
(2) The voting right belongs to the bare owner if it results in a change in the substance of the main property, such as the share capital or the property held in co-ownership, a change in the destination of this property or the liquidation of the legal person.
(3) The distribution of the exercise of the voting right under conditions other than those provided for in paragraphs (1) and (2) is not enforceable against third parties, unless they have expressly been informed of it.
Article 616. Rights of creditors
(1) The creditors of the usufructuary may pursue his rights subject to the rights of the bare owner.
(2) The creditors of the bare owner may pursue his rights subject to the rights of the usufructuary.
Article 617. The usufructuary’s right to use
of trees
(1) The usufructuary shall not have the right to cut down the trees growing on the land encumbered with usufruct, except for the purpose of repairing, maintaining or exploiting the land. He may dispose of those that have fallen or dried up naturally.
(2) The usufructuary is obliged to replace, in accordance with local customs or the habits of the bare owner, the trees that have been destroyed.
Article 618. Usufructuary right over forests
intended for cutting
(1) If the usufruct includes forests intended by their owner for periodic cutting, the usufructuary is obliged to maintain the order and quantity of cutting, according to the rules established by law, by the bare owner or according to local customs, without the usufructuary being able to claim any compensation for the parts left uncut during the usufruct.
(2) Trees that are removed from the nursery without degrading it are not part of the usufruct except with the obligation of the usufructuary to comply with the legal provisions and local customs regarding their replacement.
(3) The usufructuary may, in accordance with the legal provisions and the usual usage of the bare owner, exploit the parts of tall forests that have been designated for regular felling, whether these fellings are made periodically over a determined area or only for a number of trees selected over the entire surface of the land. In other cases, the usufructuary may not cut down tall trees. However, he may use, for the repairs to which he is obliged, accidentally fallen trees, even cut down necessary trees, with the duty, however, to demonstrate, in the presence of the owner, this need.
Article 619. The right to quarries
(1) Under the terms of the law, the usufructuary uses the quarries that were in operation at the time the usufruct right was established in the same way as the bare owner.
(2) The usufructuary has no right over unopened quarries.
Article 620. Usury of the object of usufruct
If the usufruct applies to goods that, without being consumable, are subject to wear and tear, the usufructuary will use them as a good owner and according to their destination.
Article 621. Obligation to inform
(1) If the property is damaged, destroyed or if repair or improvement works or measures to prevent dangers are necessary, the usufructuary is obliged to immediately inform the bare owner.
(2) The usufructuary is obliged to immediately report to the bare owner any usurpation of the land and any challenge to the property right, under penalty of being obliged to pay compensation.
Article 622. Obligation to maintain the destination
PROPERTY
The usufructuary is obliged, in exercising his right, to respect the destination given to the property by the bare owner.
Article 623. Obligation to make repairs
(1) The usufructuary is obliged to carry out maintenance repairs to the property.
(2) If the usufructuary incurs expenses in relation to the property that he was not obliged to incur, the obligation of the bare owner to reimburse them shall be determined according to the rules regarding business management.
(3) Major repairs are the responsibility of the bare owner, without the owner being obliged to make them.
(4) Major repairs are those that involve a significant part of the property and involve an exceptional expense, such as those related to the consolidation or rehabilitation of constructions regarding the load-bearing structure, interior and/or exterior walls, the roof, the electrical, thermal or sanitary installations related to them, the replacement or repair of the engine or body of a car or of an electronic system as a whole.
(5) Major repairs are the responsibility of the usufructuary when they are due to failure to carry out maintenance repairs.
(6) The usufructuary is obliged to notify the bare owner of the need for major repairs.
(7) When the bare owner does not carry out major repairs on time, the usufructuary may carry them out at his own expense, the bare owner being obliged to return their value upon termination of the usufruct.
Article 624. Exclusion of the obligation to rebuild
The usufructuary and the bare owner are not obliged to rebuild what has been destroyed due to age or an event beyond their control.
Article 625. Payment of insurance premiums
If the property is insured, during the term of the usufruct, the insurance premiums are paid by the usufructuary.
Article 626. Modification or termination of the right
strike
The right encumbered with usufruct may be modified or extinguished by juridical act only with the consent of the usufructuary.
Article 627. Right of disposal and exercise
of defense actions
Subject to the right of usufruct, the bare owner is entitled to alienate the property, encumber it with encumbrances and exercise all actions to defend the right of ownership.
Article 628. Obligation of the bare owner to guarantee
usufructuary rights
The bare owner is obliged to refrain from any juridical act and deed that would prevent or disturb the usufructuary in the free and full exercise of his right, to guarantee the usufructuary against eviction, to compensate the usufructuary if, through his deed, he has decreased the value of the usufruct.
Article 629. Payment of debts related to the patrimony
encumbered with usufruct
(1) If the universal or universal usufructuary pays the debts related to the patrimonial estate or the part of the estate encumbered with usufruct, the bare owner must return, upon the termination of the usufruct, the amounts advanced without any interest.
(2) If the usufructuary fails to pay the debts provided for in paragraph (1), the bare owner may, at his option, pay them or sell a sufficient part of the goods given in usufruct. If the bare owner pays these debts, the usufructuary shall owe interest for the entire duration of the usufruct.
(3) If the payment of debts is not made in the manner provided for in paragraphs (1) and (2), the creditors may pursue the property given in usufruct.
Article 630. Discovery of a treasure
The usufructuary’s right does not extend to the rights of the bare owner regarding the treasure discovered in the property.
Article 631. Extinction of usufruct
(1) Usufruct shall be extinguished upon the expiration of the term for which it is established, by the merging of the qualities of owner and usufructuary in the same person, by the usufructuary renouncing his right, by the death or, as the case may be, by the liquidation of the usufructuary.
(2) Usufruct also ceases if the property title of the person who established the usufruct is terminated or when the contract by which the usufruct was established is terminated.
Article 632. Extinction of usufruct upon request
the owner’s nude
The usufruct may cease at the request of the bare owner when the usufructuary abuses the use of the property, damages it or allows it to deteriorate by not carrying out the repairs to which he is obliged.
Article 633. Extinction of usufruct in the case of
destruction of property
(1) Usufruct shall terminate if the property has been entirely destroyed in an event beyond the control of the usufructuary. If the property is partially destroyed, the usufruct shall continue on the remaining part.
(2) The usufruct shall continue on the insurance indemnity if it is not used for the repair of the property.
Article 634. Effect of the termination of usufruct
(1) Upon termination of the usufruct, the usufructuary is obliged to return to the bare owner, in the condition in which they are, the goods he holds by virtue of his right of usufruct.
(2) In the event of destruction or damage to the property due to the fault of the usufructuary, the usufructuary is obliged to compensate the owner.
(3) If the usufruct is registered in an advertising register, the extinguished usufruct must be deleted.
Chapter II
RIGHT OF USE AND RIGHT OF HOUSING
Article 635. General provisions regarding the law
of use and the right of habitation
(1) Usufruct is the real right over the property of another, by virtue of which the usufructuary may possess and use the property and gather its fruits necessary for his own needs and those of his family.
(2) The holder of the right of habitation has the right to live in another person’s dwelling together with his spouse and children even if he was not married or had no children at the date on which the dwelling was established, as well as together with his parents or other dependents.
(3) Use and habitation are established on the basis of a juridical act or the law.
(4) The act establishing the usufruct may limit or extend the right of use. The usufructuary may not claim more fruits than those due for his own needs and those of his family, unless the act provides otherwise.
Article 636. Exercise of the right of use and the right
of habitation
(1) The right of use and habitation cannot be transferred, and the property that is the subject of these rights cannot be rented or leased.
(2) The usufructuary and the holder of the right of habitation bear the costs of cultivation or maintenance in proportion to the part they use.
Article 637. Right to use common facilities
The usufructuary or the holder of the right of habitation whose right only extends to a part of the property has the right to use the facilities intended for common use.
Article 638. Application of provisions regarding usufruct
The provisions regarding usufruct shall apply in a manner appropriate to the use and habitation.
Chapter III
servitude
Article 639. General provisions regarding servitude
(1) Easement is the burden that encumbers a property (the servient property) for the use or utility of the property of another owner (the dominant property). The utility may consist in increasing the comfort of the dominant property or may result from its economic destination.
(2) The obligation to do something may be attached to an easement and imposed on the owner of the encumbered property. This obligation is accessory to the easement and may only be stipulated in favor of or for the exploitation of the property.
(3) The provisions of this chapter shall apply accordingly when the easement encumbers a property other than land.
Article 640. Conditions of servitude
(1) When establishing the easement, the authorized person must respect the interests of the owner of the encumbered property.
(2) The parties may provide for the obligation of the owner of the dominant property to pay, at certain periods, a reward (compensation) to the owner of the servient property.
(3) The change of the owner of the dominant real estate or the encumbered real estate, as well as the division of the real estate, does not affect the right of servitude.
(4) The easement may be established in order to ensure future utility of the dominant property.
(5) The easement established on a construction to be built or on a real estate to be acquired arises only on the date of construction or acquisition.
(6) A real estate encumbered with usufruct or superficies may be encumbered with an easement only with the consent of the usufructuary or superficies.
Article 641. Classification of easements
(1) Apparent are servitudes that are known by external signs, and non-apparent – those that are not attested by such signs.
(2) Continuous are servitudes whose exercise is or can be continuous without requiring human action, and non-continuous – those for whose existence human action is necessary.
(3) Positive easements are those that entitle the owner of the dominant property to directly perform certain acts of use on the servient property, and negative easements are those that impose certain restrictions on the owner of the servient property in the exercise of his property right.
Article 642. Establishment of easement
(1) The easement may be established by the destination established by the owner, by juridical acts or by usucapion.
(2) The contract establishing the easement shall be concluded in authentic form.
(3) The easement is established by its registration in the real estate register.
Article 643. Establishment of easement by destination
established by the owner
The easement by destination established by the owner is established by a document of the property owner which, in view of a possible subdivision, immediately establishes the nature, purpose and situation of the easement of a part of the property in favor of other parts.
Article 644. Acquisition of easements by usucaption
(1) Any easement may be acquired through usucaption as provided for in art. 524.
(2) Only positive servitude may be acquired through usucaption provided for in art. 526, which shall be applied accordingly.
Article 645. Exercise of servitude
(1) The burden imposed by the easement on the servient real estate consists of the owner’s obligation to allow certain actions to be performed on his real estate, above it or underground. The easement may also consist of the owner’s obligation to refrain from certain actions in favor of the owner of the dominant real estate.
(2) The easement extends to everything necessary for its exercise.
(3) If the easement was exercised voluntarily and without objections for at least 3 years, then, in the event of disputes between owners, this manner of exercise may serve as a determining basis for resolving the dispute.
(4) The owner of the servient real estate is obliged to refrain from any act that limits or prevents the exercise of the servitude. Thus, he will not be able to change the condition of the premises or move the exercise of the servitude to another place.
(5) The owner of the servient real estate may indicate, for the exercise of the right of servitude, another part of the real estate than the one indicated in paragraph (3), but only if such transfer does not prejudice the owner of the dominant real estate. The expenses related to the transfer shall be borne by the owner of the servient real estate.
(6) The right of servitude of the owner of the dominant property must be exercised in such a way as to create as few difficulties as possible for the owner of the encumbered property.
Article 646. Abandonment of the encumbered property
In all cases where, according to the contract, the expenses of the works for exercising and preserving the easements fall on the owner of the encumbered property, he may be exempted from the obligation by abandoning in favor of the owner of the dominant property the part of the encumbered property necessary for exercising the easement.
Article 647. Rights of the owner of the dominant real estate
(1) The owner of the dominant property is entitled to use the easement, to carry out on the servient property any work necessary for the exercise of the right of easement, to preserve the right of easement unless the contract provides otherwise.
(2) In the absence of a contrary provision, the owner of the dominant property may take all measures and may carry out, at his own expense, all works for the exercise and preservation of the easement. The expenses for carrying out these works shall be borne by the two owners, in proportion to the advantages they obtain, to the extent that the works carried out for the exercise of the easement are necessary and also benefit the servient property.
(3) The owner of the dominant property may remove all the constructions and plantations that he has placed on the servient property, in case of the need to restore it to a normal state for exploitation, and must do so at the request of the owner of the servient property.
Article 648. Obligations of the owner of the dominant property
(1) The owner of the dominant property is obliged to maintain the buildings and plantations located on the servient property to the extent that this ensures the interests of the servient property.
(2) The owner of the dominant property is obliged to repair the damage caused to the owner of the servient property.
(3) If the right of servitude is established in favor of two or more owners of dominant real estate, the obligation to maintain the buildings and plantations located on the servient real estate and to repair the damages caused to the owner of the servient real estate belongs proportionally to the benefit of each owner of the dominant real estate unless the law or the act by which the servitude was established provides otherwise.
Article 649. Rights over buildings and plantations
The owner of the encumbered property has no right over the buildings and plantations placed on his property by the owner of the dominant property.
Article 650. Competition of several rights
If the easement of a property competes with another easement or with another real right to use the property, so that these rights cannot be exercised simultaneously, totally or partially, having the same priority rank, each entitled person may request the establishment of an order of exercise that would equitably correspond to the good of all interested persons.
Article 651. Grounds for termination of servitude
(1) The easement shall be terminated in the event of:
a) consolidation, when both properties end up having the same owner;
b) renunciation of the owner of the dominant property;
c) expiration of the term or termination of the contract by which the easement was established;
d) redemption;
e) definitive impossibility of exercise;
f) unused for a period of 10 years;
g) disappearance of any usefulness of them;
h) expropriation of the encumbered property if the easement is contrary to the public utility to which it will be put
the expropriated property be affected.
(2) The extinguished easement shall be removed from the real estate register.
Article 652. Calculation of the period of non-use
(1) The term provided for in art. 651 letter f) begins to run from the date of the last act of exercise of non-continuous easements or from the date of an act contrary to continuous easements.
(2) The exercise of the easement by a co-owner or by a usufructuary or superficiary interrupts the term with respect to the other co-owners or, as the case may be, with respect to the bare owner.
Article 653. Redemption of the easement of passage
(1) The easement of passage may be redeemed by the owner of the servient real estate if there is a clear disproportion between the utility it provides to the dominant real estate and the inconvenience or depreciation caused to the servient real estate.
(2) In case of disagreement between the parties, the court may issue a decision that takes the place of a contract for the redemption of the easement. When establishing the redemption price, the court shall take into account the age of the easement and the change in the value of the two properties.
Chapter IV
superficie
Article 654. The concept of surface area
(1) Superficie is the real right to possess and use the land of another for the purpose of constructing and operating a superficiary’s construction, above and below this land, or operating an existing superficiary’s construction. This right is alienable, is transmitted by succession and may be the subject of a lease agreement.
(2) Unless otherwise provided, the right of superficies may only be exercised over the constructed area or over the area on which the construction is to be erected, as well as over the unconstructed area necessary, according to the nature or destination of the construction, for its normal exploitation.
(3) The extent of the right of the superficiary to use the encumbered land shall be established by contract or law. In the absence of contractual provisions, the land shall be encumbered with the servitude necessary for the exercise of the superficiary right. The servitude shall cease upon the termination of the superficiary right.
(4) The rules of property rights over real estate shall apply accordingly to the right of superficies, unless the law provides otherwise.
(5) The construction is an essential component of the right of superficies. The right of ownership over the construction erected on the land encumbered by the superficies is exercised by the superficiary for the duration of the existence of the superficies. If the construction has been registered in the real estate register, the superficiary will be shown as the owner of the construction for the duration of the existence of the superficies.
(6) The right of superficies cannot be established under a resolutory condition.
(7) The right of superficies cannot be limited to a part of the construction.
Article 655. Establishment of the right of superficies
(1) The right of superficies arises on the basis of a juridical act or a legal provision, being opposable to third parties from the moment of registration in the real estate register.
(2) The superficies right is established for a term of 99 years unless another term has been established. Upon the expiration of the term, the superficies right may be renewed.
(3) The surface area may also be registered on the basis of a juridical act by which the owner of the entire building exclusively transferred the construction or transferred the land and the construction, separately, to two persons, even if the establishment of the surface area was not expressly stipulated.
(4) In the case of construction on someone else’s land, the superficies may be registered based on the landowner’s waiver of the right to invoke accession in favor of the builder. It may also be registered in favor of a third party based on the assignment of the right to invoke accession.
Article 656. Right of superficies in case of demolition
or the destruction of the building
The right of superficies is not extinguished by the demolition or destruction of the construction.
Article 657. Surface rank
The superficies right is registered in the real estate register only with the first rank.
The rank cannot be changed.
Article 658. Exercise of the right of superficies
(1) The superficiary may freely dispose of his superficiary right. In the case of an existing construction, the superficiary may alienate or mortgage the superficiary and the construction only together.
(2) In case of sale of the construction by the superficiary, the land owner has the right of pre-emption.
Article 659. Obligation of the superficiary to pay
a royalty
(1) Unless the juridical act provides otherwise, the superficiary owes the landowner, in the form of monthly installments, an amount equal to the rent established on the market, taking into account the nature of the land, the area in which it is located, the purpose of the construction, as well as any other criteria for determining the value of the use. The royalty is determined on the date of the superficiary’s establishment.
(2) The royalty may be adjusted at the request of one of the parties, if economic conditions make non-adjustment unfair. The extent of the adjustment shall be assessed taking into account the change in economic conditions and the principle of equity.
Article 660. Extinction of the right of superficies
The right of superficies is extinguished:
a) upon expiry of the term or if the contract by which the superficies were established has been terminated;
b) by consolidation, if the land and the building become the property of the same person;
c) by the destruction of the construction, if there is an express stipulation in this regard;
d) in other cases provided for by law.
Article 661. Extinction of the right of superficies upon request
the landowner
If the superficiary has not erected the construction within the term specified in the juridical act regarding the establishment of the superficies or if he violates the obligation regarding the preservation of the construction, the land owner has the right to request the termination of the superficies right.
Article 662. Effects of the extinction of the right of superficies
(1) In the case provided for in art. 660 letter a), the construction that was the subject of the superficies right, from the date of the superficies termination, becomes by law a component part of the land according to art. 460, belonging to the owner of the land, and the superficies right over the land and the construction is extinguished. The owner of the land is obliged to pay compensation equal to its market value from the date of expiry of the term. The superficies has no right, upon the termination of the superficies right, to demolish the construction or parts of it. The superficies is obliged to hand over to the owner of the land the documents relating to the erection of the construction.
(2) When the construction does not exist at the time of the establishment of the superficies right, and its value is equal to or greater than that of the land, the owner of the land may request the superficies to be obliged to purchase the land at the market value that it would have had if the construction had not existed. The superficies may refuse to purchase the land if he removes, at his own expense, the construction built on the land and restores the land to its previous condition.
(3) In the absence of a contrary agreement concluded with the landowner, the limited real rights consented to by the superficiary shall extinguish upon the termination of the superficiary right. The mortgages encumbering the superficiary right shall be transferred by operation of law to the compensation received from the landowner in the case provided for in paragraph (1), shall be extended by operation of law to the land in the case provided for in paragraph (2) first sentence or shall be transferred by operation of law to the materials in the case provided for in paragraph (2) second sentence.
(4) Mortgages established on land during the existence of the superficies do not extend to the building upon the termination of the superficies right in the case provided for in paragraph (1). They are transferred by right to the amount of money received by the owner of the land in the case provided for in paragraph (2) first sentence or extend by right to the entire land in the case provided for in paragraph (2) second sentence.
Article 663. Guarantee for compensation
(1) The landowner has the right to retain the construction until the compensation is paid.
(2) The claim for compensation is secured with land instead of surface area and with its rank.
Article 664. Effects of termination of superficies by consolidation
(1) If the right of superficies has been extinguished by consolidation, in the absence of a contrary stipulation, the limited real rights established over the rights of the superficiary shall be maintained for the duration for which they were established, but no later than the expiration of the initial term of the superficies.
(2) Mortgages arising during the existence of the superficies shall each be maintained depending on the object on which they were established.
Article 665. Effects of termination of superficies by
the destruction of the building
(1) In the event of the extinction of the superficies right through the destruction of the construction, the real rights encumbering the superficies right shall be extinguished, unless the law provides otherwise.
(2) Mortgages arising on bare ownership of the land during the existence of the superficies right shall be maintained on the reinstated ownership right.
Article 666. Subrogation in ongoing contracts
Upon the termination of the superficies right, the land owner is subrogated to the superficies in the lease and rental contracts in progress.
Chapter V
PLEDGE
Section 1
General provisions
Article 667. The concept of pledge
(1) Pledge is the real right on the basis of which the holder (pledgee) may claim, from the value of the pledged object, the satisfaction of his secured claims with preference over the other creditors of the holder of the pledged object (pledgor).
(2) The validity of the pledge depends on the validity of the obligation secured by the pledge.
(3) The pledge is established in order to guarantee the performance of the obligation and represents an accessory legal relationship to the guaranteed obligation, being conditioned in time by its duration, unless the law or the pledge contract provides otherwise.
Article 668. Pledgor
(1) A pledgor is any natural or legal person who is the owner, another possessor or legal usufructuary of the pledged property and who has the right to dispose of these property.
(2) Both the debtor of the secured obligation and a third party (called the pledgee or, as the case may be, the mortgage guarantor) may be a pledgor.
(3) Jointly owned property may be pledged only with the consent of all co-owners, each of the co-owners becoming a co-debtor pledgor in this case.
(4) Commercial companies and enterprises pledge their property in accordance with their founding documents.
(5) The share of the common property on shares may be pledged without the consent of the other co-owners unless the contract between the co-owners provides otherwise. In the case of real estate, the mention of the need for such an agreement shall be noted in the real estate register.
(6) The person who has a right over the property affected by modalities or susceptible to nullity may only constitute a pledge affected by the same modalities or conditions of nullity.
(7) If the right to dispose of an property requires the consent (approval, authorization, etc.) of a third party, this consent is also necessary for the establishment of a pledge over the respective property.
(8) Property owned by individuals in respect of whom a judicial protection measure has been established or owned by minors may be pledged in compliance with the necessary conditions for alienation, unless otherwise provided by law.
Article 669. Pledgee (mortgage guarantor)
(1) The debtor and the pledgee, in his capacity as a pledgee, may agree on the conditions for securing the performance of the debtor’s obligations by the pledgee, as well as on the debtor’s obligations towards the pledgee in the event of the pledgee exercising the right of pledge. The absence of such a written agreement between the debtor and the pledgee shall not affect the validity of the pledge.
(2) The pledgee may not oppose his claims against the debtor to the satisfaction of the claims of the pledgee from the pledged property.
(3) If the claims of the pledgee are satisfied by the pledgee, including from the account of the pledged property, the legal provisions on subrogation shall apply. After the pledgee has performed the obligation of the debtor, the former has the right to request, under the terms of the law, from the pledgee proof of the performance of the obligation.
Article 670. Pledgee (mortgage lender)
The pledgee (mortgagee) is the person in whose favor the pledge was created.
Article 671. Types of pledge
(1) The pledge is established on a movable or immovable property or on a universality of movable property.
(2) The pledge of real estate is called a mortgage. The provisions concerning pledges shall apply accordingly to mortgages insofar as they do not contradict the special provisions concerning mortgages.
(3) The pledge of movable property takes place with or without dispossession of it.
(4) The pledge of movable property with dispossession is called a pawn.
Article 672. Indivisibility of pledge
(1) The pledge is indivisible even if the pledged property or obligation is divisible.
(2) The pledge is indivisible and subsists in full on all the encumbered property, on each of them and on all their parts even if the property or obligation is divisible.
Section 2
Occurrence, registration and extinction of the pledge
Article 673. Grounds and time of occurrence of the pledge
(1) The pledge appears only under the conditions and in the forms established by this code.
(2) The pledge is conventional or legal.
(3) The mortgage arises at the time of registration. The pledge of movable property without dispossession arises at the time of registration or, in the case of a pledge over the right to funds in bank accounts, by inspection, in accordance with art. 699 para. (2). The legal provisions relating to the pledge over the right to funds in bank accounts shall apply accordingly to the pledge over the right to funds in accounts opened with payment service providers other than a bank. In this case, references to the bank shall be read as references to the respective payment service provider.
(4) The expenses related to the registration of the pledge, as well as those related to the amendment of the pledge agreement and the registration of such amendments, shall be borne by the pledgor, except in cases where the pledge agreement provides otherwise.
(5) The pledge arises at the moment of acquiring possession of the property.
Article 674. Registration of pledge without dispossession
(1) The mortgage shall be registered in the real estate register. If the amendment of the mortgage contract leads to the modification of the data registered in the real estate register, the respective modifications shall be registered in accordance with the procedure established for the registration of the mortgage.
(2) The pledge of movable property without dispossession, with the exception of the pledge constituted by control in accordance with the provisions of art. 699 paragraph (2), shall be registered in the register of movable real guarantees (the register of guarantees).
Article 675. Extinguishing the pledge
(1) The pledge shall be extinguished by the extinction of the obligation whose performance it guaranteed.
(2) The pledge shall be extinguished upon the cessation of possession.
(3) The pledge shall be extinguished following the destruction of the pledged property, its removal from the civil circuit, if these events occur on the property in its entirety.
(4) The pledge on the movable property incorporated into an immovable property subsists as a mortgage under the condition of registration in the immovable property register even if the movable property has changed its nature.
This pledge has a priority rank established according to the previous registration.
(5) The pledge shall also be extinguished in the event of:
a) the written agreement of the pledgee to cancel the pledge;
b) the expiration of the term for which the pledge was established;
c) sale within the exercise of the right of pledge;
d) other situations provided for by law.
(6) The application for cancellation of the registered pledge or mortgage shall be filed with the appropriate registry by the pledgee or by any interested person, with the written consent of the pledgee. The cases in which the consent of the pledgee is not required for cancellation of the pledge shall be established by law.
Section 3
The object and extent of the pledge
Article 676. General provisions regarding the subject matter
and the extent of the pledge
(1) The object of the pledge may be any tangible or intangible property, present or future, determined individually or generically, or a universality of property, with the exception of property removed from the civil circuit, inalienable or unseizable property. The object of the pledge may be any patrimonial right, including the right of claim of the pledgor against the pledgor.
(2) Universality of goods, within the meaning of paragraph (1), means a totality of movable goods, present or future, tangible or intangible, described in a general manner.
(3) The right of pledge also extends to the accessories of the pledged property unless the contract provides otherwise.
(4) The pledge extends to any property that is joined by accession to the pledged property, as well as to any other improvements made to it.
(5) Rights directly related to the person of the pledgor, nor rights whose assignment is prohibited by law, may not constitute the object of the pledge.
(6) Qualified holding of shares of banks in the Republic of Moldova may constitute the object of pledge only with the prior approval of the National Bank of Moldova.
(7) Property that cannot be separately alienated by law may not be pledged separately. A part of an indivisible property may not be pledged.
(8) The object of the pledge may be the right to funds in national currency and foreign currency:
a) located and which will enter bank accounts, through pledge without dispossession;
b) in the form of jubilee and commemorative coins, including those containing precious metals, by pledge with dispossession (pawn).
Article 677. Object of mortgage
(1) The object of the mortgage may be one or more present or future immovable property that can be individualized by separate cadastral numbers. The provisions on mortgage shall apply accordingly to the mortgage of limited real rights if the law does not prohibit their mortgage.
(2) The object of the mortgage is determined by the name of the property, its cadastral number, its location, as well as by a description sufficient for its identification.
(3) The contract may provide for the extension of the mortgage over immovable property that will be acquired or constructed in the future, in accordance with the law.
(4) The mortgaged immovable property remains the property of the mortgagee. The mortgage contract may provide for the use of the mortgaged property by the mortgagee.
(5) The risk of accidental loss or damage to the mortgaged object is borne by the mortgagee, unless the mortgage contract provides otherwise.
(6) The mortgage on the land extends to existing and future capital constructions, as well as to unfinished constructions located on it, except for those owned by third parties.
(7) The share of the common parts of the real estate, held under common ownership (land, roof, stairs, basement, etc.) related to an isolated room, is mortgaged together with the respective room without the consent of the other co-owners of the common spaces.
Article 678. Valuation of the mortgaged object
The market and replacement value of the mortgaged object must be established through an appraisal report prepared by an appraiser, in accordance with the legislation on appraisal activity.
Article 679. Substitution goods and compensation
(1) If, under the law, the ownership right of the pledgor over the pledged property ceases, the pledge shall extend by right to the substitute property or the compensation due to the pledgor, unless the pledge agreement provides otherwise. In this case, the priority rank of the pledge over the substitute property or the compensation shall be determined by the moment of the appearance of the pledge over the property whose ownership has ceased.
(2) The pledge extends to insurance compensation, except in the case where the insured event occurred due to the fault of the pledgor or if the pledge contract provides otherwise.
(3) If they are aware of the existence of a pledge on the property, the persons who owe the compensation amounts are obliged to notify the pledgee, at the address indicated in the register of guarantees or, in the case of a mortgage, in the register of immovable property, of the intention to pay such compensation. The pledgee must respond within 10 days of receiving the notification, indicating one of the following ways of using the compensation:
a) payment to the pledgee for the extinguishment of the secured obligation, if he has sent the enforcement notice according to art. 752 paragraph (1);
b) payment to the account of the pledgor, indicating the account, when a pledge has been established on the right to funds in the bank account, according to art. 699 para. (2); or
c) payment to the pledgor or as directed by the pledgor.
(4) For the purposes set out in paragraph (3) letter b) of this article, the pledgor shall ensure the establishment of a pledge over the right to the funds in the bank account, in accordance with art. 699 paragraph (2), within 3 days from the date of the pledgee’s request. In the event of non-performance of this obligation, the pledgee shall be entitled to request the early performance of the secured obligation and to place the object of the pledge under investigation, in accordance with the provisions of art. 744 paragraph (1).
(5) The persons who owe compensation must:
a) without undue delay, pay the compensation as indicated in the pledgee’s response; or
b) if the pledgee has not responded within the period indicated in paragraph (3) and there is proof of receipt of the notice by him, to pay compensation to the pledgee or as indicated by the pledgee.
(6) The pledgee shall pay the compensation received in accordance with the provisions of paragraph
(3) letter a) upon the extinguishment of the guaranteed obligation.
(7) If the compensation paid by the insurer to the pledgee exceeds the balance of the pledgee’s claims against the pledgee, the former shall refund the difference to the pledgee or his successors.
Article 680. Obligations of the insurer towards
by the secured creditor
(1) The obligations set out in this Article shall apply whenever the insurer is provided with proof that a third party (the secured creditor) holds a security interest in the property that is the subject of a property insurance. This proof need not be repeated if the insurance is extended or a new insurance is taken out between the same parties in respect of the same insured property. The insurer shall be bound by these obligations until it is informed of the termination of the security interest.
(2) Unless the insurer and the creditor have agreed otherwise by contract, the insurer is obliged:
a) confirm in writing to the secured creditor that it recognizes him as a secured creditor to whom it has the obligations provided for in this article;
b) at the request of the secured creditor, provide written information about the existence of the insurance policy regarding the encumbered property in favor of the secured creditor and the amount insured under the policy;
c) to send to the secured creditor, without undue delay, the warning provided for in art. 1848 paragraph (1) letter a);
d) within 7 days after being notified of the occurrence of an insured event that could result in a claim greater than 5% of the insured amount, to send the pledgee information about this fact.
(3) The insurer may request from the insured or the creditor the reimbursement of actual expenses incurred in the performance of the obligations provided for in paragraph (2).
(4) If an insurance premium or an installment is not paid on time, the insurer remains obliged, based on the insurance, to make the payment in favor of the secured creditor within one month of the due date or after sending the warning provided for in art. 1848 para. (1) let. a) or, if these conditions have not been met, after the information about the termination of the insurance has been sent to him.
(5) The termination of the insurance shall take effect with respect to the secured creditor only after the expiry of the period of 2 months after the information on the declaration of termination of the insurance has been sent to him. This provision shall not apply if the secured creditor has given his consent to the termination.
(6) The provisions of paragraph (5) first sentence shall also apply if the insurer and the insured modify the insurance conditions and agree to reduce the coverage granted by the insurance or provide that the insurer’s benefit is limited to the payment of the repair costs of the real property borne by the insured.
(7) If the insured exercises a right to terminate the insurance, the declaration of termination shall not produce legal effects as long as the insured does not provide evidence of the termination of the security interest in the insured property or of the existence of consent to termination on the part of the secured creditor. The secured creditor may not refuse to give consent without good reason.
(8) The insurer shall be subrogated to the real right of security to the extent that it pays the insurance indemnity to the secured creditor. The legal provisions on subrogation shall apply accordingly.
(9) Subrogation may not be opposed to other secured creditors in relation to the same property to which the insurer continues to be obligated under the insurance.
Article 681. Products
The pledge of the property extends by right to the products of the property, to the products of the sale or other disposal of the pledged property, including in accordance with the provisions of art. 697 paragraph (1), or to its products, unless the creditor and the pledgor have agreed otherwise. In this case, the priority rank of the pledge over the products of the property, to the products of the sale or other disposal of the property or its products is determined by the moment of the appearance of the pledge over the property.
Article 682. Pledge of future property
The pledge on the property that will enter the pledgor’s patrimony in the future, including on future property, does not encumber these property until the moment when the pledgor becomes the holder of the pledged rights. The priority rank of the pledge is established according to art. 736 para.(1).
Article 683. Transformation of goods
The pledge subsists on the new movable property resulting from the transformation of a pledged property.
The pledge extends to what results from the confusion (mixture) or union of several movable property, some of which have been pledged. The person who acquires the right of ownership of the new property is, in particular by virtue of the rules on the accession of movable property, bound by this pledge.
Section 4
Conventional pledge
Subsection 1
Establishing the pledge
Article 684. Pledge contract
(1) The pledge contract, with the exception of the pledge by dispossession, shall be drawn up in writing, under penalty of nullity. The mortgage contract shall be concluded in authentic form.
(2) In the case of pledging of an property whose sale must be notarized, the pledge agreement must also be notarized. The parties may agree on the notarization of any pledge agreement.
(3) The form of the contract amending the pledge contract must be similar to the form provided for the pledge contract.
(4) The pledge agreement must contain:
a) the names and surnames (names) of the parties;
b) the domicile (headquarters) of the parties;
c) the express agreement of the pledgor to constitute the pledge in favor of the pledgor;
d) description of the pledged property, and in the case of a mortgage, additionally the market value and replacement value of the mortgaged property, established in the valuation report, will be indicated;
e) the essence and maturity of the obligation secured by the pledge, its maximum guaranteed amount, excluding interest and expenses, as well as the method of determining the additional amounts secured by the pledge;
f) the type of collateral.
(5) The parties may include other clauses in the pledge contract.
(6) The pledge clause may be included in the contract from which the obligation secured by the pledge arises. In this case, the contract from which the debtor’s obligations arise must be concluded in compliance with the form required for the pledge contract and include its essential clauses.
(7) The clause whereby the pledgee becomes the owner of the pledged object in the event of non-performance or improper performance of the obligation secured by the pledge is void.
(8) The provision of paragraph (7) shall not apply in the case of simultaneous compliance with the following conditions: the object of the pledge is the national currency or foreign currency, with the exception of jubilee and commemorative coins (including those containing precious metals); the currency in which the secured obligation is to be performed does not differ from the currency of the funds on which the right was pledged. In this case, the pledgee becomes the holder of the right regarding the funds that constitute the object of the pledge under the conditions established in art. 750.
(9) The pledge agreement shall be valid even if it was concluded despite an agreement between the pledgor and a third party which in any way limits the pledgor’s right to pledge the property. The third party may claim compensation from the pledgor for the damage caused by the breach of this agreement and may exercise other legal means of defence, but such breach shall not constitute grounds for the nullity of the pledge agreement.
Article 685. Informing the creditor about
to third party rights
Upon conclusion of the pledge agreement, the pledgor is obliged to notify the pledgee in writing of the rights of third parties over the pledged object known to him at the time of the pledge. Failure to perform this obligation entitles the pledgee to demand early performance of the obligation secured by the pledge or to amend the terms of the pledge agreement.
Article 686. Acquisition of the right in good faith
pledge
(1) Even if the pledgor is not the true owner of the pledged object nor does he have the authority to pledge it, the pledgor nevertheless acquires a valid pledge right if, at the time of the pledge, the following conditions are cumulatively met:
a) the pledgor is registered as the owner of the pledged object in the constitutive publicity register provided for by law or, in the case of objects over which the right is not acquired, according to the law, by registration in a publicity register, the pledged object or its representative bearer title is in the possession of the pledgor;
b) the pledgee did not know and should not have reasonably known that the pledgee is not the true owner of the pledged object nor does he have the authority to pledge it.
(2) The provisions of paragraph (1) shall not apply if the object to which the right is not acquired, according to the law, by registration in an advertising register has been stolen from the owner or legal possessor.
Article 687. Simultaneous acquisition of title
property and mortgage
(1) The notary authenticates the mortgage contract based on the sale-purchase contract not registered in the real estate register if the mortgage is established in connection with the acquisition of the property that is the subject of the sale-purchase contract.
(2) The sale-purchase contract and the mortgage contract shall be submitted simultaneously to the territorial cadastral body for the registration of the rights of the parties. The ownership right and the mortgage right over the immovable property shall be registered successively.
Subsection 2
The obligation secured by a pledge
Article 688. Secured obligation
(1) One or more obligations may be secured by a pledge. The secured obligation may be present or future, pure and simple or affected by modalities, determined or determinable, fixed or floating. The claim secured by the pledge must be determined or determinable at the time of the exercise of the pledge right.
(2) The pledge is valid only if the obligation guaranteed by it is expressed in lei or foreign currency, in monetary units of calculation or in any combination thereof.
(3) The pledge also extends to the payment of interest, commissions, penalties, fines, compensation for the damage caused, compensation for legal expenses, reasonable expenses for the maintenance of the pledged property and other reasonable expenses for exercising the right of pledge, unless the parties have agreed otherwise.
(4) An obligation that arises after the conclusion of the pledge agreement may be secured by a pledge if this fact is expressly stipulated in the agreement.
(5) In the case of securing future obligations, the parties shall expressly agree, in the pledge agreement, that the pledge shall guarantee the performance of any future obligation to the same pledgee.
(6) The pledge may also be constituted in such a way that only the maximum amount for which the property must guarantee is determined by registration in the register.
(7) A claim may be secured by several property and several persons.
(8) With the consent of the pledgee and the pledgee, another claim may be substituted for the claim for which the pledge is created. The substitution of the secured claim must not affect the rights of pledgees with a lower priority. The formal and registration requirements shall be duly observed.
Article 689. Pledge established to guarantee payment
a sum of money
A pledge established to guarantee the payment of a sum of money is valid even if, at the time of its establishment, the pledgor has not yet received the performance for which he is obligated or has received it only partially or in installments. This rule applies in particular to the granting of credits, loans or the issuance of bonds or other debt securities.
Article 690. Consequences of refusal to transmit
amounts of money
If the pledgee refuses to hand over the sums of money that he has undertaken to lend and in whose guarantee he holds a pledge, he is obliged to reduce the pledge (except for the mortgage) or to cancel it, under penalty of compensating the damage caused to the pledgee.
Subsection 3
Pledge on movable property
§1. Peculiarities of pawning
Article 691. Establishment of a pawn
(1) The pledge is constituted by the delivery of the property or title to the pledgee or to a third party acting on behalf of the pledgee or, if the property is already in the hands of the latter, by maintaining possession based on the consent of the pledgee, for the purpose of securing the creditor’s claim.
(2) For the appearance of a pledge, the conclusion of the contract in writing is not mandatory.
(3) The pledge is made public by the possession of the property or title exercised by the creditor and remains public only if the possession is continuous. The publicity determines the priority rank of the pledge in accordance with the provisions of art. 736 para. (1).
Article 692. Preservation of the right of pledge
(1) The pledge subsists if the exercise of possession is prevented by a third party, without the creditor’s consent.
(2) The pledge subsists even if the exercise of possession is temporarily interrupted by the remittal of the property or title to the pledgor or to a third party for evaluation, repair, transformation or improvement.
(3) With the consent of the pledgor, the creditor may exercise possession through a third party, who must be informed of the title to the property.
Article 693. Pledging of negotiable instruments
(1) The pledge encumbering goods represented by a bill of lading or other negotiable title arises at the moment when the pledgee has performed his performance if the title is delivered to him within the following 10 days.
(2) If the title is negotiable by endorsement and remittance or by remittance only, its transmission to the pledgee takes place by endorsement and remittance or by remittance only.
Article 694. Receipt regarding the secured obligation
The pledgee is obliged to issue, at the request of the pledgee, a receipt regarding the nature and, to the extent possible, the amount of the obligation, the performance of which is guaranteed by the pledged property. A pawn receipt is issued for the property taken over, confirming the conclusion of the pawn contract.
Article 695. Peculiarities of pawning at a Lombard
(1) The pawnbroker does not have the right to use and dispose of the pawned goods and is liable for their loss or damage to the extent that he cannot prove that the loss or damage is the result of an impediment beyond his control.
(2) If the loan secured by the pawning of goods to a pawnbroker is not repaid on time, the pawnbroker has the right to sell, after the expiry of the one-month grace period, the pawned good in accordance with the rules for the sale of pawned property. The pawnbroker’s claims against the debtor shall also be extinguished when the proceeds from the sale do not cover the debt.
(3) The terms of the pawnshop agreement that limit the debtor’s rights in relation to those conferred by the provisions of this Code or other laws are null and void. In place of such terms, the corresponding legal provisions shall apply.
§2. Particularities of the pledge on a
universalities of goods
Article 696. Establishment of a pledge on a universality
of goods
In the case of a pledge on a universality of goods, it is not necessary to individualize its constituent parts. All goods that, according to the specificities of the type indicated in the contract, can be attributed to this universality are considered pledged in the amount established by the contract.
Article 697. Alienation or substitution of goods
from the universality of pledged goods
(1) The pledgee has the right to sell or otherwise alienate the goods from the universality of goods in the ordinary course of his activity, free from pledge, provided that the alienated goods are replaced by other goods of the same nature within the term agreed with the pledgee. In case of failure to comply with this condition, the pledgee retains a pledge on the proceeds of the alienation of the goods, in the manner established in art. 681, but cannot invoke the right of pledge against the acquirer of the goods.
(2) The pledge of a universality of goods subsists even if the goods have been lost or destroyed, provided that the pledgor has substituted them within the period of time indicated by the pledgee with goods of the same nature or with other goods accepted by the pledgee.
(3) The right of the pledgee to sell or otherwise dispose of the property from the universality of property is suspended by operation of law from the moment the pledgee receives the enforcement notice according to art. 752 paragraph (1).
§3. Particularities of the pledge on goods
incorporeal
Article 698. Pledge on patrimonial rights
(1) Any patrimonial right may be encumbered with a pledge, including rights over intellectual property objects, monetary claims, other contractual claims and claims arising from other grounds for the emergence of obligations, with the exceptions provided for by law.
(2) The pledge of patrimonial rights does not require the consent of the debtor of the patrimonial obligation, except in cases provided for by law.
(3) The pledge on patrimonial rights extends to any personal or real guarantee that ensures the payment or other performance of the patrimonial obligation, unless the pledge contract provides otherwise.
(4) The pledge on patrimonial rights extends to any personal or real guarantee that ensures the payment or other performance of the patrimonial obligation despite the agreement between the pledgor and the debtor of the patrimonial obligation that limits in any way the right of the pledgor to encumber the patrimonial rights or the personal or real guarantee that ensures the payment or other performance of the obligation.
(5) The debtor of the patrimonial obligation may request the pledgor to compensate for the damage caused by the breach of the agreement indicated in paragraph (4) and may exercise other legal means of defense, but this breach does not constitute grounds for the nullity of the pledge contract or the contract from which the patrimonial rights result.
(6) The debtor shall perform the patrimonial obligation in accordance with its terms, until he receives from the pledgee the notice of performance in accordance with art. 752 paragraph (1). After receiving the notice of performance, the debtor shall perform the patrimonial obligation only in accordance with the instructions of the pledgee, under penalty of payment of damages.
(7) With the consent of the pledgor, the pledgor has the right to exercise the rights provided for in art. 751 even before the initiation of the exercise of the pledge right, according to art. 744, being obliged to direct the proceeds obtained from the performance of the patrimonial obligation to the extinguishment of the secured obligation.
Article 699. Pledge on the right to means
money in bank accounts
(1) The pledge on the right regarding the funds located and to be deposited in bank accounts (current, deposit, other accounts) is constituted by the registration or by the acquisition by the pledgee of control over the accounts, in accordance with the provisions of paragraph (2).
(2) The pledgee acquires control over the bank account of the pledgee when:
a) the pledgee is the bank in which the account is opened – from the moment of concluding the pledge agreement; or
b) the pledgor, the pledgor and the bank where the account is opened agree in writing through the control agreement that the bank will execute the pledgor’s instructions regarding the disposal of the funds in the account, regardless of the pledgor’s consent – from the moment of concluding the control agreement.
(3) The bank is obliged, at the request of its client who intends to pledge the rights to the funds in the account opened with the respective bank, to conclude the control agreement with the pledgee. The bank may refuse to conclude the agreement only when, according to the legislation on combating money laundering and terrorist financing or other legal provisions, the bank is prohibited from establishing business relations with the respective pledgee.
(4) Unless the pledge agreement provides otherwise, the pledgor is free to dispose of the funds in the bank account.
(5) The right of set-off of obligations, held by the bank under the law, is not affected by the right of pledge over the right to funds in accounts.
(6) By virtue of the rules on banking secrecy, the bank may refuse to provide information regarding the existence of a pledge on the right to funds in accounts, established through control.
(7) If the funds are placed under seizure at the request of other creditors, the bank shall notify the pledgee of this fact (if this is not the bank itself) and inform the bailiff about the existence of the pledge. In this case, the pledgee shall have the right to request the early performance of the secured obligation and to place the pledged object under seizure, unless the pledge agreement provides otherwise, by joining the performance within the term indicated in art. 101 paragraph (1) of the Enforcement Code.
(8) After receiving the enforcement notice issued by the pledgee in accordance with art. 752 paragraph (1), the bank shall refuse to execute the pledgee’s orders to debit funds from the account if, as a result of such debiting, the account balance will be reduced below the balance of the secured obligation indicated in the enforcement notice.
(9) The bank shall be jointly and severally liable with the pledgor for the damage caused to the pledgor in connection with the bank’s breach of the obligations provided for in paragraph (7).
Article 700. Pledge of transferable securities
and negotiable securities
(1) The pledge of transferable securities is regulated by this Code and by Law No. 171/2012 on the capital market.
(2) Pledge shares do not give the pledgee the right to participate as a shareholder in general meetings, the right to participate being reserved for the shareholder.
(3) The pledge of the negotiable instrument is constituted by registration or by the acquisition by the pledgee of possession of the instrument, in accordance with the provisions of art. 693.
(4) The pledge of the negotiable instrument extends to the tangible property that are the subject of this instrument, provided that the issuer of the instrument is in possession of the property, directly or indirectly, at the time when the pledge of the instrument arises.
§4. Peculiarities of the pledge upon issuance
bonds secured by own property
of the issuer and/or third party
Article 701. Provision of collateral upon issuance of bonds
secured by the issuer’s own property
and/or third party
(1) By way of derogation from the provisions of art. 684, the establishment of a pledge to guarantee the payment of a sum of money in the case of the issuance of bonds secured by the issuer’s own property and/or those of a third party takes place without concluding a pledge contract, based on the bond issuer’s application, to which is annexed:
a) the issuer’s agreement to constitute the pledge in favor of the bondholders;
b) copy of the issuer’s state registration certificate;
c) extract from the state register of legal persons and individual entrepreneurs;
d) the minutes of the meeting of the competent body of the issuer that adopted the decision to issue the bonds;
e) the prospectus of the public bond offering, drawn up in accordance with the legislation on the capital market;
f) the list of property to be pledged, indicating the necessary data to be entered in the register, including the value of the pledged property and the value of the bond issue without interest and expenses.
(2) The pledge specified in paragraph (1) shall be deemed to have been established from the moment of its registration in accordance with art. 674.
(3) After registering the prospectus of the public bond offering with the National Financial Market Commission and until the initiation of the bond placement, the issuer is obliged to submit to the pledge registration body:
a) the decision of the National Financial Market Commission on the registration of the prospectus of the public bond offering, published in the Official Gazette of the Republic of Moldova;
b) a copy of the public bond offering prospectus, registered with the National Financial Market Commission.
(4) Based on the documents submitted by the issuer in accordance with the provisions of paragraph (3), data regarding:
a) the class of bonds;
b) date and number of state registration of the bonds;
c) the term of circulation of the bonds and their maturity date.
(5) The registration in the register of guarantees shall also contain the mention that the pledgees are the bondholders according to the list drawn up, on the date of expiry of their circulation term, by the Central Single Depository of Securities.
Article 702. Cancellation of pledge upon issuance of bonds
secured by the issuer’s own property
and/or third party
The following may serve as grounds for the cancellation of the pledge established according to art. 701:
a) the decision of the National Financial Market Commission regarding the rejection of the application for registration of the prospectus of the public bond offering;
b) the decision of the National Financial Market Commission regarding the removal of issued bonds from the state register of securities;
c) the decision on declaring the bond issue unexecuted or invalid, if the placement of the bonds did not take place;
d) court decision.
Article 703. Exercise of the pledge upon issuance
bonds secured by property
own of the issuer and/or third party
In the event of the issuer’s failure to fulfill its obligations under the bonds secured by the issuer’s own property and/or those of a third party, the bondholders (pledgees) referred to in art. 701 para. (5) are entitled to initiate the procedure for exercising the right of pledge, in the manner established by law.
Subsection 4
Peculiarities of the pledge on the enterprise
Article 704. The concept of pledge on the enterprise
The pledge on the enterprise as a patrimonial complex extends to all movable property of the enterprise.
Article 705. The right of option of the pledgee
The pledgee who has obtained possession of the pledged property, in accordance with the provisions of art. 755 or, as the case may be, of art. 757, is entitled to sell it under the general procedure, according to art. 764, or as a whole, according to art. 706.
Article 706. Exercise of the right of pledge over
COMPANY
(1) If the pledgee has decided to exercise the right of pledge over the enterprise by selling it as a whole, the notice of performance of the pledge shall contain, in addition to the data provided for in art. 752 paragraph (10), a mention to this effect.
(2) The notice of enforcement of the pledge shall be filed with the register of guarantees and shall be sent to all banks known to have control over the bank accounts of the pledgor in accordance with the provisions of art. 699 paragraph (2).
(3) The pledgee may at any time waive the exercise of the pledge right over the enterprise as a whole and proceed to exercise the pledge right based on the general rules established in art. 764. In this case, he shall file in the register of guarantees a notice of amendment regarding the enforcement notice filed in accordance with par. (1) of this article.
Section 5
Legal pledge
Article 707. Claims from which the pledge may arise
legal
(1) Legal pledge may arise only from:
a) state claims for amounts due under tax and customs legislation;
b) claims resulting from a court decision.
(2) The legal pledge may encumber movable and immovable property.
(3) The legal pledge may not encumber property or patrimonial rights already pledged in favor of other creditors, unless the pledge contract provides otherwise.
Article 708. Legal pledge to secure receivables
tax and customs
(1) In the case of state claims arising under tax and customs legislation, the legal pledge shall be constituted only if it is registered in accordance with art. 674. The application for registration shall be a notice indicating the property that the creditor intends to exploit, the basis of the claim and its amount. The pledgee shall be obliged to notify the pledgee of the registered notice.
(2) The notice submitted for registration shall be accompanied, as appropriate, by the court decision or the document confirming the state’s claims against the pledgor arising under tax or customs legislation.
Article 709. Legal pledge established on the basis of the decision
COURTS
(1) The creditor in whose favor a court decision has been issued regarding the collection of a sum of money may obtain a legal pledge on a movable or immovable property of his debtor.
(2) The legal pledge is established by registering a notice, which indicates the pledged property and the amount of the claim, and in the case of a pension or maintenance allowance – the amount of the periodic payments and the indexation coefficient. An authenticated copy of the court decision and proof of the notice being brought to the attention of the debtor shall be attached to the notice.
Article 710. Reduction, substitution or deletion
legal pledge
At the request of the owner of the legally pledged property, the court shall determine which property may be pledged, may reduce their number or allow the claimant to replace the legal pledge with another security sufficient for the payment of the claim. In this case, the court may decide to cancel the registration of the legal pledge.
Article 711. Exercise of the right of pledge
The creditor who has registered his legal pledge has the right to pursue the pledged property under the conditions provided for in section 8.
Section 6
Registration of pledge of movable property
Article 712. Register of guarantees
(1) The register of guarantees is a public register, in which the pledge of movable property is registered, as well as any other guarantee rights over movable property provided for in art. 722.
(2) The register of guarantees is the only official source of information regarding registered guarantee rights over movable property, including for the purpose of determining the priority rank of the pledge.
(3) The organization and operation of the collateral registry, its security and integrity requirements, the manner in which the holder of the collateral registry transmits data on registered pledges and other collateral rights to the holders of other registries and the manner in which the functions between registries are coordinated, as well as the related payments to be collected, shall be regulated by a regulation approved by the Government. The collateral registry shall be organized in such a way as to ensure that the registration and access processes to the registry are simple, efficient, publicly accessible and transparent.
Article 713. Grounds for registration of pledge,
changing and canceling registration
PLEDGE
(1) The pledge is registered based on the registration notice.
(2) Amendments to the pledge registration notice shall be recorded on the basis of the amendment notice. Deletion of the pledge registration notice shall be recorded on the basis of the deletion notice.
Article 714. Registration procedure
(1) The registration of the pledge shall take place by filing in the register of guarantees a registration notice, which contains the information indicated in paragraph (2) of this article. The registration notice may be filed by any person registered by the Ministry of Justice with the right of active access to the register of guarantees (registrar). The list of authorized registrars shall be made public in accordance with the regulation provided for in art. 712 paragraph (3).
(2) The registration notice shall contain:
a) identification data (surname and first name, state identification number (IDNP) and address of the natural person or name, state identification number (IDNO) and address of the legal person or individual entrepreneur) of the pledgor, the pledgor and the pledge manager (if the latter has been appointed);
b) general or specific description of the pledged property;
c) the nature and maturity of the guaranteed obligation, its maximum guaranteed amount, excluding interest and expenses;
d) in the case of a pledge on the enterprise, a statement that the pledge represents a pledge on the enterprise;
e) the signature of the pledgor and that of the pledgor.
(3) The registration notice shall be submitted to the registrar on paper, with the handwritten signature of the parties, or by electronic means of communication, with the electronic signature of the parties, applied in accordance with the regulation provided for in art. 712 paragraph (3).
(4) The Registrar shall accept the data exactly as contained in the pledge registration notice to the extent that they can be registered in the register of guarantees. The Registrar shall not request a copy of the pledge agreement and shall not verify the content of the notice, but shall be obliged to verify the identity of the parties and the powers of representation.
(5) The registrar shall record the pledge registration notice in the pledge register immediately upon receipt.
(6) The registrar shall refuse to accept the pledge registration notice if it does not contain all the data provided for in paragraph (2).
(7) After the registration of the pledge, the pledgee shall receive a confirmation of the registration of the pledge, in accordance with the regulation provided for in art. 712 para. (3). In addition to the data in the registration notice, the confirmation must contain the time of registration (date, hour and minute).
(8) For the purposes of this chapter, including the notifications provided for in art. 752, any obligation to notify the persons indicated in par. (2) letter a) of this article shall be deemed to have been duly sent if the notification (notice) is sent (sent) to the last address of the person indicated in the register of guarantees. However, if the recipient of the notification has previously notified the sender of the notification of a change of address, the notification (notice) shall be sent to the last address so notified.
Article 715. State duty and payment for registration
the pledge and for providing information
(1) For the registration of the pledge, the issuance of the extract from the register of guarantees or the provision of any other information regarding the registration of the pledge, a state fee shall be charged in the amount provided for by the State Fee Law no. 213/2023 and a payment in the amount established in the regulation provided for in art. 712 paragraph (3).
(2) Courts, bailiffs, insolvency administrators/liquidators in insolvency proceedings, criminal prosecution bodies, tax authorities and other public authorities have free access to the register of guarantees.
Article 716. Modification of information regarding
pledge registration
(1) When registering changes to the information regarding the registration of the pledge, the provisions of art. 714 shall apply accordingly.
(2) The notice of modification of the information regarding the registration of the pledge shall be signed by the pledgee and the pledgor, except for the notice of registration of the modifications related to the registration of the substitution of the pledgee following the assignment of the secured claim in accordance with the provisions of art. 738, which shall be signed only by the pledgee.
(3) The initial registration shall be maintained and indicated in the collateral register in such a way as to allow monitoring of changes in the collateral information.
Article 717. Increasing or supplementing the object
of the pledge or of the secured claim
The increase or completion of the object of the pledge or the claim secured by it is carried out, with the agreement of the parties, by making changes to the existing pledge contract or by concluding a new pledge contract, in which case the pledge will be registered according to the rules established for the register of guarantees.
Article 718. Deletion of the pledge from the register of guarantees
(1) Following the extinguishment of the pledge, the information about the pledge is removed from the register of guarantees.
(2) The pledge is deleted from the register of guarantees based on the deletion notice issued by:
a) the pledgee, on his own initiative or at the request of the pledgee, according to paragraph (3);
b) the pledgor, pursuant to the court decision;
c) the buyer of the pledged property, based on the confirmation of sale issued by the pledgee according to art. 771, by the bailiff according to the Enforcement Code or by the insolvency administrator/liquidator according to the Insolvency Law no. 149/2012.
(3) The pledgee is obliged to issue to the pledgor or, if agreed with him, to file directly in the register of guarantees a notice of cancellation of the respective notice of registration of the pledge within 3 days from the termination of the pledge in accordance with art. 675, unless the contract provides for a longer period. The pledgee is liable to the pledgor for the damage suffered as a result of the breach of this obligation.
(4) Information about the extinguishment of the pledge shall be kept in the database of the collateral register for 25 years.
Article 719. Effects of registration
(1) The fact that information is recorded in the register of guarantees does not constitute a legal presumption of its veracity.
(2) Registration in the register of guarantees does not confer validity to a pledge struck by nullity. The provisions of art. 416 remain applicable.
(3) From the moment of registration of the pledge, no one may invoke ignorance of the information recorded in the register of guarantees.
(4) In relations with third parties in good faith, the pledgor or the pledgor may not invoke the incorrectness of the information in the register of guarantees.
Article 720. Passive access to the collateral register
(1) Any person may consult the register of guarantees and obtain an extract from it. The extract from the register of guarantees is issued in accordance with the regulation provided for in art. 712 paragraph (3).
(2) The Ministry of Justice may allow, on a contractual basis, interested persons continuous passive access to the collateral register.
(3) The pledgor may request that third parties be prohibited from accessing the information in the register of guarantees regarding the pledge on his property. In this case, it shall be presumed that the entire property of the pledgor are encumbered with a pledge. The clause prohibiting third party access shall not prevent the pledgor or the pledgor from allowing, by written consent, a third party access to the information in the register of guarantees regarding the pledge on the pledged property.
Article 721. Challenging actions or inactions
REGISTRAR
Any person has the right to challenge in court the refusal to register the pledge or the amendments or cancellation of the pledge registration notices, the rejection of the enforcement notice, the illegal registration, the release of erroneous information, the late submission or the unfounded refusal to present the necessary information about the pledge registration.
Article 722. Registration of other security rights
(1) Leasing may be registered in the register of guarantees in the cases provided for in art. 1321 para. (3) letter c).
(2) Other security rights may be registered in the security register in the cases provided for by law.
(3) The procedure for registering leasing and other security rights in the security register is governed by this section and the regulation provided for in art. 712 paragraph (3).
(4) The priority rank between different security rights subject to registration in the security register is determined by the time of registration in the security register.
Section 7
The effects of the pledge
Article 723. General provisions on rights
and the obligations of the parties
in the pledge contract, the pledgor and the pledgor are free to establish, by mutual agreement, the rights and obligations of each of them, unless the law provides otherwise.
Article 724. Duty of diligence
(1) Neither the pledgor nor the possessor of the pledged property may destroy or damage the pledged property or diminish its value unless this is done through normal wear and tear or in case of necessity.
(2) In the event of danger of destruction or damage to the pledged property, as well as in other cases that may affect the rights of the other party under the pledge contract, the party holding it is obliged to immediately inform the other party, who is entitled to examine the property.
Article 725. Creditor’s rights in case of loss
or damage to the pledged property
(1) In the event of loss or damage to the pledged property, the pledgee may, in addition to other rights provided by law, claim compensation up to the amount of his claim based on the same pledge, even if his claim is not due.
(2) If, following damage, the pledged property can no longer be used according to its direct purpose, the pledgee is entitled to request the substitution or completion of the pledged property or the payment by the pledgee of its value established in the contract.
(3) If the pledgor refuses to replace the pledge or cannot replace it within a reasonable period of time granted by the pledgor, he is obliged to register in the respective register in which the information about the loss of his pledge is registered. The information is registered based on the unilateral request of the pledgor. The provisions of Section 6 shall apply accordingly.
(4) If the pledgor breaches the obligations to preserve, maintain, repair or insure the pledged property and does not remedy such breaches within a reasonable period of time after notifying the pledgor, and in the case of serious breaches – without prior notification thereof, the pledgor shall be entitled to take measures to ensure the integrity of the pledged property in the name and on the account of the pledgor. The pledgor shall reimburse the costs incurred in this respect by the pledgor unless he proves that they were unjustified or unreasonable.
(5) If the pledged property is destroyed, damaged or its value has decreased considerably due to the action or inaction of the pledgor, the pledgor has the right to request the early performance of the secured obligation from the debtor.
Article 726. Obligations of the creditor who holds
the pledged property
(1) The pledgee must take all necessary steps to preserve the property he holds. The costs of preserving the property incurred by the pledgee shall be reimbursed by the pledgee unless the contract provides otherwise.
(2) The pledgee may not use the pledged property without the permission of the pledgee.
(3) In the event of the use of the pledged property, the pledgee must submit a report to the pledgee. In the absence of a contrary stipulation, the pledgee shall remit to the pledgee the fruits he has obtained and, in the event of the exercise of the pledge, shall use the proceeds to pay the expenses, then the interests and then the obligation itself.
(4) The pledgee is not liable for the loss of the pledged property caused by an impediment beyond his control or by the maturation, perishability or normal and authorized use of the property.
(5) The pledgee is obliged to immediately return the pledged property to the pledgee upon the discharge of the secured obligation.
(6) The pledgee obliged to return the property pursuant to a court decision thereby loses his right of pledge.
(7) The heirs of the pledgee are joint and several pledgees only within the limits of the real value of the estate property that have passed to them.
Article 727. Rights and obligations of the pledgor
(1) The pledge does not deprive the pledgor and the possessor of the pledged property of their rights over the pledged property. They must exercise their rights without prejudice to the rights of the pledgee, unless the contract provides otherwise.
(2) The pledgor has the right to use the pledged object according to its intended purpose and to acquire its fruits until the exercise of the pledge right is initiated, unless otherwise provided for in the contract or in the essence of the pledge.
(3) The pledgor shall not have the right to sell or otherwise dispose of the pledged property unless the law (including Article 697 paragraph (1)) provides otherwise or unless otherwise agreed with the pledgor, except in cases where he has authorization to do so, issued by the pledgor (by all pledgors, in the case of the subsequent pledge).
(4) The pledgor shall not have the right to transfer the pledged property for free or for a fee without the written consent of the pledgor, unless otherwise agreed with the pledgor.
(5) The clause that limits the right of the pledgor to leave the pledged property by will is void.
(6) The heirs of the pledgor are joint and several pledgors only within the limits of the real value of the estate property that have passed to them.
(7) In the event of the transfer, including alienation, of the pledged property to third parties, the pledge shall subsist, except in cases where the pledgee consents in writing to the termination of the pledge.
Article 728. Preservation, maintenance and repair
the pledged property
(1) Unless the pledge agreement provides otherwise, the pledgor is obliged to keep the pledged property, to maintain it, not to destroy it, not to damage it and not to diminish its value in any other way, except within the limits of its normal wear and tear.
(2) Unless the pledge agreement provides otherwise, the pledgor is obliged to bear all maintenance expenses for the pledged object, including those related to the protection of the pledged object against damage caused by third parties.
(3) Change of destination, reorganization, construction of outbuildings, as well as demolition, including partial demolition, of the pledged property are permitted only with the written consent of the pledgee.
Article 729. Insurance of the pledged property
(1) The mortgagee is obliged to insure the mortgaged property for the benefit of the mortgagee, at replacement value, against all risks of accidental loss or damage.
The mortgagee may insure the mortgaged property at the expense of the mortgagee if the property has not been insured by the mortgagee.
(2) In the case of a subsequent mortgage, insurance of the mortgaged property is not mandatory if the mortgaged property was insured under the previous mortgage.
(3) The pledge agreement may establish the obligation to insure the life and/or work capacity of the debtor, up to the value of the outstanding balance, for the entire duration of the pledge agreement.
(4) The insurance shall be provided by an insurer agreed upon with the pledgee. The pledgee may not impose a specific insurer.
Article 730. The pawnbroker’s obligation to insure the pawn
(1) The pawnbroker is obliged, at the time of transfer of possession, to insure the goods received as collateral at his own expense.
(2) The clause that excludes the obligation to insure is void.
(3) The insurance is carried out in the amount of the full value of the pledged property, according to estimates made with the agreement of the parties to the pledging of the property, which are determined based on market prices for the categories and quality of the pledged objects.
Article 731. Defense of the right to property
pledged in case of third party claims
(1) In the event of claims for restitution, encumbrance or recognition of the right of ownership or other rights over the pledged property, submitted to the pledgor by third parties, the pledgor is obliged to exercise all legal measures to defend his rights.
(2) In all cases of infringement of the rights of the pledgor, including in the case of filing a lawsuit in court on the basis of the claims specified in paragraph (1), the pledgor is obliged to notify the pledgee of this fact in writing within 3 days from the date on which he learned or should have learned about the infringement of his rights. For non-performance or improper performance of the notification obligation established in this paragraph, the pledgee is entitled to request the debtor to perform the obligation secured by the pledge early, as well as to repair the damage caused.
(3) If the pledgor fails to defend his rights, including concluding a settlement agreement, the pledgor shall have the right to indirectly exercise all legitimate measures of defense in the name and on behalf of the pledgor, even in the absence of express authorization from the latter. The pledgor shall compensate all the costs of the pledgor unless he proves that they were unjustified or unreasonable. The provisions on indirect action shall apply accordingly.
Article 732. Verification of the pledged property
(1) The pledgee has the right to verify, in law and in fact, the existence, physical condition, storage and use conditions of the pledged property, provided that the pledgee and, where applicable, the holder of the pledged property have been notified in advance.
(2) The pledgor is obliged not to create impediments to the verification of the pledged property, to present to the pledgor all the documents and information necessary for the exercise of this right,
as well as to ensure, at the first request of the pledgee, his physical access to the pledged property
(3) The inspection of the pledged property must not disturb the use of the pledged property, nor infringe the rights of the pledgor or of the third party temporarily holding the pledged property.
Article 733. Substitution of the object of pledge
(1) The parties may agree on the conditions for the substitution of the object of the pledge.
(2) The substitution of the object of the pledge constitutes a new pledge. This rule does not apply when the substitution takes place by right in accordance with art. 697, art. 679 and in other cases provided for by law or contract.
Article 734. Pledge manager
The pledgee may appoint a pledge manager to act on his behalf and to undertake any action relating to the object of the pledge, within the limits of the rights granted, with the exception of the right to assign the claim secured by the pledge. The pledgee or the third party in whose possession the property is located is obliged to follow the instructions of the pledge manager.
Article 735. The following pledge
(1) The property pledged to guarantee the performance of a certain obligation (the previous pledge) may also be pledged to guarantee the performance of another obligation of the same or another debtor in favor of another pledgee (the subsequent pledge).
(2) The establishment of the following pledge is permitted if it is not prohibited by law. The priority rank of the guarantees is determined in accordance with the provisions of art. 736.
(3) The pledgor is obliged to inform each pledgor who holds a subsequent pledge about all previous pledges, under penalty of payment of damages.
(4) The pledgor is obliged to inform all pledgors who hold previous pledges about each subsequent pledge, immediately after the creation of any subsequent pledge, communicating to them the data provided for in art. 684 paragraph (4), under penalty of paying damages.
(5) The modification of previous pledges after the creation of subsequent pledges shall not prejudice the rights of the pledgee who holds a subsequent pledge, unless he agrees otherwise. In the event of an increase in the obligation secured by a previous pledge, the pledge guaranteeing the amount of the increase shall have a lower priority rank than the pledges created up to the time when the modification of the pledge was registered.
(6) The provisions regarding the subsequent pledge shall not apply if the pledgee and the pledgee agree to modify the existing pledge to secure obligations that were not previously secured by that pledge. However, this shall not affect the rights of lower priority pledgees.
Article 736. Priority rank of pledges
(1) The priority rank of pledges on the same property is determined by the moment of occurrence of the pledge, according to art. 673 para. (3). The obligation secured by a pledge of lower rank is satisfied only after the full satisfaction of the obligation secured by a pledge of higher rank.
(2) If the capacity of pledgee is cumulated by two or more persons, based on the same pledge contract, they shall have the same priority rank, unless the pledge contract provides otherwise. The provisions of art. 1943-1958 shall apply unless the pledgees have agreed otherwise.
(3) A lower-ranking pledgee may satisfy his claim from the pledged property before higher-ranking creditors only with the written consent of each higher-ranking creditor.
(4) The pledgees may agree on the share that will accrue to each of them from the proceeds of the sale of the pledged property.
(5) The provisions of this article also apply to public claims secured by pledge.
(6) The pledge on the right to funds in bank accounts made public by control in accordance with the provisions of art. 699 para. (2) has priority over the pledge made public by registration. If the bank where the account was opened has signed control contracts with several pledgees, the priority rank among these pledgees shall be determined depending on the moment of conclusion of the control contracts.
(7) The pledge of tangible property made public by possession of the negotiable instrument in accordance with the provisions of art. 693 has priority over the pledge made public by registration, except in the case where the pledge in favor of the pledgee who does not have possession of the negotiable instrument was registered before the moment when the goods became the object of the negotiable instrument.
(8) The following pledges have priority over pledges registered over a universality of goods (art. 696 and 697), the enterprise (art. 704), products (art. 681) and future goods (art. 682):
a) the registered pledge of an unpaid seller or creditor (including lessor), who financed the acquisition of an property, on that property, but only if this pledge was registered before the pledgor obtained possession of the property, and the seller or, as the case may be, the creditor notified the previous pledgee thereof;
b) the pledge registered on the software products purchased for use with the goods acquired under letter a);
c) the registered pledge on the harvest or its products, which guarantees the financing obtained to produce the harvest, established during the crop growing period or within 6 months before the crops are planted;
d) the registered pledge on livestock or their products, which guarantees the financing obtained for the purchase of animal feed, medicines or hormones, except that this pledge does not have priority over the unpaid registered pledge of the seller or creditor (including the lessor) who financed the purchase of animal feed, medicines or hormones.
(9) If two or more pledges registered on the same tangible property extend to the property resulting from transformation or confusion (mixture), the priority rank between them remains the same as before the transformation or confusion (mixture).
(10) In the event that two or more pledges registered on different tangible property extend to the same property resulting from transformation or confusion (mixture), the pledgees shall hold shares of the pledge on the property resulting from transformation or confusion (mixture) proportional to the market value of each property prior to transformation or confusion (mixture).
Article 737. Cession of priority rank
(1) The pledgee may cede to another pledgee the priority rank in the amount of the claim secured by the pledge, so that the latter takes the place of the former in the amount of the claim of the creditor who cedes the priority rank.
(2) The pledgee who has assigned the priority rank is obliged, within 3 days of the assignment, to notify the debtor and the pledgor when the latter is a third party.
(3) The assignment of the priority rank of the pledge is possible only within the same advertising register and for the same property.
(4) The assignment of priority rank is possible to the extent that the rights of another pledgee holding a pledge for the same property are not thereby prejudiced.
(5) The assignment of priority rank shall be registered upon the request of the pledgees in the same manner as the registration of the pledge and shall take effect from the date of registration.
Article 738. Assignment of the claim secured by pledge
(1) The pledge and the claim secured by it may only be transferred together and simultaneously.
(2) In the event of the assignment of the claim secured by a pledge, the new pledgee acquires the right of pledge in the amount held by the assignor. The pledgee remains obligated to the assignee creditor.
(3) In the event of the assignment of a part of the claim secured by a pledge, the new pledgee acquires the pledge right proportional to the part of the claim, unless the pledge contract provides otherwise.
(4) The assignment contract provided for in paragraph (1) shall be concluded in the form in which the contract from which the obligation secured by the pledge resulted was concluded.
(5) The substitution of the pledgee shall be registered in accordance with Article 716. The validity of the previous registration shall not be affected until the registration of the new pledge.
(6) The pledge and the secured claim shall pass to the new creditor as they existed with the previous creditor.
(7) The assignment of the pledge becomes enforceable against third parties from the moment of registration in the register in which the pledge is registered.
(8) The bank, as mortgagee, has the right to assign and/or pledge to third parties the present and future mortgage rights without the consent of the mortgagee. Mortgage contracts vested with an enforceable formula that are assigned to a bank are transmitted together with the right to extrajudicial enforcement.
Article 739. Taking over the debt secured by pledge
(1) The debt secured by a pledge may be taken over by another person only with the consent of the pledgee, and if the debtor of the secured obligation and the pledgee are different persons, also with the latter’s consent to be liable for the new debtor.
(2) The debt secured by a pledge may be taken over by another person without the consent of the pledgor (if this is a person other than the debtor of the secured obligation). In that case, the pledge shall be extinguished.
(3) If the debtor of the secured obligation and the pledgor are one and the same person, the pledge shall be maintained, unless the pledgor agrees to another guarantee or to the extinguishment of the pledge.
Article 740. Acquisition of pledged property
(1) In the event of the alienation of the pledged property, the pledge shall not be extinguished.
(2) By way of derogation from the provisions of paragraph (1), the property is acquired free of pledge if:
a) the pledgee has permitted the sale or other disposition of the property, free from pledge, in accordance with the provisions of art. 741 paragraph (1);
b) the pledgor sells the goods from the universality of goods in the ordinary course of his business, in accordance with the provisions of art. 697 paragraph (1);
c) the pledged property are purchased from the pledgee or from the person designated by the pledgee according to art. 764 or by the pledgee according to art. 772.
Article 741. Permission to sell free goods
pledge
(1) The pledgee may allow the pledgee to sell the pledged property, except for pawning.
2) The permission to sell pledged goods is suspended from the date of registration
of the enforcement notice and ceases on the date of deletion of this notice.
(3) The permission to sell the pledged property ceases at the moment of the transformation of the registered pledge into a pawn.
Article 742. Early performance of an obligation
secured by pledge
(1) The pledgee is entitled to request the early performance of the obligation secured by the pledge if the right of the pledgee to the object of the pledge has ceased on the grounds provided by law, as well as in the case of confiscation of the respective object of the pledge as a sanction for committing a contravention or committing a crime.
(2) The pledgee is entitled to request the early performance of the obligation secured by the pledge, and in the event of non-performance of his claim, to place the object of the pledge under prosecution if the pledgee:
a) violated the rules of the next pledge;
b) alienated the object of the pledge in violation of the provisions of art. 727 paragraph (3);
c) has not fulfilled the obligations provided for in art. 728;
d) is not in possession of the pledged object, contrary to the terms of the pledge agreement;
e) violated the rules for substituting the object of the pledge;
f) violated the deadline for making due payments;
as well as in other cases provided for by law or contract.
Article 743. Enforceability of the tenant’s rights
(1) If the pledged property is leased and the lease is enforceable against the pledgee, then the pledgee may exercise the pledge subject to compliance with the lease, and the buyer or other acquirer of the pledged property is subrogated to the lessor in the rights and obligations arising from the lease.
(2) For the purposes of paragraph (1), the lease is enforceable against the pledgee in one of the following cases:
a) the pledgee was informed about the lease in accordance with art. 685;
b) in the case of goods over which real rights are acquired, according to the law, by registration in a public register provided for by law, the lease was noted in that register on the date of the creation of the pledge;
c) the pledgee has consented to the transfer by the pledgee of the pledged property in lease pursuant to art. 727 paragraph (4).
Section 8
Exercise of the right of pledge
Subsection 1
General conditions for exercising the right of pledge
Article 744. General provisions regarding the exercise of
PLEDGE
(1) The pledgee shall have the right to pursue the object of the pledge, by exercising the rights provided for in paragraph (2), in the event of non-performance of the secured obligation or in other cases provided for by law or contract. If the secured obligation is to be performed in installments, the pledgee may also request the early performance of the entire obligation when part of the obligation is not performed.
(2) Under the terms of this section, the pledgee may exercise the following rights with respect to the pledged property:
a) to exercise the right of pledge over intangible property in accordance with the provisions of articles 749-751;
b) to obtain possession and sell the pledged tangible property, according to art. 754-764. The legal provisions regarding the sale of pledged tangible property also apply to the sale of pledged limited real rights that have as their object tangible property;
c) to obtain possession and lease the pledged property. In this case, the legal provisions regarding the sale of pledged tangible property shall apply accordingly to the determination of the commercially reasonable rent;
d) if the pledged property consists of the right to the intellectual property object, under the terms of the law, to benefit from a corresponding exclusive right, to sell or grant licenses for consideration to third parties. In the case of granting a license, the legal provisions regarding the sale of pledged tangible property shall apply accordingly to the determination of the commercially reasonable remuneration for the license;
e) to acquire the pledged property (except for capital securities, unless art. 8 of Law no. 184/2016 on financial collateral contracts provides otherwise), on account of the total or partial extinguishment of the secured obligation, in accordance with art. 772;
f) to exercise any other rights provided for by the pledge contract, unless they contravene the provisions of this code or other laws.
(3) The pledgee exercises his right of pledge, regardless of who possesses the pledged property.
(4) The satisfaction of creditors’ claims from the value of the pledged property of the debtor against whom insolvency proceedings have been initiated shall be carried out in the manner established by the insolvency legislation.
Article 745. Term of exercise
The pledgee may not exercise his pledge rights before the expiry of the term pursuant to art. 752 paragraph (12), except in the case provided for in art. 757 paragraph (2).
Article 746. Priority of exercise
(1) The senior creditor has priority in exercising his pledge rights over the lower ranking creditors. The provisions of art. 736 shall apply accordingly.
(2) The senior creditor is obliged to pay the expenses incurred by the junior creditor if, having been advised by the latter that he will exercise a right of pledge, he nevertheless fails to invoke the priority of his rights within a reasonable period.
(3) The senior pledgee who has received from the junior pledgee a notice of enforcement in accordance with the provisions of art. 752 paragraph (1) has the right to request the early enforcement of the secured obligation and to place the pledged object under prosecution, unless the pledge agreement provides otherwise.
(4) If the senior pledgee has not exercised his rights under paragraph (3), the senior pledge shall not be extinguished by the sale of the pledged property, unless otherwise agreed with the senior pledgee.
(5) A lower-ranking pledgee who has received from a higher-ranking pledgee a notice of enforcement in accordance with the provisions of art. 752 paragraph (1) has the right to request the early enforcement of the secured obligation and to place the pledged object under prosecution, unless the pledge agreement provides otherwise.
(6) The subordinated pledgee may not exercise the right provided for in paragraph (5) if the superior pledgee has initiated the exercise of the pledge right only over a part of the pledged property, and the remaining pledged property are sufficient to secure the claims of the subordinated pledgee.
(7) If the lower-ranking pledgee has not exercised his rights under paragraph (5) and no pledged property remain under paragraph (6), the lower-ranking pledge shall be extinguished.
(8) The pledgees who exercise their rights under paragraph (3) or (5) of this article shall notify the pledgee from whom they received the enforcement notice, within 10 days of the date of receipt thereof. Failure to notify shall result in the forfeiture of the right to participate in the distribution of the proceeds of the sale of the pledged property in accordance with art. 769, the provisions of paragraph (4) and, respectively, paragraph (7) of this article being applicable.
(9) If the higher-ranking pledge is not extinguished under the conditions of paragraph (4) of this article, the lower-ranking pledgee who sells the property under the conditions of art. 764 shall notify the buyer of this fact, under penalty of payment of damages.
Article 747. Usufruct right over pledged property
When a pledged property subsequently becomes the object of a usufruct, the pledge rights must be exercised simultaneously against the bare owner and the usufructuary or must be notified to the one against whom the pledge rights have not yet been exercised.
Article 748. Exercise of the right of pledge over
several goods
The pledgee whose pledge right encumbers several property may simultaneously or successively exercise the pledge right over the property he chooses.
Article 749. Exercise of the right of pledge over
transferable securities
and negotiable securities
(1) The pledgee who has sent the enforcement notice in accordance with the provisions of art. 752 paragraph (1) is entitled to:
a) to collect the amounts owed to the pledgee by the issuer of the transferable securities, including by submitting to it a request to pay the pledgee the amounts owed following the redemption of the securities; or
b) if he initiated the exercise of the pledge right until the maturity of the transferable securities or if the transferable securities are equity securities, to sell the transferable securities in accordance with the provisions of Law No. 171/2012 on the capital market.
(2) When exercising the right of pledge over securities that are not equity securities, the provisions of art. 751 para. (3), (4) and (6) shall apply accordingly.
(3) The pledgee who has sent the enforcement notice in accordance with the provisions of art. 752 paragraph (1) is entitled to:
a) to obtain possession of or otherwise exercise the right of pledge over the tangible property that are the subject of the negotiable title (warehouse receipt, bill of lading, etc.), in accordance with the provisions of this section; or
b) to sell the negotiable instrument.
(4) The pledgee has the right to exercise the pledge over transferable securities and negotiable instruments and in relation to the debtor of the personal or real guarantee that ensures the payment or other performance of the obligations related to such transferable securities and negotiable instruments, unless the pledge agreement provides otherwise.
Article 750. Exercise of the right of pledge over
the law regarding funds
in bank accounts
(1) The pledgee who has sent the enforcement notice in accordance with the provisions of art. 752 paragraph (1) is entitled to:
a) to debit the account with the amount of the pledged funds, within the limit of the amount of the secured obligation, and to direct the debited amounts to the extinguishment of the secured obligation – in the case provided for in art. 699 para. (2) letter a); or
b) to request the bank to debit the account with the amount of the pledged funds, within the limit of the amount of the secured obligation, and to pay it to the pledgee, who will apply it to the extinguishment of the secured obligation – in the case provided for in art. 699 para. (2) letter b).
(2) If the currency of the secured obligation and the currency of the funds in the bank account are different, the pledgee has the right to exchange the funds received in the currency of the secured obligation, with the repayment of the equivalent amount of the secured obligation at the official exchange rate of the National Bank of Moldova, on the date of debiting the account.
(3) The provisions of paragraph (2) are also applicable if the pledgee, in accordance with the provisions of this chapter, is obliged to direct the proceeds received to the settlement of the secured obligation, and the currency of these proceeds is different from the currency of the secured obligation.
Article 751. Exercise of the right of pledge over
patrimonial rights
(1) In the notice sent pursuant to art. 698 paragraph (6) or, as the case may be, the enforcement notice sent to the debtor of the patrimonial obligation pursuant to art. 752 paragraph (1), the pledgee is entitled to:
a) to request the debtor of the contractual or non-contractual monetary claim to pay the pledgee the amount of the claim and to indicate the information for payment;
b) to indicate to the debtor of the patrimonial obligation, other than the monetary claim, the manner of performance of the obligation and, if the pledgee requests the delivery of the goods, the date and place of delivery; or
c) notify the debtor of the assignment of the pledged property right and indicate the assignee.
(2) If the term for the performance of the patrimonial obligation has not been determined nor does it result from its nature, the pledgor must perform the obligation within 7 days from the moment of the pledgor’s request, if immediate performance does not result from the law, the contract or the nature of the obligation.
(3) Upon receipt by the debtor of the notice referred to in paragraph (1):
a) the debtor must pay the monetary claim or perform other patrimonial obligations only according to the instructions of the pledgee, under penalty of paying damages;
b) any modification of the conditions of the patrimonial obligation made without the consent of the pledgee is null and void;
c) any action of the pledgor in the exercise, including forced, of his rights with respect to the patrimonial obligation, made without the consent of the pledgor, is null and void.
(4) The pledgee shall direct the proceeds obtained from the enforcement of the pledged monetary claim to the satisfaction of the secured obligation.
(5) The property received by the pledgee from the debtor of the patrimonial obligation in the performance of his obligations shall be considered encumbered with a pledge and the pledgee may exercise the right of pledge over them in accordance with the provisions of this section. In this case, the priority rank of the pledge over the property received by the pledgee shall be determined by the moment of the appearance of the pledge over the pledged patrimonial right.
(6) The pledgee may request the forced performance of the patrimonial obligation by applying to the court. The pledgee and the pledgee who initiated the forced performance against the debtor of the patrimonial obligation have a mutual obligation to enter into litigation.
(7) The pledgee has the right to exercise the pledge over the secured patrimonial rights and in relation to the debtor of the personal or real guarantee that ensures the payment or other performance of the patrimonial obligations, unless the pledge contract provides otherwise.
Subsection 2
Measures prior to exercising the right of pledge
§1. Enforcement notice
Article 752. Enforcement notice
(1) The pledgee who intends to exercise the right of pledge must notify this fact by sending a notice of performance to the pledgee and, as the case may be, to the debtor of the secured obligation, the third party who holds the pledged property, the debtor of the pledged patrimonial obligation, other pledgees and other creditors who have notified the pledgee of their rights over the pledged property or have registered them in the register of guarantees or, in the case of a mortgage, in the register of immovable property.
(2) The enforcement notice must be sent to the domicile or headquarters of the pledgor and, where applicable, of the debtor or to another address indicated in the register of guarantees or, as the case may be, in the register of immovable property, by registered letter with acknowledgment of receipt. The enforcement notice may also be sent by other means of communication, established in the pledge agreement, which allow confirmation of the sending and receipt of the notice. The provisions of art. 714 para. (2) remain applicable.
(3) The enforcement notice shall be deemed to have been received on the date of delivery of the registered letter with acknowledgement of receipt. The date of delivery of the registered letter with acknowledgement of receipt and the signature of the pledgor or other recipient pursuant to paragraph (1) shall be entered on the acknowledgement of receipt.
(4) If the pledgor or other recipient according to paragraph (1) refuses to receive the registered mail item arriving at his address, the postal employee shall request that the note “I refuse to receive” be made, confirmed by signing the receipt confirmation form. If the pledgor or other recipient according to paragraph (1) refuses to enter this note, the postal employee shall enter the note “Refused. The recipient refuses to make the note”, after which he shall sign and date it.
(5) The pledgor or other recipient according to paragraph (1) who refuses, under the conditions of paragraph (4), to receive the registered letter with acknowledgement of receipt containing the pledgee’s enforcement notice shall be deemed to have been notified from the date of refusal if the pledgee (sender) affixes the words “Notice of enforcement of the pledge” or, as the case may be, “Notice of enforcement of the mortgage” on the letter and on the form of the acknowledgement of receipt.
(6) If the pledgor or other recipient according to paragraph (1) is not at the communicated address or his/her whereabouts are unknown, and the pledgor has sent the enforcement notice according to paragraph (2) and it has been returned to him/her as a returned item, the pledgor shall publish in the Official Gazette of the Republic of Moldova the information regarding the term within which the pledgor or other recipient according to paragraph (1) may receive the enforcement notice from the pledgor, which shall not be less than 15 days from the date of publication.
(7) In the event of failure to appear by the pledgor or other recipient according to paragraph (1) within the term indicated in the information published in the Official Gazette of the Republic of Moldova, he shall be deemed notified from the date of expiry of the deadline for receiving the enforcement notice.
(8) If the pledgor or other recipient according to paragraph (1) appears within the term indicated in the information published in the Official Gazette of the Republic of Moldova, the pledgor shall send him, under signature, the enforcement notice provided for in paragraph (11) and from that moment the pledgor or other recipient according to paragraph (1) shall be considered notified.
(9) After notification, the pledgee holding a registered pledge without dispossession shall file a copy of the enforcement notice in the register of guarantees or, in the case of a mortgage, shall record the enforcement notice in the register of immovable property.
(10) The registrar of the register of guarantees or, in the case of a mortgage, the mortgage registrar must verify the proof of receipt of the enforcement notice by the pledgor and the other recipients according to paragraph (1), as well as the proof of compliance with the conditions set out in paragraphs (5) and (7) by which the pledgor or other recipient according to paragraph (1) is deemed to have been notified. The registrar shall immediately register the enforcement notice in the register of guarantees or, as the case may be, in the register of immovable property.
(11) The enforcement notice will contain:
a) the amount due of the secured obligation, including interest, penalties and other costs or expenses that must be paid to avoid continuing the procedure for exercising the right of pledge, or other actions that must be taken by the debtor in order to eliminate the omission of proper performance of its obligations;
b) description of the pledged property that are the subject of the pursuit;
c) the mention regarding the initiation of the exercise of the pledge right and the right of the pledgor debtor or other interested persons to oppose the prosecution, in the manner provided for in art. 753;
d) the summons to execute the secured obligation or to transmit the pledged tangible property into the possession of the pledgee and the deadline for transmission; and
e) the signature of the pledgee.
(12) The term granted by the pledgee for the performance of the secured obligation or the transfer of the pledged tangible property into the possession of the pledgee shall not be less than 10 days, and in the case of a mortgage it shall not be less than 20 days, starting from the date of receipt of the enforcement notice or, as the case may be, from the date on which the pledgee is deemed to have been notified, unless a longer term has been agreed in the pledge agreement. Until the expiry of this term, the pledgee may not continue to exercise the pledge right over the tangible property, but may take the protective measures provided for in art. 754 para. (1).
Article 753. Rights of the pledgor
(1) The pledgee may oppose the pursuit of the pledged property by the pledgee, by paying the secured claim or, as the case may be, by eliminating the violations mentioned in the enforcement notice and subsequent ones, paying in both cases the expenses related to the sending and registration of the enforcement notice.
(2) The right referred to in paragraph (1) may be exercised by the pledgee until the moment of sale of the property taken into possession by the pledgee.
(3) The pledgee who has filed an enforcement notice may not request any other compensation than the payments provided for in art. 688 paragraph (3) and the expenses related to the registration of the enforcement notice.
(4) The pledgor who has performed the obligations provided for in paragraph (1) shall subrogate the pledgor in his rights vis-à-vis the debtor of the secured obligation. The pledgor shall transmit to the pledgor the legal document from which the secured obligation results and, in the case of a pledge without dispossession, the pledge contract and confirmation of the establishment of the pledge, within 3 days of the performance of the obligations or within another term accepted by the pledgor.
(5) Partial performance by the pledgor of the obligations provided for in paragraph (1) is permitted only with the consent of the pledgor. In this case, the pledgor shall subrogate the pledgor only in the performed part of the secured obligation. The pledgor shall send him certified copies of the juridical act from which the secured obligation results and, in the case of a pledge without dispossession, of the pledge agreement and of the confirmation of the establishment of the pledge.
§2. Transfer of the pledged property
Article 754. Manner of transmission of the pledged property
to the pledgee
(1) The pledgee who has sent the enforcement notice in accordance with the provisions of art. 752 paragraph (1) is entitled to:
a) to take possession of the pledged tangible property, according to art. 755;
b) to take any other protective measures agreed with the pledgor in the pledge agreement or otherwise or ordered by the court, at the request of the pledgor.
(2) The transfer of the pledged property into possession of the pledgee may be voluntary or forced.
(3) The pledgee who has obtained the transfer of possession of the pledged property may only conclude juridical acts of administration in respect of the pledged property until the time of sale. The pledgee may also cover debts related to public utility services or other debts of the pledgee arising directly in connection with the pledged property. The amounts paid by the pledgee for these purposes shall be recovered from the means obtained by the pledgee in the order established in art. 769.
Article 755. Voluntary transfer of possession
(1) The pledgee may take possession of the pledged tangible property if:
a) the pledgor has consented, in the pledge agreement or otherwise, to the pledgor’s voluntary entry into possession of the property; and
b) the pledgee has sent the notice of enforcement of the pledge to the persons indicated in art. 752 paragraph (1) and has registered the notice of enforcement in accordance with art. 752 paragraph (9).
(2) If the pledged property is accessory to an immovable property, the pledgee may separate it from the immovable property if the pledgor has expressed his consent in writing.
(3) The deed of transfer of possession of the pledged tangible property shall contain the list of the goods transferred and shall be signed by the pledgor and the pledgor. If the pledgor is not present when the pledgor takes possession of the goods or refuses to sign the deed of transfer, the pledgor is obliged to send the pledgor, at the address indicated in the register of guarantees, a copy of the deed of transfer.
Article 756. Voluntary transfer of possession
in the case of mortgage
The voluntary transfer of possession of the mortgaged property shall be made on the basis of an agreement on the voluntary transfer of possession of the mortgaged property, concluded in authentic form between the mortgagee and the mortgagor, at any time agreed upon by the parties. The provisions of art. 755 shall not apply to the voluntary transfer of possession of the mortgaged property.
Article 757. Forced transfer into possession
(1) The pledgee who cannot take possession of the pledged tangible property under art. 755 or, in the case of a mortgage, under art. 756 has the right to obtain possession of the property:
a) on the basis of a court order or decision, in accordance with the provisions of the Code of Civil Procedure and the Code of Enforcement. Only the circumstances provided for in art. 761 para. (2) lett. a)-e) constitute reasoned objections that the pledgor may submit against the court order; or
b) without resorting to judicial procedure, through a bailiff, according to the provisions of this chapter and of the Enforcement Code.
(2) The pledgee is not entitled to proceed with the forced transfer of possession until the expiry of the term provided for in art. 752 paragraph (12) unless the pledged property is susceptible to loss or destruction or is perishable.
(3) The pledgee may choose to obtain possession of the property without resorting to judicial proceedings if:
a) the pledgor has consented, in the pledge agreement or otherwise, to the obtaining of possession of the property by the pledgee without recourse to judicial proceedings or, in the case of a mortgage, if the mortgage agreement has been made enforceable in accordance with art. 759; and
b) the pledgee has sent the notice of enforcement of the pledge to the persons indicated in art. 752 paragraph (1) and has registered the notice of enforcement in accordance with art. 752 paragraph (9).
(4) By way of derogation from the provisions of the Enforcement Code, the following rules shall apply to the forced transfer of pledged tangible property into the possession of the pledgee:
a) the pledgee presents to the bailiff the original pledge contract, the notice of performance of the pledge registered in the register of guarantees and the list of pledged property, which are to be collected, and the bailiff retains copies thereof and certifies their correspondence with the original;
b) within 48 hours of receiving all the documents referred to in letter a), unless the pledgee consents to a longer period, the bailiff shall initiate the enforcement procedure after consulting the register of guarantees regarding the registration of the notice of enforcement of the pledge and shall go to the place indicated by the pledgee, collect the pledged property and hand it over to the pledgee or the person designated by him. The bailiff may request the assistance of the bodies indicated in art. 22 para. (1) letter u) of the Enforcement Code;
c) upon delivery of the pledged property, the bailiff draws up a report and sends a copy of it to the pledgee and the pledgor.
(5) If the pledgee is unable to indicate the location of the pledged property, the pledgee, at the request of the bailiff, is obliged to immediately indicate the location of the property.
(6) The pledgee advances the expenses related to the forced transfer into possession and assumes the risk of destruction or damage to the pledged property taken into possession.
(7) If the pledged property is an accessory to an immovable property, the pledgee may separate it from the immovable property, provided that the actual prejudice caused to the holder of the real right to the immovable property, other than the pledgee, is compensated. The pledgee is not obliged to compensate for any diminution in the value of the immovable property caused by the separation of the pledged property.
Article 758. Transmission of original property documents
(1) The act entitling the pledgee to the transfer of possession of the property gives the pledgee the right to take possession of the original documents confirming the pledgee’s right to the property.
(2) If the pledgor fails to fulfill his obligation to transmit to the pledgor the originals provided for in paragraph (1), the pledgor has the right to request and obtain a duplicate from any competent authority or person.
Article 759. Exercise of the right of mortgage
pursuant to the notarial deed vested
with executor formula
(1) If the mortgage secures the obligations resulting from the contract for the modification of the term of the obligations concluded with the public authority, the bank credit or loan contract granted by the non-bank credit organization, by the savings and loan association, by the leasing company or by a multilateral development bank within the meaning of Law No. 184/2016 on financial guarantee contracts, the mortgage contract may be made enforceable in accordance with the legislation on notarial acts if the parties have expressly agreed to this in the contract. In this case, the mortgage right may be exercised by force, and the mortgaged property shall be conveyed by force, on the basis of the mortgage contract made enforceable, without filing an application with the court to obtain an order or a court decision.
(2) The forced exercise of the mortgage right based on the mortgage contract vested with an enforceable formula shall be carried out in compliance with the provisions of this chapter and shall only refer to the transmission of the mortgaged immovable property into the possession of the mortgagee for the purpose of the latter exercising the mortgage right in accordance with the provisions of art. 764 paragraph (1), as well as to the eviction of the inhabitants in the exercise of the mortgage right in accordance with the provisions of art. 773.
(3) If the investment of the mortgage contract with an enforceable formula is annulled as a result of the subsequent contestation or if the decision of the bailiff to initiate the enforcement procedure is annulled in accordance with art. 761, the mortgagee is obliged to return the mortgaged property or to return the price at which the property was sold and to repair the damage caused.
(4) The cancellation of the mortgage contract with an enforceable formula does not prevent the creditor from exercising the mortgage right through the court in the manner provided for in art. 757.
Article 760. Rights of senior pledgees
superior to the transfer of possession
(1) In the notice sent to the lower-ranking pledgee in accordance with the provisions of art. 746 paragraph (8), the higher-ranking pledgee may request that he transfer possession of the property to him.
(2) The lower-ranking pledgee who has obtained possession of the property under the conditions of art. 755 or art. 757 and has received the request provided for in paragraph (1) of this article, is obliged to transfer the property into the possession of the higher-ranking pledgee upon expiry of the term indicated in art. 746 paragraph (8), under penalty of paying damages.
(3) If it has received requests to transfer possession of the property from several secured creditors of higher rank, the lower-ranking pledgee shall transfer, within the term indicated in paragraph (2), the property to the highest-ranking pledgee among them.
(4) The pledgee who has transferred possession of the property under the conditions of paragraph (2) or paragraph (3) shall inform the pledgee and other registered pledgees of this fact.
Article 761. Contesting forced performance
(1) The pledgor or any other person who has a legitimate interest may challenge in court the actions of the pledgor taken pursuant to art. 752 or art. 755 or the actions of the bailiff taken pursuant to art. 757 and, as the case may be, art. 759.
(2) The court is entitled to suspend or cancel the transfer of the property into the possession of the pledgee exclusively on the following grounds:
a) the secured obligation has been performed or otherwise extinguished;
b) the pledge contract was declared null and void by an irrevocable court decision;
c) the performance of the pledge contract was suspended by court order;
d) the pledgee did not send the enforcement notice to the pledgee or did not register it according to art. 752;
e) the pledgee has violated the rights of the higher-ranking pledgees provided for in art. 760.
(3) The pledgee is liable for the damage caused if the transfer into possession is declared illegal.
(4) The cancellation by the court of the transfer of possession does not prevent the pledgee from exercising the pledge right through ordinary (contentious) or simplified (in ordinance) court procedure.
Article 762. Transmission in case of possession
by one third of the pledged property
(1) The third party who owns the pledged property and who is not obliged to pay the secured claim is personally liable for the delay in the transmission and the effects of the delay in the transmission of the property within the term established by the court.
(2) If he has a priority claim based on his right to retain the pledged movable property, the third party is obliged to transfer it, but encumbered with his priority right.
(3) If the third party holder of the pledged property has received the property as payment for his claim, priority and/or secured, prior to the one mentioned in the enforcement notice, or if he has paid the prior priority and/or secured claims, he may request that the pledgee sell the property himself or under the supervision of the court. The third party is not obliged to transfer the property, however, if the pledgee does not provide him with guarantees, personal or real, that the sale of the property will be made at a price sufficient to fully cover his prior priority and/or secured claims.
Article 763. Revival of unexpired real rights
The real rights that the pledgor had over the property at the time of its acquisition or that he extinguished during his possession are reborn after the transmission if they have not been erased.
Subsection 3
Sale of the pledged property by the pledgee
Article 764. Conditions for the sale of property by
the pledgee
(1) After obtaining possession of the pledged property, the pledgee is entitled, if he has filed or registered in the register a notice of enforcement in the manner provided for in art. 752 paragraph (9), to proceed with the sale of the pledged property by direct negotiations, by tender or by public auction. In the case of the sale of the mortgaged property as a result of the forced exercise of the mortgage right on the basis of the notarial deed vested with an enforceable formula, the mortgagee or, as the case may be, the bailiff shall apply, as a method of sale, the public auction, unless there is a written agreement of the mortgagor, issued to the mortgagee after the emergence of his right to exercise the mortgage right, to sell the property in another manner provided for by the provisions of this paragraph.
(2) The pledgee must sell the pledged property without undue delay, at a reasonable commercial price on the date of sale in accordance with the provisions of art. 765 paragraph (1) and taking into account the interests of the pledgee, being free to establish the conditions of sale.
(3) If there are several property, the pledgee may sell them together or separately.
(4) The pledgee who sells the property acts on behalf of the owner and is obliged to inform the buyer about its quality at the time of sale.
(5) In the case of a tender sale of the pledged property, the creditor shall make public the tender notice through the media or by invitations. The tender notice must contain sufficient information to allow the interested person to submit an offer within the time limit and at the place announced.
(6) The pledgee is obliged to accept the highest offer, unless the conditions attached to the offer make it less advantageous than a lower offer or the price offered is not commercially reasonable.
(7) The sale by the pledgee of the pledged property by public auction shall be made on the date, time and place set out in the notice of sale, brought to the attention of the pledgee, the third party holding the property and, where appropriate, the trustee, notified to all pledgees who have filed or registered an enforcement notice in the respective register. The pledgee must also inform any interested person who has made a request.
(8) In the case of a mortgage, the mortgagee has the right to transfer ownership of the mortgaged property, acting on behalf of the mortgagee, based on the following documents:
a) in the case of voluntary exercise – the agreement, notarized, regarding the voluntary transfer of possession of the mortgaged property;
b) in the case of forced exercise – the court order or, respectively, the final court decision;
c) in the case of forced exercise based on the mortgage contract vested with an enforceable formula – the original of the mortgage contract vested with an enforceable formula, which contains the clause regarding the mortgagee’s right to exercise the mortgage right based on the enforceable formula applied by the notary, the copy of the bank credit or loan agreement, which certifies that the claim has become due, accompanied by the financial records, which certifies the debtor’s debts on the date of expiry of the term indicated in the enforcement notice, copies of the enforcement notice sent to the debtor’s address and proof of his registration in the real estate register, according to the requirements set out in art. 752, as well as the creditor’s affidavit that there is no legal dispute in relation to the mortgage contract vested with an enforceable formula whose enforcement is requested and that the claim is due.
(9) The pledgor and the pledgor may agree, in the pledge agreement or otherwise, on the conditions for the sale of the pledged property.
Article 765. Commercially reasonable sale
(1) The sale of goods is commercially reasonable if it takes place in accordance with the rules provided for in the pledge agreement or, if no such rules have been provided for, as the case may be:
a) as goods of the same kind are usually disposed of on an organized market;
b) at the price established on an organized market and valid at the time of sale;
c) in accordance with reasonable commercial practices followed by those who customarily sell goods of the same kind.
(2) Under the conditions set out in paragraph (1), the mere fact that a higher price could have been obtained if the sale had taken place at a different time or by a method other than that chosen by the creditor does not mean that the sale is not considered commercially reasonable.
Article 766. The right to compensation for damage
in case of sale
If the pledgee has not complied with the provisions of Articles 764 and 765 when selling the pledged property, the pledgee has the right to demand compensation for the damage caused from the pledgee who sold the pledged property, but cannot demand the cancellation of the sale.
Article 767. Opposition to the conditions of sale
(1) At its option, the pledgee exercising the right of pledge may notify the pledgee, in accordance with the rules on the notification of the enforcement notice, of the planned conditions of sale of the pledged property. Within 15 days of the communication of the planned conditions of sale, the pledgee may file an objection to the conditions of sale in the competent court.
(2) The opposition shall suspend the sale procedure by operation of law until the final resolution of the case.
(3) The court shall resolve the objection within 5 days. The court’s decision may only be appealed within 5 days of notification. If the objection is rejected, the appeal shall not prevent the creditor from proceeding with the sale of the property. The appeal shall be resolved urgently.
(4) If it admits the opposition, finding that the planned conditions of sale do not comply with the provisions of articles 764 and 765, the court shall establish the appropriate conditions of sale and approve the sale of the property.
(5) If the court has rejected the opposition, the pledgee may proceed with the sale under the planned conditions of the sale.
(6) If the pledgee has sold the property under the conditions provided for in paragraph (4) or, as the case may be, paragraph (5) of this article, the pledgee may not request compensation for the damage on the grounds provided for in article 766.
(7) If the pledgee has sold the property at a price lower than that determined in accordance with paragraph (4) or, as the case may be, paragraph (5) of this article, the pledgee may request compensation for the damage on the grounds provided for in art. 766.
Article 768. The right of other pledgees to redress
damage in case of sale
Pledgees, other than the pledgee who sells the pledged property, have the right to compensation for damage and the right to object under the conditions of articles 766 and 767, which shall apply accordingly.
Article 769. Proceeds from the sale of the pledged property
(1) After deducting the documentary confirmed expenses incurred in connection with the taking over, transportation, storage and sale of the pledged property, the pledgee shall distribute the proceeds of the sale of the property to the pledgees and other creditors indicated in art. 752 paragraph (1) according to the order of priority.
(2) The costs of sending the enforcement notice, of its registration, as well as other costs of exercising the right of pledge shall be borne by the pledgor and shall be deducted in accordance with paragraph (1), except in cases where the ordinance or court decision, as the case may be, provides otherwise regarding court costs or the pledgor and the pledgor agree otherwise.
(3) The remaining available amount shall be transferred to the pledgor or, when payment is not possible, shall be recorded in accordance with the provisions of art. 968, within 3 days of the completion of the distribution pursuant to paragraph (1) of this article. Within the same period, the pledgor shall send the pledgor a report on the distribution of the proceeds of the sale of the pledged property.
(4) If the proceeds from the sale of the property were not sufficient to pay its claims and expenses, the pledgee retains a non-privileged claim for the difference owed by its debtor.
(5) The provisions of this article shall also apply accordingly to the exercise of the pledge by way of leasing the pledged property pursuant to art. 744 paragraph (2) letter c) or by granting a license for consideration to third parties over the intellectual property object protected pursuant to art. 744 paragraph (2) letter d).
Article 770. Property acquired from the pledgee
(1) Sale of pledged property by the pledgee:
a) transfers to the buyer all the rights of the pledgor over the pledged property;
b) extinguishes the pledge of the pledgor and other pledges, except for the pledge of higher rank, in the cases provided for in art. 746 para. (4); and
c) extinguishes seizures and prohibitions on the property, except for those applied by the courts in disputes not related to the exercise of the right of pledge.
(2) The buyer becomes the owner of the purchased goods after full payment of the purchase price, unless otherwise agreed with the pledgee and other creditors indicated in art. 752 paragraph (1) whose rights may be prejudiced by the postponement or installment of payment.
(3) Within 3 days after becoming the owner of the property under the conditions of paragraph (2) of this article, the buyer shall propose to the higher-ranking pledgee whose pledge has not been extinguished that the substitution of the pledgee be registered, in the manner provided for in art. 716, under penalty of payment of damages.
(4) After becoming the owner of the property under the conditions of paragraph (2), the buyer may request the court to cancel the seizures and prohibitions on the purchased property applied by the courts.
Article 771. Cancellation of encumbrances
The buyer requests the deletion from the register of guarantees or, as the case may be, from the register of real estate of the pledges, seizures and prohibitions extinguished in accordance with the provisions of art. 770 paragraph (1), based on the confirmation of sale issued by the pledgee.
Article 772. Acquisition of pledged property
by the pledgee
(1) The pledgee may purchase the pledged property if:
a) the pledgee has consented in writing to the acquisition after receiving the enforcement notice; and
b) other persons indicated in art. 752 paragraph (1) do not object.
(2) The intention of the pledgee to acquire the pledged property may be expressed in the enforcement notice or in a subsequent notice sent to the pledgee and other persons indicated in art. 752 para. (1). The notice shall indicate the amount due of the secured obligation and the part thereof which is proposed to be extinguished by acquiring the pledged property.
(3) The opposition to the acquisition of the pledged property produces legal effects only if it is brought to the attention of the pledgee within 15 days of receiving the notice provided for in paragraph (2).
(4) The pledgee who purchased the pledged property shall pay the amount of the purchase price upon the extinguishment of the secured obligation.
(5) Acquisition by the pledgee of the pledged property:
a) transfers to the pledgee all the rights of the pledgee over the pledged property;
b) extinguish any other pledges, except for pledges of higher rank, in the cases provided for in art. 746 paragraph (4); and
c) extinguishes seizures and prohibitions on the property, except for those applied by the courts in disputes not related to the exercise of the right of pledge.
(6) Upon the acquisition by the pledgee of the pledged property, the provisions of art. 770 para. (3) and (4) shall apply accordingly.
Article 773. Evacuation of residents during the exercise
mortgage right
(1) If he does not hold a right of lease opposable to the pledgee within the meaning of art. 743, the mortgagee, as well as the other persons residing in the mortgaged property, are obliged to release the mortgaged property on the date of entry into force of the agreement on voluntary transfer of possession, signed between the mortgagee and the mortgagee, unless the parties have established another term, or at the time of the finality of the court order or, as the case may be, of the court decision – in the case of the forced exercise of the mortgage right, or on the date indicated in the enforcement notice – in the case of the exercise of the mortgage right under the mortgage contract vested with an enforceable formula.
(2) If the persons referred to in paragraph (1) of this article refuse to release the mortgaged property or if they have not released it upon expiry of the 15-day period from the date established in paragraph (1) of this article, the bailiff shall initiate the forced eviction in accordance with the Enforcement Code and taking into account the provisions of art. 743.
BOOK THREE OBLIGATIONS
Title I
ABOUT OBLIGATIONS IN GENERAL
Chapter I
COMMON PROVISIONS ON OBLIGATIONS
Article 774. General provisions regarding the obligation
(1) By virtue of the obligation relationship, the creditor is entitled to demand from the debtor the performance of a service, and the debtor is obliged to perform it. The service may consist of giving, doing or not doing.
(2) The obligation may be pure and simple or affected by modalities.
(3) The benefit must be possible and determined or determinable, and must not be contrary to the law, public order and good morals.
Article 775. Good faith in contractual relations
(1) The debtor and the creditor must behave in good faith at the time of the birth, during the existence, at the time of the performance and the extinguishment of the obligation.
(2) The clause derogating from the provisions of paragraph (1) is null and void.
Article 776. Grounds for the emergence of obligations
Obligations arise from contract, tort (delict) and from any other act or fact likely to produce them under the law.
Article 777. Right to information
(1) The contractual relationship may give rise to a right to information without it being expressly stipulated. The provision of information also implies the obligation to release the corresponding documents.
(2) The right to information arises in particular when the information is significant for determining the content of the obligation and can be provided by the person to whom it is requested without thereby affecting his rights.
(3) The person requesting the information must compensate the expenses incurred by the person obliged to provide the information. The latter may claim insurance benefits.
Article 778. Natural obligation
(1) An obligation is natural in respect of which forced performance cannot be requested.
(2) There is a natural obligation if:
a) the law or juridical act excludes the possibility of forced performance;
b) a person has a moral obligation towards another person of such a nature that its performance, although it cannot be demanded by force, must, in common opinion, be considered as the performance of a benefit owed to another person.
(3) Natural obligations are regulated by the rules on obligations unless it follows from the letter or spirit of the law that certain rules are not applicable to obligations for which forced performance cannot be requested.
(4) The natural obligation is transformed into a perfect civil obligation based on the agreement between the debtor and the creditor.
Article 779. Correlative obligations
(1) The obligation of a person is correlative to the obligation incumbent on another person in one of the following situations:
a) the performance of the obligation is made in exchange for the performance of the other obligation;
b) it consists of an obligation to contribute to or accept the performance of the other obligation;
c) the obligation is so clearly linked to the other obligation or its subject matter that the performance of one obligation can reasonably be regarded as dependent on the performance of the other obligation.
(2) Correlative obligations may arise from contracts (synalagmatic contracts), as well as from other grounds for the emergence of obligations.
Article 780. Obligation of result and obligation of means
(1) The debtor of an obligation of result is bound to achieve the promised result.
(2) The debtor of an obligation of means is required to demonstrate, in the performance of his performance, the prudence and diligence of a reasonable person of the same quality, placed in the same circumstances.
(3) In determining whether the obligation is one of means or of result, the following shall be taken into account, among others:
a) the way in which the obligation is expressed in the contract;
b) the price and other clauses of the contract;
c) the degree of risk that normally involves achieving the expected result;
d) the ability of the other party to influence the performance of the obligation.
Chapter II
THE PLURALITY OF SUBJECTS AND OBJECTS
WITHIN THE FRAMEWORK OF AN OBLIGATION
Section 1
Divisible and indivisible obligations
Article 781. Divisible obligation with plurality of debtors
(1) The obligation is divisible between several debtors if they are obligated to perform the same service towards the creditor, but each debtor may be pursued separately up to the concurrence of his share of the debt.
(2) The debtors are liable in equal shares unless otherwise provided by law, contract or the nature of the obligation.
Article 782. Divisible obligation with plurality of creditors
(1) The obligation is divisible among several creditors if they are entitled to the same performance from the debtor, but each creditor may claim only his share of the claim.
(2) Creditors are entitled to equal shares unless otherwise provided by law, contract or the nature of the obligation.
Article 783. Presumption of divisibility
The obligation is divisible by law unless it is expressly stipulated that it is indivisible or unless the object of the obligation is indivisible by its nature.
Article 784. Effect of indivisibility
(1) The obligation is indivisible between several debtors if they are obliged to perform the same service together, and the creditor may claim the service only from all of them together.
(2) The claim is indivisible between several creditors if each creditor can claim the performance of the service only for the benefit of all creditors, and the debtor must perform the service for the benefit of all creditors.
(3) The indivisible obligation cannot be divided either between debtors or creditors, or between their successors.
(4) The obligation does not become indivisible merely because the contract stipulates that it is joint and several.
(5) A divisible obligation that has only one creditor and one debtor must be performed between them as an indivisible obligation, remaining divisible between their heirs.
Article 785. Difficulties in enforcement in the case of a claim
indivisible
If one of the indivisible creditors refuses to accept or cannot accept the performance of the service, the debtor may be released from the obligation by recording.
Section 2
Creditor solidarity
Article 786. Joint and several claims
If two or more creditors have the right to claim a benefit in such a way that each can claim the entire benefit, and the benefit made to one of the creditors releases the debtor, then their claim is joint and several.
Article 787. Grounds for the emergence of joint and several claims
The joint and several claim is not presumed, but arises through a juridical act or by law.
Article 788. Performance of the obligation towards any person
among creditors
The debtor may perform the obligation towards any of the creditors as he sees fit, as long as none of the creditors has requested the performance of the obligation.
Article 789. Effects of the performance of the obligation towards
by one of the creditors
The full performance of the obligation towards one of the solidary creditors exempts the debtor from the performance of the obligation towards the other creditors.
Article 790. Confusion in the case of joint and several claims
(1) If one of the solidary creditors also acquires the status of debtor, the confusion does not extinguish the solidary claim except in proportion to the part of the claim that falls to that creditor.
(2) The other solidary creditors retain their right of recourse against the creditor in whose person the confusion occurred, in proportion to the share of the claim that each of them has.
Article 791. Debt remission by a creditor
united
A debt remission agreed between a creditor jointly and severally with the debtor shall only have effect on the part due to that creditor. This rule shall also apply in all cases where the obligation is extinguished on grounds other than performance.
Article 792. Inadmissibility of invoking exceptions
that belong to another creditor
The debtor does not have the right to raise against one of the solidary creditors exceptions based on the debtor’s relations with another solidary creditor, in which the respective creditor does not participate.
Article 793. Obligation towards other solidary creditors
of the creditor who received the benefit
(1) The joint and several creditor who has received the entire benefit is obliged to share it with the other co-creditors unless he proves that the obligation is contracted solely in his interest.
(2) Joint and several creditors are entitled, in the relations between them, to equal shares unless otherwise agreed.
Article 794. Representation of solidary creditors
(1) The joint and several creditor represents all co-creditors in all acts aimed at preserving the obligation.
(2) Any acts by which one of the solidary creditors would consent to the reduction or removal of the rights, accessories or benefits of the claim or would prejudice in any other way the interests of the other creditors are unenforceable against the latter.
(3) The court decision obtained by one of the creditors against the joint debtor also benefits the other creditors.
(4) The court decision rendered in favor of the joint debtor cannot be invoked against creditors who were not parties to the lawsuit.
Article 795. Suspension and interruption of prescription
for the benefit of the joint and several creditor
(1) The suspension of the prescription in favor of one of the solidary creditors may also be invoked by the other solidary creditors.
(2) The interruption of the limitation period with respect to one of the joint and several creditors benefits all the joint and several creditors.
Section 3
Debtors’ solidarity
Article 796. Joint and several obligations
If two or more debtors owe a performance in such a way that each is obliged to perform the entire performance, and the creditor can claim performance from each of the debtors, then the debtors are jointly and severally liable.
Article 797. Grounds for the emergence of joint and several obligations
(1) A joint and several obligation is not presumed, but arises by juridical act or by law.
(2) When compensation is claimed for the non-performance of an indivisible obligation, the debtors are held jointly and severally liable for payment in favor of the creditor.
Article 798. Joint and several obligations affected by the modalities
Joint and several debtors can obligate themselves in different ways: some purely, others conditionally, others with a term.
Article 799. The creditor’s right to request enforcement
obligation from any of the debtors
solidary
The creditor may demand the performance of the obligation, at his discretion, from any of the debtors, in part or in full. Until the entire performance is performed, all debtors remain obligated.
Article 800. Exceptions raised against the creditor by
joint and several debtor
The joint and several debtor who was required to perform the service has the right to oppose to the creditor all the exceptions that are personal to him or are common to all the joint and several debtors.
Article 801. The obligation of joint and several debtors to repair
injury
(1) If the property owed has perished due to the fault of one or more solidary debtors, the other debtors are not released from the obligation to pay the price of the property, but they are not liable for other damages.
(2) Only debtors who are in default are obliged to repair the damage caused by delay.
Article 802. Effects of performance or compensation
joint and several obligation
The performance of the obligation by one of the solidary debtors also has effects towards the other solidary debtors. Likewise, the offsetting of the creditor’s claim by a debtor produces effects towards the other debtors.
Article 803. Confusion in the case of joint and several liability
If the same person meets the status of creditor with that of a solidary debtor, the debt of the other debtors is reduced by the share of the debt of that solidary debtor.
Article 804. Effects of receiving a partial benefit
(1) The creditor who receives separately the part of the performance of one of the debtors without reserving his solidarity or his rights in general in the receipt does not waive solidarity except with respect to this debtor.
(2) The creditor shall not be presumed to have waived his solidarity in favor of a debtor when he receives from him an amount equal to the share he owes him, unless the receipt stipulates that this share is received for the share of this debtor.
Article 805. Inadmissibility of invoking exceptions
towards joint and several debtors
Acts that occur only with respect to a joint and several debtor have effect only with respect to him unless the content of the obligation indicates otherwise.
Article 806. Renunciation of solidarity towards one
from debtors
The creditor who has waived solidarity against one of the debtors maintains the solidary action against the other debtors, deducting the share of the debtor whom he released from solidarity.
Article 807. Remission of a joint and several debtor
or transaction with him
(1) If the creditor remits a debt or concludes a transaction with a joint and several debtor, the other debtors are released to the extent of that debtor’s share.
(2) If the joint and several obligation of the co-debtors arose in connection with the causing of damage, the release obtained under paragraph (1) shall extend only to the extent necessary to prevent the creditor from receiving more than full compensation, and the other debtors shall retain their rights of recourse against the debtor who has been remitted or has transacted to the extent of the unexecuted part of that debtor.
Article 808. Pursuit of a joint and several debtor
(1) If the creditor brings an action against one of the joint and several debtors for his share, the waiver of solidarity in favor of that debtor is not presumed if that debtor has not recognized the action or if a final judgment has not been rendered admitting the action.
(2) The summoning of a joint and several debtor does not exclude the creditor’s right to summon the other joint and several debtors.
(3) The pursued debtor may request the inclusion of the other co-debtors in the case.
Article 809. Effects of the creditor’s delay or
joint and several debtor
(1) The creditor’s delay towards one of the solidary debtors also has effects towards the other solidary debtors.
(2) The delay of one of the joint and several debtors has no effect on the other joint and several debtors.
Article 810. Obligations of successors of solidary debtors
If one of the solidary debtors has several successors, they are obliged to perform the performance in proportion to their share of the inheritance. This rule does not apply if the obligation is indivisible.
Article 811. Recourse action in case of satisfaction
obligation by one of the debtors
united
(1) The joint and several debtor who has satisfied the obligation has the right to bring a recourse action against the other joint and several debtors for their shares of the obligation, together with their shares of the reasonable expenses incurred.
(2) In the event of impossibility of determining the share of the obligation of the solidary debtors, they shall be obligated to each other in equal shares.
(3) The joint and several debtor who has satisfied the obligation shall also be entitled, with priority to the creditor’s previously arising rights or interests, to exercise the creditor’s rights and actions, including any security rights accompanying them, to the extent necessary to recover the shares of the obligation of the other joint and several debtors.
Article 812. Benefits of the joint and several debtor
If one of the solidary debtors has realized a benefit from a solidary obligation, the solidary co-debtor who has not realized a benefit may, if he performs the obligation, demand the return of what he paid without deducting his share of the obligation.
Article 813. Effects of one’s inability to pay
among the joint and several debtors
If one of the joint and several debtors cannot be obtained, due to his inability to pay, the part of the performance that is due to him, that part must be borne in equal parts by the other debtors, including the one against whom the creditor has waived solidarity, unless the law or the contract provides otherwise.
Article 814. Exceptions against the co-debtor
The joint and several debtor pursued by the co-debtor who performed the obligation may oppose to him the common exceptions that the co-debtor who performed the obligation did not oppose to the creditor.
Article 815. Suspension, interruption or expiration
prescription against a joint and several debtor
The suspension, interruption or expiration of the limitation period against a joint and several debtor has no effect on his co-debtors.
Article 816. Representation of joint and several debtors
(1) The joint and several debtor represents his co-debtors in all acts aimed at extinguishing or reducing the obligation.
(2) The court decision pronounced against one of the joint and several co-debtors does not have the authority of res judicata against the other co-debtors.
(3) The court decision rendered in favor of one of the joint and several co-debtors also benefits the others, except in the case where it was based on a ground that could only be invoked by that co-debtor.
Section 4
Alternative obligations and optional obligations
Article 817. The obligation of alternatives
The obligation is alternative if it has as its object two or more main benefits, the performance of one of which fully releases the debtor.
Article 818. Right to choose the benefit
(1) The right to choose the performance belongs to the debtor if it has not been expressly assigned to the creditor.
(2) If the party to whom the right to choose the benefit belongs has not made the choice within the additional period granted for this purpose, the right to choose the benefit shall belong to the other party.
(3) The choice is made by declaration to the other party or by the actual performance of the performance. The chosen performance is considered to be due from the very beginning.
Article 819. Prohibition of partial benefits
The debtor is not entitled to and cannot be obliged to perform part of one performance and part of another.
Article 820. Effect of impossibility of performing certain actions
benefits if the choice
belongs to the debtor
(1) The debtor who has the right to choose the performance, if one of the performances cannot be performed, must perform the remaining performance.
(2) If, under the same circumstances, the performance of both services becomes impossible, and the impossibility of executing each is due to the fault of the debtor, the latter is required to compensate the creditor up to the value of the last remaining service.
Article 821. Effect of impossibility of performance of the service
if the choice belongs to
belongs to the creditor
(1) The creditor who has the right to choose the performance must, if the performance of one of the performances becomes impossible, accept the performance of the remaining performance, except in the case when the impossibility of performance is due to the fault of the debtor.
(2) If the impossibility of performing the performance is due to the fault of the debtor, the creditor has the right to request either the performance in kind of the remaining performance or compensation for the damage caused by the non-performance of the performance whose performance has become impossible.
(3) If the performance of both services becomes impossible, and the impossibility is due to the fault of the debtor, the creditor may demand compensation for the damage caused by the failure to perform one service or the other.
Article 822. Optional obligation
(1) The obligation is optional if it has as its object a single main performance from which the debtor can be released by performing another performance.
(2) The debtor is released if the performance of the main performance becomes impossible through no fault of the debtor.
Chapter III
TRANSFER OF THE CLAIM AND OBLIGATION
Section 1
Assignment of debt
Article 823. General provisions regarding assignment
of debt
(1) A transferable and enforceable claim may be assigned by the holder (assignor) to a third party (assignee) on the basis of a contract. From the moment of conclusion of such a contract, the assignor is substituted by the assignee in the rights arising from the claim, unless a later point in time results from the assignment contract.
(2) The assignment of the claim cannot prejudice the debtor’s rights nor make his obligation more onerous.
(3) The assignor is obliged to deliver to the assignee the documents related to the claim and to provide him with the information necessary for its realization.
(4) Claims regarding the collection of alimony and the repair of damage caused to the life and health of the person, as well as other rights related to the person of the creditor, are inalienable, under penalty of absolute nullity.
(5) The claim is inescapable, under penalty of absolute nullity, if, by virtue of the nature of the performance or the relationship between the debtor and the creditor, the debtor cannot reasonably be held to satisfy it except for the benefit of this creditor. This rule does not apply if the debtor has consented to the assignment.
Article 824. Form of assignment of receivables
The assignment of a claim must be concluded in the form required for the juridical act on the basis of which the assigned claim arose.
Article 825. Partial assignment
(1) The pecuniary claim may be assigned in part.
(2) Under penalty of absolute nullity, a non-pecuniary claim may not be assigned in part unless the obligation is divisible and the assignment does not make it substantially more onerous for the debtor. This rule does not apply if the debtor has consented to the assignment.
Article 826. Consent of the debtor
(1) The holder of a claim may transfer it to a third party without the debtor’s consent unless the law provides otherwise.
(2) The clause prohibiting or limiting the assignment of a claim does not affect its assignability.
(3) However, when the claim is assigned in breach of this clause, the debtor may discharge the obligation by performing in favour of the assignor. The debtor also retains the right to set off against the assignor, as if the claim had not been assigned.
(4) The provisions of paragraph (3) shall not apply:
a) if the debtor has given his consent to the assignment;
b) if the prohibition is not expressly mentioned in the document establishing the claim, and the assignee did not know and should not have reasonably known of the existence of the prohibition at the time of concluding the assignment contract; or
c) if the claim is pecuniary and arose in exchange for the supply of goods, the performance of works or the provision of services.
(5) The provisions of paragraph (2) do not limit the liability of the assignor towards the debtor for breach of the prohibition or limitation on assigning the claim. However, the debtor does not have the right to resort to the termination of the contract from which the assigned claim results on the basis of the breach of the clause provided for in paragraph (2).
Article 827. Volume of rights transferred to the transferee
(1) The receivables are transferred to the assignee as they exist at the time of transfer.
(2) Upon assignment of the claim, the guarantees and other ancillary rights shall pass to the assignee.
Article 828. Obligations assumed by the assignor
(1) The assignor has the obligations provided for in paragraphs (2)-(6) and (9) unless otherwise provided for in the assignment contract.
(2) The assignor guarantees that:
a) the assigned claim exists or, in the case of a future claim, will exist according to the contract from which it results;
b) the assignor is entitled to assign the claim or will be entitled to do so at the time when the assignment takes effect;
c) the debtor does not have any exceptions against the satisfaction of the claim;
d) the claim will not be affected by any right of set-off existing between the assignor and the debtor;
e) the claim has not been the subject of a previous assignment in favor of another assignee and is not the subject of a security right in favor of a third party.
(3) The assignor guarantees that the clauses of the contract or other juridical act, disclosed to the assignee as clauses governing the claim, have not been modified or otherwise affected by any undisclosed understanding that would be detrimental to the assignee.
(4) The assignor guarantees that the clauses of the contract or other juridical act from which the claim arises will not be modified without the consent of the assignee, except when the modification is provided for in the assignment contract or is made in good faith and is of such a nature that the assignee would not reasonably object.
(5) The assignor undertakes not to conclude a subsequent assignment contract regarding the same receivable that would lead to another person acquiring the receivable with priority over the assignee.
(6) The assignor undertakes to transfer to the assignee all transferable rights intended to secure the claim and which are not already transferred by virtue of the assignment, as well as to transfer the proceeds obtained from any non-transferable right intended to secure the claim.
(7) The assignor does not guarantee the current or future solvency of the debtor, except in cases where the assignor has guaranteed the debtor to the assignee.
(8) The provisions of paragraphs (1)-(7) shall apply accordingly with regard to ancillary rights and collateral of the claim.
(9) In the case of assignment of the claim resulting from a promissory note, the assignor is also responsible for the performance of the obligation by the debtor.
Article 829. Exceptions raised by the debtor against the assignee
(1) The debtor is entitled to raise against the assignee all the objections that he could raise against the assignor until the moment of communication of the assignment.
(2) However, the debtor is not entitled to raise an exception against the assignee if the debtor has led the assignee to believe that that exception does not exist.
Article 830. Effect of assignment on the place of performance
(1) In the case of the assignment of a pecuniary claim that must be satisfied at a specific place, the assignee may request that payment be made at any other place if it is made without cash, but must compensate the debtor for any additional costs that he incurs due to the change in the place of payment.
(2) In the case of the assignment of a non-pecuniary claim to be enforced at a specific place, the assignee may not request enforcement at another place.
Article 831. Enforceability of benefits
The assignee may be opposed to the services performed by the debtor, after the assignment, for the assignor, as well as any juridical act concluded after the assignment between the debtor and the assignor regarding the transferred claim if the debtor was not aware, at the time of the performance or the drawing up of the act, of the existence of the assignment.
Article 832. Priority in case of repeated assignment
(1) If a claim is assigned by the same holder more than once, the creditor of the obligation is the assignee whose assignment is notified first to the debtor.
(2) The subsequent assignee may invoke the provisions of paragraph (1) only if, at the date of conclusion of the assignment contract, he did not know and should not have reasonably known that the receivable had already been assigned.
(3) The debtor is released from the obligation by executing in favor of the first assignee who notifies him, regardless of whether the debtor knew or not about the repeated assignment.
Article 833. Debit document
The debtor who has drawn up a document on the debt may have the content of the document opposed by the assignee if, at the date of assignment of the claim, the latter did not know and should not have known that the document did not reflect reality.
Article 834. Notification of assignment and performance
for the benefit of the person who is not a creditor
(1) The debtor is released from the obligation by enforcement in favor of the assignor as long as the debtor has not received any notification regarding the assignment from either the assignor or the assignee and is not aware of the fact that the assignor is no longer entitled to obtain enforcement.
(2) Even if the person identified as the assignee in the assignment notification received from the assignor is not a creditor, the debtor is released from the obligation by performing in good faith in favor of that person.
(3) Even if the person identified as the assignee in the assignment notification received from a person claiming to be the assignee is not a creditor, the debtor is discharged from the obligation by enforcement in favor of that person if the creditor caused the debtor to believe reasonably and in good faith that the right was assigned to that person.
(4) The provisions of this article shall apply accordingly if the obligation has been extinguished by means other than performance.
Article 835. Adequate proof of assignment
(1) A debtor who believes on reasonable grounds that the right has been assigned but has not received a notification of the assignment may request the person who apparently assigned the right to provide him with such a notification of the assignment or a confirmation that the right has not been assigned or that the assignor is still entitled to obtain enforcement.
(2) The debtor who has received a notification of assignment that is not in textual form on a durable medium or that does not provide adequate information about the assigned right or the name and address of the assignee may request the person giving the notification to provide a new notification that would satisfy the respective requirements.
(3) The debtor who has received a notification of assignment from the assignee, but not from the assignor, may require the assignee to provide conclusive evidence of the assignment. Any statement in textual form on a durable medium emanating from the assignor indicating that the claim has been assigned shall be considered conclusive evidence, but is not limited to this.
(4) The debtor who has filed a request under this article may suspend enforcement until the request is satisfied.
Article 836. Enforceability of assignment against the surety
The assignment is not enforceable against the surety unless the formalities provided for the enforceability of the assignment against the debtor have also been fulfilled with respect to the surety himself.
Article 837. Competition between the assignee and the assignor
who received the benefit
If the debtor is discharged by performing the performance in accordance with art. 826 para. (3) or art. 834 para. (1), the right of the assignee against the assignor to have the performance delivered to him has priority over the right of a competing claimant as long as the performance is in the possession of the assignor and can be reasonably identified from his other property.
Article 838. Assignment of other rights
The rules regarding the assignment of receivables apply accordingly to the assignment of other rights.
Article 839. Transfer of claims otherwise than
by the will of the parties
The provisions of this section shall apply accordingly if a claim is transferred pursuant to law, a court decision or a decision of a public authority.
Section 2
Taking over the debt
Article 840. Ways of assuming debt
(1) A third party (the new debtor) may take over the debt or part of it in one of the following ways:
a) the original debtor is released from the debt (complete substitution by the new debtor);
b) the original debtor is maintained as debtor in the event that the new debtor does not properly perform his obligations (incomplete substitution by the new debtor);
c) the original and new debtors are jointly and severally liable (addition of the new debtor).
(2) If it is obvious that a new debtor has appeared, but the manner of taking over the debt is not clear, the original debtor and the new debtor are considered joint and several debtors.
Article 841. Form of debt assumption
The assumption of debt must be concluded in the form required for the juridical act on the basis of which the debt arose.
Article 842. Creditor’s consent
(1) The creditor’s consent is required for the substitution by the new debtor, regardless of whether a complete or incomplete substitution has taken place.
(2) The creditor’s consent to the substitution by the new debtor may also be given in advance. In this case, the substitution shall take effect from the moment the creditor has been notified by the new debtor of the contract between the new debtor and the original debtor.
(3) The consent of the creditor is not required in the case of the addition of a new debtor, but the creditor, by notification to the new debtor, may refuse the right conferred against the new debtor if this is done without undue delay after being informed of the right and before it has been expressly or implicitly accepted. In the event of refusal, the right shall be deemed never to have been conferred.
Article 843. Complete substitution
A third party may obligate itself by contract with the original creditor and debtor to completely substitute the debtor, with the effect that the original debtor is released from the obligation.
Article 844. Effects of complete substitution on
exceptions, compensation and rights
warranty
(1) The new debtor may raise against the creditor all the objections that the original debtor could have raised against the creditor.
(2) The new debtor may not set off against the creditor the set-off that the original debtor could have set off against the creditor.
(3) The new debtor may not oppose to the creditor any right or exception arising from the relationship between the new debtor and the original one.
(4) The release of the original debtor also extends to any personal or real guarantee granted by him to the creditor for the performance of the obligation, except in the case when the guarantee relates to the property that is transferred to the new debtor as the object of the contract between the original debtor and the new one.
(5) Upon the release of the original debtor, the guarantee offered by any person, other than the new debtor, for the performance of the obligation shall lapse if that person does not accept that the guarantee subsists for the benefit of the creditor.
Article 845. Incomplete substitution
A third party may agree with the creditor and the original debtor to partially substitute the debtor, with the effect that the original debtor is maintained as debtor in the event that the new debtor does not properly perform the obligation.
Article 846. Effects of incomplete substitution
(1) Incomplete substitution has the same effects on exceptions and compensation as complete substitution.
(2) To the extent that the original debtor is not discharged, the personal or real guarantee granted for the performance of that debtor’s obligations shall not be affected by the substitution.
(3) The liability of the initial debtor is governed by the legal provisions regarding the guarantor with the benefit of discussion to the extent that they do not contradict the provisions of paragraphs (1) and (2).
Article 847. Adding a new debtor
A third party may agree with the debtor to be added as a debtor, so that the original debtor and the new debtor are joint and several debtors.
Article 848. Effects of adding a new debtor
(1) Where, by virtue of a contract between the new debtor and the creditor or of a unilateral and separate juridical act concluded by the new debtor for the benefit of the creditor, the new debtor is added as a debtor, he may not assert against the creditor any right or exception arising from the relationship between the new debtor and the original debtor. Where no such contract or unilateral juridical act has been concluded, the new debtor may assert against the creditor any ground of nullity affecting the contract with the original debtor.
(2) The legal provisions regarding passive solidarity shall apply accordingly to the extent that they do not contradict the provisions of paragraph (1).
Section 3
Contract assignment
Article 849. Assignment of the contract
(1) A party to the contractual relationship may agree with a third party, with the consent of the other party to the contractual relationship, that the third party shall substitute it as a party to the contractual relationship.
(2) The consent of the other party may also be given in advance. In this case, the transfer shall take effect from the moment the other party is notified of this fact.
(3) To the extent that the third party acquires rights as a result of this substitution, the provisions of Section 1 shall apply. To the extent that the third party assumes obligations, the provisions of Section 2 shall apply.
Section 4
Transmission in case of insolvency
indirect representative
Article 850. Option of the indirect representative
to take over rights in the event of
insolvency of the representative
indirect
(1) The provisions of this article shall apply when the indirect representative has concluded a contract with a third party on the instructions and on behalf of the indirect representative, such that the representative, and not the representative, is a contracting party to that contract.
(2) If insolvency proceedings have been initiated against the representative, the represented party may notify the third party and the representative regarding the assumption of the representative’s rights under the contract in relation to the third party.
(3) The third party may raise against the principal any defences that he could have raised against the representative and all other defences that would be available if the rights had been assigned by contract by the representative to the principal.
Article 851. Third party counter-option
If the indirect representative has acquired the rights of the representative according to art. 850, the third party may notify the representative and the representative that he/she opts to exercise against the representative the rights that the third party has against the representative, subject to those exceptions that the representative has against the third party.
Section 5
Subrogation
Article 852. Types of subrogation
(1) The third party who pays in place of the debtor is subrogated to the rights of the creditor, in the form in which they existed on the date of subrogation.
(2) Subrogation may be conventional or legal.
(3) Conventional subrogation may be consented to by the debtor or the creditor. It must be express and, in order to be effective against third parties, must be established by a written document.
Article 853. Subrogation consented by the creditor
(1) Subrogation is consented to by the creditor when, upon receiving payment from a third party, he transfers to the third party, at the time of payment, all the rights he had against the debtor.
(2) Subrogation operates without the consent of the debtor. Any contrary stipulation is absolutely null and void.
Article 854. Subrogation consented by the debtor
(1) Subrogation is consented to by the debtor when he borrows to pay his debt and, in this way, transmits to the lender the rights of the creditor to whom he owed the respective debt.
(2) Subrogation occurs only if the loan deed, including credit, and the debt payment receipt have a certain date, the loan deed states that the amount was borrowed to pay the debt, and the receipt states that the payment was made with the money borrowed by the new creditor.
(3) Subrogation consented by the debtor takes place without the consent of the original creditor, in the absence of a contrary stipulation.
Article 855. Legal subrogation
Apart from other cases provided for by law, subrogation occurs by right:
a) for the benefit of the creditor, even unsecured, who pays to a creditor who has a preferential right, according to the law;
b) for the benefit of the acquirer of an property who pays the holder of the claim accompanied by a guarantee on the respective property;
c) for the benefit of the person who, being obligated together with others or for others, has an interest in repaying the debt;
d) for the benefit of the heir who pays the obligations of the estate from his property.
Article 856. Effects of subrogation
(1) Subrogation transfers to the paying third party all the rights and actions of the creditor, as well as their accessories, in the form in which they existed on the date of subrogation.
(2) Subrogation takes effect from the moment of payment made by the third party in favor of the creditor.
(3) Subrogation shall be effective against the principal debtor and those who have guaranteed the obligation. They may raise against the new creditor the exceptions they had against the original creditor if they did not consent to the subrogation.
Article 857. Partial subrogation
(1) In the event of partial subrogation, the original creditor, holder of a security, may exercise his rights for the unpaid part of the claim in preference to the new creditor.
(2) However, if the original creditor has undertaken to guarantee the amount for which the subrogation was carried out, the latter shall be preferred.
Chapter IV
PERFORMANCE OF OBLIGATIONS
Section 1
General provisions regarding
in the performance of obligations
Article 858. General conditions for the performance of obligations
(1) The basis for enforcement lies in the existence of an obligation.
(2) The obligation must be performed in the proper manner, in good faith, at the place and time established.
(3) Securities cannot be transferred directly in payment of debt between two parties under penalty of absolute nullity, unless the provisions of Article 8 of Law No. 184/2016 on financial collateral contracts provide otherwise.
Article 859. Place of performance of the obligation
If the place of performance is not determined or does not result from the nature of the obligation, performance shall be carried out:
a) at the domicile or registered office of the creditor at the time of the obligation – in the case of a pecuniary obligation;
b) at the location of the property at the time the obligation arises – in the case of obligations to deliver a specific individual property;
c) at the place where the debtor carries out his activity related to the obligation, and in his absence, at the place where the debtor has his domicile or registered office – in the case of other obligations.
Article 860. Change of domicile, registered office,
the creditor’s place of business
or the debtor
(1) If the debtor or creditor has changed his domicile, headquarters or place of business before the date of performance of the obligation and has notified the other party thereof, the obligation shall be performed at the new domicile, headquarters or place of business.
(2) Additional expenses or risks due to the change of domicile, registered office or place of activity shall be borne by the party that changed them.
Article 861. Term for performance of the obligation
(1) If the term for the performance of the obligation is not determined nor does it result from its nature, the creditor has the right to demand its performance at any time, and the debtor is entitled to perform it at any time.
(2) If the duty to perform immediately does not result from the law, the contract or the nature of the obligation, the debtor must perform the obligation within 7 days from the moment of receipt of the invoice or an equivalent request from the creditor. The introduction of juridical action against the debtor is assimilated to the request for performance by the creditor.
(3) If the term for the performance of the obligation is determined, it is considered that the creditor cannot request performance before the term. However, the debtor may perform the obligation before the term if the creditor has no valid reason to refuse performance. If he rejects the anticipated performance, the creditor is obliged to immediately inform the debtor in this regard and to take all necessary measures to avoid prejudice to him.
(4) The creditor’s acceptance of the performance of the obligation before the deadline does not affect the payment deadline of the correlative obligation.
Article 862. Deadline for performance of the obligation
contractual pecuniary whose
The lender is a business.
(1) The term for the performance of the pecuniary obligation, established in the contract concluded between businesss, which has as its object the delivery of goods, the performance of works or the provision of services, may not exceed 60 days from the date provided for in paragraph (3) letter a), b) or, as the case may be, c) of this article. By way of exception, the parties may expressly stipulate in the contract a longer term for performance provided that this clause is not manifestly abusive towards the creditor within the meaning of art. 1080.
(2) The term for the performance of a pecuniary obligation by a public authority or another legal person governed by public law or by their associations, established in the contract concluded with a business, which has as its object the delivery of goods, the performance of works or the provision of services, may not exceed 30 days from the date provided for in paragraph (3) letter a), b) or, as the case may be, c). By way of exception, the parties may expressly stipulate in the contract a term for performance which may not exceed 60 days if this is objectively justified, taking into account the nature or specific characteristics of the contract.
(3) If the term for the performance of the pecuniary obligation resulting from a contract provided for in paragraph (1) or (2) is not determined nor does it result from its nature, the pecuniary obligation must be performed within 30 days from the date of:
a) receipt by the debtor of the invoice or an equivalent payment request;
b) the debtor’s receipt of the consideration for the pecuniary obligation, if the date of receipt of the invoice or an equivalent payment request is not certain, as well as if the debtor receives the invoice or an equivalent payment request prior to receipt of the consideration;
c) the receipt or verification of the consideration, if a procedure for receipt or verification is provided for by law or by contract to establish the contractual conformity of the consideration and if the debtor receives the invoice or an equivalent request for payment before or on the date on which this receipt or verification takes place.
(4) If a procedure for receipt or verification is provided for to establish the contractual conformity of the consideration, the maximum duration of that procedure shall not exceed 30 days from the date of receipt of the consideration, unless the contract expressly provides otherwise and provided that these clauses are not manifestly abusive towards the creditor within the meaning of art. 1080.
(5) Any clause contrary to the provisions of this article to the detriment of the creditor of the pecuniary obligation shall be absolutely null and void. The nullity of the clause shall not affect the validity of the other clauses in the contract.
(6) The provisions of this article shall not prejudice the right of the parties to agree on a schedule for the payment of installments of the total amount due to the creditor.
(7) The provisions of this article shall not apply to insurance contracts or the obligations of the debtor in respect of whom insolvency proceedings are initiated.
Article 863. Deadline for performance of the obligation
in consumer contracts
(1) If the term for the performance of the obligation resulting from a contract between a business and a consumer is not determined nor does it result from its nature:
a) the business must perform the obligation for the benefit of the consumer no later than 30 days from the date of conclusion of the contract unless the consumer has requested that the performance take place earlier, according to art. 861;
b) the consumer must pay the business within 30 days from the date of receipt of the invoice or an equivalent request for payment. However, if the consumer received the request for payment before receiving the service, if he did not receive any request for payment or if the date of receipt of the request for payment is uncertain, the 30-day period shall run from the date of receipt of the service by the consumer.
(2) If the business is obliged to refund the money received from the consumer for a specific service, the refund must be made to the consumer as soon as possible, but in any case no later than 30 days from the occurrence of the event triggering the refund obligation. Any clause contrary to the provisions of this paragraph to the detriment of the consumer shall be absolutely null and void.
Article 864. The creditor’s right to request enforcement
obligation before the deadline
(1) Even if, in favor of the debtor, a certain performance term is established, the creditor may demand immediate performance of the obligation if the debtor is insolvent or has reduced the previously agreed guarantees, or in general has been unable to present them, as well as in other cases provided for by law.
(2) If the pecuniary obligation is to be executed in installments, the creditor may demand the immediate performance of the installments not yet due if:
a) one of the cases provided for in paragraph (1) has occurred;
b) an installment remains unpaid, in whole or in part, for more than 45 days from its due date;
c) during any period of 12 consecutive months, three or more installments have not been paid in full when due;
d) the conditions that entitle the creditor to resort to resolution for non-performance of the contract from which the pecuniary obligation results are met.
(3) The provisions of paragraph (2) shall apply accordingly to the pecuniary obligation to be paid in installments according to the court decision.
(4) Any clause contrary to the provisions of this article to the detriment of the consumer debtor is absolutely null and void.
Article 865. The debtor’s right to postpone performance
REQUIREMENTS
The debtor has the right to postpone the performance of the obligation if and to the extent that he cannot determine in good faith to whom he must execute it.
Article 866. Order of performance of the obligation
If the order of performance of correlative obligations is not determined nor does it result from their nature, then, to the extent that the obligations can be performed simultaneously, the parties are required to perform simultaneously unless the circumstances indicate otherwise.
Article 867. Persons entitled to receive
performance of the obligation
(1) The debtor must perform the obligation to the creditor or the person authorized or indicated by him or to the person authorized by law or court decision.
(2) If the performance was made against a person who is neither authorized nor indicated by the creditor, the obligation is considered executed if the creditor confirms it or benefits from it in any way.
Article 868. Enforcement in favor of a creditor
apparent
(1) Enforcement carried out in good faith for the benefit of an apparent creditor is valid even if it is subsequently established that he was not the true creditor.
(2) The apparent creditor is required to return to the true creditor the benefit received, according to the rules of unjust enrichment.
Article 869. Payment made to a minor creditor, a
protected adult or a person who
cannot fully realize
his actions
(1) If the creditor is a minor, an adult in respect of whom a judicial protection measure has been established, or a person who cannot fully understand his actions, the payment made to him personally is not valid, unless the debtor demonstrates that the payment benefited the creditor.
(2) The provisions of paragraph (1) shall not apply to payments that can be validly received independently by a minor or an adult in respect of whom a judicial protection measure has been established.
Article 870. Performance of the obligation by a third party
(1) If it does not appear from the law, juridical act or the nature of the obligation that the debtor is to perform the obligation personally, the creditor may not refuse its performance by a third party:
a) if the third party executes with the debtor’s consent;
b) if the third party has a legitimate interest in performing and the debtor does not perform, or if it is certain that the debtor will not perform when due.
(2) Performance by a third party pursuant to paragraph (1) does not release the debtor from the obligation to the extent that the third party subrogates to the rights of the creditor.
(3) If the debtor is not required to perform the obligation personally, but the creditor accepts the performance from a third party in cases other than those provided for in paragraph (1), the creditor is required to compensate the debtor for the damage suffered in this way.
(4) The debtor who entrusts the performance of the obligation to a third party remains responsible for the performance.
Article 871. Satisfaction of the creditor’s claims
by a third party
If the creditor subjects an property belonging to the debtor to prosecution, any person who is at risk of losing certain rights over the property may satisfy the creditor’s claims without the debtor’s consent. By satisfying the said claims, the third party is subrogated to the creditor’s rights.
Article 872. Method of performance of pecuniary obligation
(1) The pecuniary obligation may be enforced by any means commonly used in the respective relations at the place of enforcement of the obligation.
(2) The creditor who accepts payment by using a payment instrument, debt instrument or any other instrument containing a promise to pay is presumed to accept performance on condition that payment will be made.
(3) Except in the case where the creditor has indicated a specific account, payment by transfer may be made to any account opened in the name of the creditor that the creditor has made known.
(4) If the payment is made by transfer, the pecuniary obligation is considered to have been executed on the date on which the amount of money that was the subject of the payment was recorded in the account of the payment service provider of the person to whom the payment was to be made.
Article 873. Currency of performance of the obligation
PECUNIARY
(1) The pecuniary obligation shall be expressed in national currency. The parties may agree on pecuniary obligations in foreign currency to the extent that this is not prohibited by law.
(2) If the pecuniary obligation expressed in foreign currency must be performed on the territory of the country, the performance shall be made in the national currency, except in cases where the parties have provided for payment in foreign currency and the law allows the receipt/performance of payments and transfers in foreign currency on the territory of the Republic of Moldova. The determination of the national currency equivalent of the pecuniary obligation expressed in foreign currency and vice versa shall be carried out by applying the official exchange rate of the Moldovan leu valid on the date of performance of the obligation, even if before the maturity of a pecuniary obligation the exchange rate of the payment currency against the currency of the pecuniary obligation has changed, unless the law or the contract establishes otherwise. In the event of a monetary reform, the exchange rate existing on the date of the monetary reform shall be applied.
(3) If the pecuniary obligation is expressed in a foreign currency, and its performance is made in another foreign currency (in cases where the law allows the receipt/making of payments and transfers in foreign currency), the determination of the equivalent in another foreign currency of the pecuniary obligation expressed in a foreign currency shall be carried out by applying the official exchange rate of the Moldovan leu valid on the date of performance of the obligation, unless the law or the contract establishes otherwise.
(4) The party in default bears the risk of a change in the exchange rate of the currency of payment. The creditor has the right to indicate the exchange rate applicable to the payment either from the due date of the obligation or from the date of payment of the obligation. If the debtor has already made the payment according to the lower exchange rate, the creditor may request the difference resulting from the exchange rate within 30 days from the date of receipt of the payment.
Article 874. Interest rate
(1) If, according to the law or the contract, the obligation bears interest, interest shall be paid equal to the base rate of the National Bank of Moldova applicable according to paragraph (2) unless the law or the contract provides for another rate.
(2) The base rate of the National Bank of Moldova applicable:
a) for the first semester of the year in question, it is the rate in force on January 1 of that year;
b) for the second semester of the year in question, it is the rate in force on July 1 of that year.
Article 875. Imputation of performance
(1) If the debtor owes the creditor several obligations of the same nature, and the performance performed is not sufficient to extinguish all the obligations, subject to the provisions of paragraph (6), the obligation indicated by the debtor at the time of performance shall be extinguished.
(2) If the debtor does not make such an indication, the creditor may, within a reasonable time and by notifying the debtor, impute the performance to one or, as the case may be, several obligations, at his choice.
(3) The imputation provided for in paragraph (2) shall not produce effects if it is made on an obligation that is not yet due, is illegal or is litigious.
(4) If neither the debtor nor the creditor indicates the imputation according to the corresponding provisions of paragraphs (1)-(3), the performance shall be imputed to the obligation that meets one of the following criteria, in the following order:
a) the obligation that is due or that has reached maturity first;
b) the obligation for which the creditor has the fewest guarantees;
c) the obligation that is most burdensome for the debtor;
d) the obligation that arose first.
(5) If none of the criteria set out in paragraph (4) apply, the performance shall be imputed to all obligations proportionally, subject to the provisions of paragraph (6).
(6) In the case of a pecuniary obligation, regardless of the imputation indicated by the debtor, the payment made by the debtor shall be imputed, firstly, to expenses, secondly, to interest and other benefits and, finally, to the basic amount (capital), unless the creditor makes a different imputation.
Article 876. Performance of the obligation in installments
(1) Unless otherwise provided by law, contract or the nature of the obligation, the debtor may perform the obligation in installments only with the consent of the creditor.
(2) If there is any dispute regarding a part of the obligation, the creditor may not refuse the part not in dispute proposed by the debtor, except in the case where, due to the non-performance or improper performance of the disputed part of the obligation, the creditor loses interest in the entire performance.
Article 877. Refusal of another benefit
The creditor is not obliged to accept a performance other than that due. This rule applies even if the proposed performance is of a higher value.
Article 878. Quality standard
If the quality of the service is not expressly determined by the contract, the debtor is obliged to perform service of at least average quality.
Article 879. Performance in the case of specific goods
generic
If the object owed is only generically determined, the debtor is liable, to the extent that performance is possible from goods of the same kind, for the non-performance of the obligation, even if the non-performance is justified.
Article 880. Prohibition of collecting payments
from consumers
(1) Businesss are prohibited from charging consumers fees for the use of a particular means of payment that exceed the cost borne by the business for using such means of payment. This rule does not prohibit businesss from charging different prices for the same good or service when it is sold through different sales channels.
(2) Where a business operates a telephone line for the purpose of contacting him by telephone regarding the concluded contract, the consumer shall not be obliged to pay, when contacting the business, more than the basic rate. The business shall not be entitled to use premium rate telephone numbers for this purpose.
(3) The provisions of paragraph (2) shall not affect the right of providers of electronic communications services to charge for these calls.
(4) Before the consumer concludes a contract or accepts an offer, the business must request the consumer’s explicit consent to any additional payment to that previously agreed upon by which the business’s main contractual obligation is remunerated. Where the business has not obtained the consumer’s explicit consent, but has inferred it by using automatically included options that the consumer must reject in order to avoid the additional payment or by accepting the standard contractual terms, the consumer may claim the refund of this payment.
(5) The provisions of this article apply to sale-purchase contracts, contracts for the performance of works and contracts for the provision of services, as well as contracts for the provision of public water supply and sewerage services, contracts for the supply of natural gas, contracts for the supply of electricity, contracts for the supply of thermal energy and contracts for the supply of digital content.
(6) The provisions of this article shall not apply to the contracts referred to in Article 1018, paragraph (2), letters a) to j), l) and m) and paragraphs (3), (6) and (8). However, the provisions of paragraph (4) of this article shall apply to additional payments imposed on the consumer under a financial services contract if this is a contract related to the contract to which this article applies.
(7) The provisions of this article shall apply to the extent that special legal provisions relating to certain types of contracts concluded with consumers do not provide otherwise.
(8) Any clause contrary to the provisions of this article to the detriment of the consumer shall be absolutely null and void.
Article 881. Costs of performance of the obligation
The costs of performing the obligation are borne by the debtor unless the law or the contract provides otherwise.
Section 2
Creditor’s delay
Article 882. General provisions regarding delay of the creditor
(1) The creditor is in default when he does not accept the due performance offered to him without a legal basis.
(2) If the performance of the performance requires an action on his part, the creditor is in delay if the performance is offered to him and he does not perform that action.
(3) The debtor may not be in arrears to the extent that the creditor is in arrears.
Article 883. Temporary inability to receive performance
If the performance term is not stipulated or if the debtor has the right to perform the obligation before the term, the creditor is not in delay when, for 7 days, he is deprived of the possibility of accepting the offered performance, except in the case where the debtor informed him in advance about the performance.
Article 884. The creditor’s obligation to compensate
The creditor is obliged to repair the damage caused to the debtor by the delay in accepting the performance.
Article 885. Liability of the debtor in case
of the creditor’s delay
If the creditor is in delay, the debtor is liable for non-performance of the obligation only if he failed to perform intentionally or due to gross negligence.
Article 886. Effects of the creditor’s delay
(1) Regardless of his/her fault in the delay, the creditor:
a) is obliged to compensate the debtor for the additional expenses necessary to preserve the object of the contract and provide for its performance;
b) bears the risk of accidental damage or loss of the property;
c) may not benefit from interest and late payment interest or penalties for the debt owed to him, unless the law provides otherwise.
(2) If the debtor is obliged to hand over the fruits of the property or to compensate for their value, this obligation does not affect the fruits obtained during the creditor’s delay.
Article 887. Failure to take possession of tangible property
(1) The person obliged to surrender or return a tangible property, other than money, which remained in his possession because the creditor did not take possession of the property, is obliged to take reasonable measures to protect and preserve it.
(2) The debtor may be released from the obligation to surrender or return the property and from the obligation provided for in paragraph (1) by, at his option:
a) storing or, as the case may be, recording the property with a third party under reasonable conditions, who will hand it over at the creditor’s first request, and notifying the creditor about the storage or, as the case may be, recording;
b) the sale of the property under reasonable conditions after the expiration of an additional term that the debtor has established by notification to the creditor and the payment of the net income to the creditor.
(3) However, if the property is perishable or if its preservation involves disproportionate expenses, the debtor is obliged to take reasonable measures to dispose of the property. The debtor may be released from the obligation to surrender or return by paying the net income to the creditor.
(4) The debtor remaining in possession has the right to reimbursement of reasonable expenses incurred or to retain them from the proceeds of the sale in accordance with this article.
Section 3
Protection of the right to perform the obligation
§1. General provisions
Article 888. Joint guarantee of creditors
(1) The debtor shall be liable for his obligations with his entire property. The debtor’s property shall serve as joint security for his creditors.
(2) Unseizable property may not be subject to the guarantee provided for in paragraph (1).
(3) Creditors whose claims arise in connection with a specific division of the estate, authorized by law, must first pursue the property that are the subject of that estate. If these are not sufficient to satisfy the claims, the debtor’s other property may also be pursued, except in the case where the debtor is liable, according to law or contract, only with that estate.
Article 889. Equality of creditors and causes of preference
(1) The amounts obtained from the pursuit of property from the debtor’s estate shall be divided among the creditors in proportion to the value of each one’s claim, unless there are causes of preference or contracts between them regarding the order of their satisfaction.
(2) Creditors who have the same rank are equally entitled to satisfaction of the claim, in proportion to the value of the claim of each of them.
(3) The causes of preference are privileges and real guarantees.
Article 890. Privilege
(1) Privilege is the preference granted by law to a creditor in consideration of his claim.
(2) The privilege is indivisible.
(3) Privileges are enforceable against third parties without the need for their registration in the advertising registers, unless otherwise provided by law.
(4) Claims secured by a real guarantee shall be satisfied from the encumbered property with priority over privileged claims.
(5) Privileged claims shall be satisfied with priority over non-privileged claims, even if the latter arose earlier.
(6) The rank of privileges shall be established by law.
(7) In cases expressly provided for by law, the privilege applies only to certain property in the debtor’s property (special privileges).
Article 891. The creditor’s right to preserve his
debt
The creditor may take all necessary or useful measures to preserve his rights, such as securing evidence, completing publicity and information formalities on behalf of the debtor, exercising indirect action or taking precautionary measures.
§2. Oblique action
Article 892. Oblique action
(1) The creditor whose claim is certain, liquid and due may, on behalf of his debtor and independently of his will, exercise his rights and actions in the event that the debtor, to the detriment of the creditor, refuses or omits to exercise them.
(2) The creditor may not exercise the rights and actions that are exclusively personal to the debtor.
(3) The claim must be liquid and due at the latest at the time of examination of the action.
(4) In the relations between the creditor acting indirectly and his debtor, the provisions on legal representation shall apply accordingly.
Article 893. Exceptions against the creditor who
filed an action indirectly
The person against whom an indirect action has been brought may raise against the creditor all the exceptions opposable to his own creditor.
Article 894. Effects of action exercised indirectly
All property obtained under the indirect action enter into the debtor’s patrimony and benefit all of his creditors. However, the creditor who exercised the indirect action benefits from a privilege over those property for the purpose of reimbursement of expenses incurred in connection with the indirect action.
§3. Revocation action
Article 895. Revocation action
(1) The creditor may request that juridical acts concluded by the debtor to the detriment of the creditor, manifested by preventing the full satisfaction of the creditor’s rights towards the debtor, be declared unenforceable against him, if the debtor knew or should have known that the juridical act would harm the creditor or, if the juridical act was concluded before the creditor’s right arose, it was concluded by the debtor with the intention of harming creditors in general.
(2) If the contested juridical act is for a pecuniary purpose, in addition to the circumstances provided for in paragraph (1), the creditor must demonstrate that:
a) the third party contracting or the beneficiary of the act knew or should have known that the juridical act would harm the creditor or that it was concluded with the intention of harming the creditor; or
b) if the juridical act was concluded before the creditor’s right arose, the third party contracting or the beneficiary of the juridical act knew of the debtor’s intention to harm creditors in general.
(3) The debtor is presumed to have known or should have known that the gratuitous juridical act will harm the creditor or creditors in general if it is concluded in the last 12 months preceding the filing of the revocation action.
(4) Both parties to a pecuniary juridical act are presumed to have known or should have known that it would harm the creditor or creditors in general if the juridical act was concluded in the last 12 months preceding the filing of the revocable action and it constitutes:
a) a juridical act in which the market value of the debtor’s performance exceeds by one third the market value of the third party’s consideration; or
b) a juridical act concluded by the debtor with a person affiliated with the debtor or whose beneficiary is a person affiliated with the debtor.
(5) In the cases provided for in paragraph (4), it is presumed that the third party contracting party has not performed the consideration.
(6) The creditor may file a revocation action even if his claim is not yet due.
(7) For the purposes of the legal provisions regarding the revocation action, the debtor also means the third party who granted a real or personal guarantee in favor of the creditor.
Article 896. Peculiarities of contesting guarantees
(1) For the purposes of applying the provisions of art. 895, the security interest granted by the debtor to guarantee his own obligation constitutes a juridical act with onerous title.
(2) For the purposes of applying the provisions of art. 895, the real or personal guarantee granted by the debtor to guarantee the obligation of a third party constitutes a juridical act for consideration if it was granted simultaneously with the conclusion of the contract from which the guaranteed obligation results or, if it was granted subsequently, if it was initially expressly mentioned in the contract from which the guaranteed obligation results.
Article 897. Limitation of the revocable action
(1) The creditor whose claim arises from the contract may not challenge by means of a revocable action the juridical acts concluded by the debtor to the extent that the creditor, at the time of concluding the contract, knew or, reasonably, should have known of the juridical act and its possible effect of harming the creditor in the future.
(2) Also, a creditor who has consented to the conclusion of the juridical act by the debtor or who has otherwise expressly waived the right to challenge the debtor’s acts by means of a revocable action may not file a revocation action.
(3) The revocation action shall be time-barred within 1 year from the date on which the creditor became aware or should have become aware of the damage resulting from the juridical act subject to challenge.
Article 898. Effects of admitting the revocation action
(1) The contested juridical act shall be declared unenforceable both against the creditor who filed the revocation action and against all other creditors who, being able to file a revocation action, have intervened in the case. They shall have the right to be paid from the amounts obtained from the pursuit of the benefit received by the third party contractor or beneficiary, in compliance with the order of preference existing between these creditors. The amount remaining after satisfying the claims of all these creditors shall be returned to the third party contractor or, as the case may be, the beneficiary.
(2) If the third party contracting or the beneficiary cannot return the performance due, the creditor may claim its monetary value in accordance with the legal provisions regarding unjustified enrichment.
(3) The third party contracting or the beneficiary who has acquired something based on the juridical act declared unenforceable may exclude the pursuit of the performance by paying the creditor who benefits from the admission of the action an amount of money equal to the damage suffered by the latter through the conclusion and performance of the juridical act. Otherwise, the court decision admitting the revocable action shall make the property unavailable until the termination of the forced performance of the claim on which the revocable action was based.
Article 899. Filing a revocation action regarding
subsequent juridical acts
By means of a revocation action, the juridical act subsequent to the unenforceable juridical act concluded by the debtor may also be declared unenforceable. In this case, the provisions of art. 895-900 shall apply accordingly, in particular the contracting third party shall be the debtor, and the subsequent acquirer shall be the contracting third party or the beneficiary.
Article 900. Revocation action under insolvency law
The provisions of Articles 895-899 do not affect the legal provisions regarding the action of the insolvency administrator or the liquidator to contest the acts and services performed by the debtor before his insolvency was declared.
Chapter V
NON-PERFORMANCE OF THE OBLIGATION
Section 1
General provisions
Article 901. Legal means of defense
of the creditor in case of non-performance
an obligation
(1) When, without justification, the debtor does not perform his obligation, the creditor may, under the terms of the law and, where applicable, of the contract, at his option:
a) to request the forced performance of the obligation;
b) to suspend the performance of the correlative obligation;
c) to reduce its correlative obligation;
d) to resort to the termination of the contract;
e) to request payment of compensation for the damage suffered through non-performance;
f) to exercise any other legal means of defense, provided by law or contract, to realize his right violated by non-performance.
(2) If the debtor demonstrates that the non-performance of the obligation is justified, the creditor may resort to any of the legal means of defense provided for in paragraph (1), with the exception of forced performance in kind and payment of compensation.
(3) The creditor may not resort to the legal means of defense provided for in paragraph (1) to the extent that he caused the debtor’s failure to perform his obligation.
(4) The legal remedies provided for in paragraph (1) which are compatible may be combined. In particular, the creditor shall not be deprived of the right to compensation by resorting to any other remedy.
(5) Non-performance of an obligation means any deviation, with or without justification, from the proper performance of an obligation and includes total or partial non-performance of an obligation, improper or delayed performance of an obligation.
(6) The contracting parties may provide that events other than non-performance of the obligation grant the creditor all or some of the legal means of defense provided for in paragraph (1).
(7) The creditor’s declaration does not produce the effect of the resolution or reduction of the correlative obligation if at that time the right to resolution or reduction of the correlative obligation was time-barred and the debtor invokes this exception before or after the declaration.
Article 902. Granting additional time limit
for performance
(1) In any case of non-performance of an obligation, the creditor may, by declaration to the debtor, grant an additional term for proper performance.
(2) During the additional period, the creditor may suspend the performance of its own correlative obligations and may claim compensation, but may not resort to any other means.
(3) If the creditor receives a declaration from the debtor that he will not perform within the granted term or if upon the expiry of that term no proper performance has been carried out, the creditor may resort to any available means.
Article 903. Circumstances justifying non-performance
Apart from other cases provided for by law, non-performance of the obligation is justified to the extent that the debtor demonstrates one of the following circumstances:
a) it is due to an impediment provided for in art. 904;
b) the creditor caused the debtor’s failure to perform the obligation, including through delay or through the fact that the debtor suspended the performance of the obligation pursuant to art. 914.
Article 904. Justification due to an impediment
(1) The debtor’s failure to perform his obligation is justified if it is due to an impediment beyond the debtor’s control and if the debtor could not reasonably have been required to avoid or overcome the impediment or its consequences.
(2) Where the obligation arose from a contract or other juridical act, non-performance is not justified if the debtor could reasonably have taken the impediment into account at the time of conclusion.
(3) If the justifiable impediment is only temporary, the justification shall be effective for the duration of the impediment. However, if the delay assumes the characteristics of essential non-performance, the creditor may resort to legal defenses based on such non-performance.
(4) If the justifying impediment is permanent, the obligation shall be extinguished. The correlative obligation shall also be extinguished. In the case of contractual obligations, the restitutive effects of this extinction shall be regulated by the provisions of art. 926-932, which shall apply accordingly.
(5) The debtor shall ensure that the creditor receives notification of the impediment and its effects on the ability to perform within a reasonable time after the debtor became aware or should have become aware of these circumstances. The creditor shall be entitled to compensation for any damage resulting from the failure to receive such notification.
(6) The justifiable impediment does not exempt the debtor from paying damages if the impediment arose after the non-performance of the obligation, except in the case where the creditor could not, in any case, due to the impediment, benefit from the performance of the obligation.
Article 905. Clause that excludes or limits
the legal means of defense of
creditor
The clause of a contract or other juridical act that excludes or limits in advance the liability to pay compensation for damage caused by intentional or gross negligence failure to perform the obligation is subject to absolute nullity.
Article 906. Notifications regarding non-performance
(1) If the creditor notifies the debtor of the non-performance of the obligation or of the fact that he foresees such non-performance and the notification is sent or made correctly, then the delay or inaccuracy in the process of transmitting the notification or the fact that it did not arrive does not prevent it from producing effects.
(2) The notification shall take effect from the moment it should have arrived under normal circumstances.
Article 907. Failure to notify of non-compliance
(1) If, in the case of an obligation to deliver goods, perform works or provide services, the debtor delivers goods, performs works or provides services that are not in conformity with the terms of the obligation, the creditor may not invoke the non-conformity unless the creditor notifies the debtor within a reasonable time, specifying the nature of the non-conformity.
(2) The reasonable period shall run from the moment the goods are delivered or the work or service is completed or, if later, from the moment the creditor discovered or should reasonably have discovered the lack of conformity.
(3) The debtor may not invoke the provisions of paragraph (1) if the creditor has failed to notify facts that the debtor knew or should reasonably have known and which the debtor, although obliged, did not disclose to the creditor.
(4) The provisions of this article shall not apply if the creditor is a consumer.
Article 908. The business who cannot fulfill
the consumer’s order made through
remote communication
(1) Where a business is unable to perform the obligations arising from a contract concluded with a consumer by means of distance communication, he shall inform the consumer immediately and reimburse, without undue delay and in any event within 30 days, the amounts paid by the consumer. The consumer’s legal remedies resulting from the business’s failure to perform shall remain unaffected.
(2) Any clause that derogates from the provisions of this article to the detriment of the consumer shall be absolutely null and void.
Section 2
Remediation by the debtor of the performance
POOR
Article 909. Remediation by the debtor
(1) If the performance does not correspond to the conditions of the obligation, the debtor may offer a new and compliant performance if this can be done within the time limit provided for performance.
(2) If the debtor cannot make a new and compliant performance offer within the time limit provided for performance, but, immediately after being notified of the non-compliance, offers to remedy it within a reasonable time at his own expense, the creditor may not resort to any remedy for non-performance, except for the suspension of the performance of the correlative obligation, before granting the debtor a reasonable time limit to remedy the non-compliance.
(3) However, the creditor is not obliged to grant the debtor a period for remedy in one of the following situations:
a) failure to perform the contractual obligation within the period provided for performance constitutes an essential failure to perform;
b) the creditor has reason to believe that the debtor’s enforcement was made, contrary to good faith, with knowledge of the non-compliance;
c) the creditor has reason to believe that the debtor will not be able to carry out the remedy within a reasonable time and without creating significant inconvenience or without prejudice to the creditor’s legitimate interests;
d) the debtor refuses to remedy, remedy is impossible or remedy is otherwise inopportune, taking into account the circumstances.
(4) The debtor shall bear the costs of remediation, in particular the costs of transport, travel, performance of works and procurement of materials.
Article 910. Consequences of granting to the debtor
of the possibility of remediation
(1) Within the term granted for remedy, the creditor may suspend the performance of his correlative obligations, but may not resort to any other means provided for in art. 901 paragraph (1).
(2) If the debtor does not remedy the non-compliance within the given period, the creditor may resort to any available means.
(3) Even if the remedy has been made, the creditor retains the right to compensation for the damage caused by the initial or subsequent non-performance or by the implementation of the remedy.
Article 911. Restitution of the replaced benefit
(1) If the debtor, voluntarily or as a result of an obligation under Article 913, has remedied a non-conforming performance by replacing the performance, he has the right and obligation to take back the replaced performance at his own expense.
(2) The creditor is not required to pay for the use of the replaced service from which he benefited until the date of replacement.
Section 3
The right to request enforcement
Article 912. Forced performance of pecuniary obligations
(1) The creditor has the right to obtain enforced payment of amounts due and payable.
(2) If the creditor has not yet performed the correlative obligation for which payment is due and it is clear that the debtor of the pecuniary obligation will not wish to receive the performance, the creditor may nevertheless perform the correlative obligation and obtain payment by force, except in one of the following cases:
a) the creditor could have concluded a substitution contract on reasonable terms without significant effort or expense;
b) forcing the debtor to accept the performance of the correlative obligation would be unreasonable, given the circumstances.
Article 913. Performance of non-pecuniary obligations
(1) The creditor has the right to obtain the forced performance in kind of the obligation, other than that of paying a sum of money.
(2) Forced performance in kind also includes the creditor’s right:
a) to request free remediation of the performance that does not comply with the terms of the obligation;
b) in the event of the debtor’s failure to perform the obligation to deliver an property, to request that the property be taken from the debtor and delivered to the creditor;
c) to request the destruction of everything done in violation of the obligation not to do or to be authorized to destroy it himself, the expenses being borne by the debtor.
(3) However, enforcement in kind may not be obtained by force in one of the following cases:
a) performance would be illegal or impossible;
b) enforcement would require disproportionate effort or expense, unless the creditor cannot obtain a similar performance from a third party;
c) the performance is so personal that it would be unreasonable to enforce it.
(4) The creditor shall forfeit the right to obtain enforcement in kind if he does not request enforcement within a reasonable period after he became aware or should have become aware of the non-enforcement.
(5) The creditor may not claim compensation for damage or penalty to the extent that he has increased the damage or the amount of the penalty by unreasonably insisting on performance in kind in circumstances where the creditor could have concluded a substitution contract on reasonable terms without significant effort or expense.
(6) The fact that the right to claim enforcement in kind is excluded under paragraph (3) or (4) shall not prejudice the right to claim compensation.
Section 4
Suspension of performance
Article 914. The right to suspend performance
correlative obligation
(1) The creditor who is required to perform the correlative obligation at the same time as the debtor performs his obligation or after that time has the right to suspend the performance of the correlative obligation until the debtor has offered to perform or has performed.
(2) A creditor who is required to perform the correlative obligation before the debtor performs his obligation and who reasonably believes that the debtor will not perform the obligation when due may suspend the performance of the correlative obligation for as long as this reasonable belief persists. However, the right to suspend performance shall be extinguished if the debtor provides sufficient assurances of proper performance.
(3) The creditor who suspends enforcement in the situation referred to in paragraph (2) has the duty to immediately notify the debtor of this fact and is liable for the damage caused to the debtor by the failure to perform this duty.
(4) The right to suspend under this article shall relate to the whole obligation or only to a part of it, as is reasonable in the circumstances.
(5) If the debtor files an action requesting the enforced performance of the correlative obligation, and the creditor invokes the suspension of its performance on the basis of paragraph (1) or (2), the court shall establish in the judgment ordering the enforced performance of the correlative obligation that the creditor must execute the correlative obligation in accordance with the judgment only if the debtor simultaneously executes his obligation to the creditor or provides sufficient assurances of performance to the creditor or if the creditor is in delay in accepting the performance offered by the debtor.
Section 5
termination
§1. Grounds for the resolution for non-performance
Article 915. Resolution for non-performance
Resolution for non-performance occurs when it is based on the provisions of art. 916, 917, 918 or 919, as well as when it is based on another case of non-performance of the contractual obligation for which the law or the contract grants the creditor the right to resolution.
Article 916. Resolution for essential non-performance
(1) The creditor has the right to termination if the debtor’s failure to perform the contractual obligation is essential.
(2) The failure to perform the contractual obligation is essential in one of the following cases:
a) it substantially deprives the creditor of what could be expected under the contract, in relation to the entire contractual relationship or the tranche subject to resolution, unless at the time of conclusion of the contract the debtor did not foresee and could not reasonably foresee that result;
b) the proper performance of the obligation is of the essence of the contract;
c) it is intentional or due to serious negligence;
d) gives the creditor reason to believe that he cannot count on the debtor’s performance in the future.
Article 917. Resolution after granting the deadline
additional for performance
(1) The creditor has the right to termination in case of non-performance of the contractual obligation if he granted the debtor, by notification, a reasonable additional period for performance, and the debtor did not perform within this period.
(2) If the term granted is unreasonably short or no term has been set, the creditor may resolve only after the expiry of a reasonable term from the date on which the notification takes effect.
(3) The right to termination under the provisions of this article does not arise if the non-performance is minor.
Article 918. Resolution for anticipated non-performance
The creditor has the right to terminate the contractual obligation before its maturity if the debtor has declared that he will not perform the obligation or it is otherwise clear that he will not perform it, provided, in all cases, that the non-performance was essential.
Article 919. Resolution for lack of insurance
appropriate performance
The creditor who reasonably believes that there will be an essential non-performance of the contractual obligation has the right to termination if he requests from the debtor, by notice, adequate assurances of proper performance and such assurances are not provided to him within a reasonable time.
§2. Scope, exercise and expiry
from the right to resolution
Article 920. Scope of application of the law
to the resolution
(1) If the debtor’s obligations arising from the contract are not divisible, the creditor has the right to terminate the contract only in its entirety (total termination).
(2) If the debtor’s obligations arising from the contract must be performed in separate installments or are otherwise divisible, then:
a) if there is a ground for termination for non-performance in respect of a tranche to which consideration can be attributed, the creditor is entitled to termination of the contract in respect of that tranche (partial termination);
b) the creditor has the right to terminate the contract in its entirety only if the creditor has no reasonable interest in accepting the performance of the other installments or if the ground for termination relates to the contractual relationship in its entirety (total termination).
(3) In the case of leases, contracts, the provision of services and other contractual relationships, if they are executed in separate installments or are otherwise divisible, the resolution shall apply only in relation to future installments, unless the creditor, by means of the resolution declaration, has extended it to certain or all previous installments under the conditions of paragraph (2) letter b).
Article 921. Declaration of resolution
(1) The right to terminate shall be exercised by the entitled party by written declaration notified to the other contracting party.
(2) The entitled party, if he invokes a justified interest, may, instead of the resolution according to paragraph (1), request the court to declare the resolution by judicial decision. Under the terms of the Code of Civil Procedure, the entitled party may modify the action for declaring the resolution into an action for forced performance of the contractual obligation and vice versa.
(3) Where the notification made under Article 917 provides for the automatic termination if the debtor does not perform within the additional period granted by the notification, the termination shall operate, without any further declaration, upon the expiry of that period or of a reasonable period after the notification (which must be longer than the period granted by the notification).
Article 922. Loss of the right to resolution
(1) If performance was offered late or the performance made does not otherwise correspond to the contract, the creditor shall forfeit the right to terminate for that non-performance if the declaration of termination is not notified within a reasonable period.
(2) If the creditor has granted the debtor a period to remedy the non-performance in accordance with art. 909, the period referred to in par. (1) of this article shall run from the expiry of the period granted. In other cases, the period shall run from the moment the creditor became aware or should have become aware of the offer or of the non-compliance.
(3) The creditor shall forfeit the right to terminate pursuant to Articles 917, 918 or 919 if the creditor fails to notify the declaration of termination within a reasonable period after the occurrence of this right.
Article 923. Resolution in the case of plurality of parties
(1) If in a contract there are several persons on one side or, as the case may be, on the other side, the right to termination may be exercised only by all persons on one side or, as the case may be, only towards all persons on the other side.
(2) If the right to termination ceases for one of the entitled persons on one side, it also ceases for the other entitled persons on that side.
Article 924. Cancellation clause
If the right to terminate is stipulated in the contract on condition that a certain performance is performed (withdrawal clause), the declaration of termination shall not be effective if the performance has not been performed before or simultaneously with the notification of the declaration of termination and the other party has therefore rejected the declaration without delay. However, the declaration shall be effective if, after its rejection, the performance is performed without delay.
§3. Effects of the resolution
Article 925. Effect on resulting obligations
from the contract
(1) The effect of the resolution is to extinguish the unexpired obligations resulting from the contract or the relevant part of these obligations.
(2) However, termination does not affect the contract’s stipulations regarding dispute resolution or other clauses that are intended to apply even after termination.
(3) The creditor declaring the resolution retains the right to damages or penalties accrued at the date of the resolution and, in addition, has the same rights to damages or penalties as it would have had if the obligations extinguished by the effect of the resolution had been unfulfilled. In respect of such extinguished obligations, the creditor shall not be deemed to have caused or contributed to the damage solely on the ground that it exercised the right to resolution.
§4. Restoration of benefits
Article 926. Restitution of benefits obtained through enforcement
(1) By the effect of the termination, a contracting party (beneficiary) who has received any benefit through the performance of obligations by the other contracting party under the contract subject to termination or the contract installment subject to termination is obliged to return it. If both contracting parties are obliged to return, the obligations are correlative.
(2) If the benefit consisted of the payment of a sum of money, the amount received must be returned.
(3) To the extent that the benefit (not being pecuniary) is transferable, it must be restituted by transfer.
(4) If the transfer could cause disproportionate effort or expense, the benefit may be repaid by paying its value in accordance with art. 930.
(5) To the extent that the benefit is not transferable, it must be repaid by paying its value in accordance with art. 930.
(6) The obligation to return a benefit extends to any fruits generated by the benefit.
Article 927. Effect of resolution on rights
transmit
(1) The real right, the right of claim and the right to the intellectual property object transferred under the contract shall not be restored by operation of law by the effect of its termination. The restoration shall take place by the transfer of the right by the obligated contracting party in favor of the other contracting party under the conditions of art. 510. However, if, according to the conditions of the contract, the ownership right to the movable property has passed to the acquiring contracting party before receiving the property in possession, and the movable property is still in the possession of the transferring contracting party who has the right to suspend the delivery of the property under art. 914, then the termination of the contract, during the exercise of the right to suspend performance, shall retroactively terminate the right of the acquiring contracting party.
(2) If the contracting party to whom a right has been transferred by registration in an advertising register fails to perform the obligation to return the right, the other contracting party may request the court, by way of an action for registration, to issue a decision that shall take the place of the consent of the contracting party that refuses the return.
Article 928. Effect of resolution on rights
limited real estate established
(1) The limited real right established under the contract shall be extinguished by the effect of its resolution.
(2) If the contracting party to whom a limited real right has been established by registration in an advertising register does not consent to its deletion, the other contracting party may request the court, by way of an action for rectification, to issue a decision that will take the place of the consent of the contracting party that refuses the deletion.
Article 929. Exclusion of restitution
(1) The obligation to make restitution under the provisions of Article 926 does not arise to the extent that the proper performance by one of the contracting parties corresponds to the proper performance by the other contracting party.
(2) The contracting party declaring the termination may consider the installments provided as non-compliant if the benefits received by it have no value or have a substantially reduced value due to the non-performance committed by the other contracting party.
(3) The obligation to make restitution under this section does not arise where the contract was free of charge.
Article 930. Payment of the value of the benefit
(1) The debtor of the restitution obligation is held
a) to pay (at the time of performance) the value of the benefit which is not transferable or which ceases to be transferable before the obligation to repay arises; and
b) to pay compensation for the reduction in the value of the service subject to restitution as a result of the deterioration of the condition of the service between the time of performance and the time when the obligation to restitution arose.
(2) If the service had a contractual price, the value of the service shall be equal to the part of that price proportional to the value of the actual service received in relation to the value of the promised service. If no price has been agreed upon, the value of the service shall be equal to the amount of money that would have been legally agreed upon by a provider of the service and a beneficiary of the service who are willing and able to perform the transaction, while being aware of the actual non-conformities of the service (if any).
(3) The beneficiary’s obligation to pay the value of the benefit is reduced to the extent that, due to the non-performance of the obligation owed to him by the other contracting party:
a) the service cannot be returned in a condition substantially identical to the condition in which it was received; or
b) the beneficiary is forced, without compensation, to dispose of the benefit or to bear an expense or other damage in order to keep the benefit.
(4) The beneficiary’s obligation to pay the value of the service is also reduced to the extent that, as a result of his conduct based on the reasonable, even erroneous, belief that there was no lack of conformity, the service cannot be returned in the same condition in which it was received.
Article 931. Use and improvements
(1) The beneficiary is obliged to pay a reasonable amount for the use he has benefited from as a result of the service, except for the amount he must pay according to art. 930 para.
(1) in relation to that use.
(2) The beneficiary who has made improvements to the performance that he must return under this section is entitled to payment of the value of the improvements if the other contracting party will unconditionally enjoy this value when exploiting the returned performance, except in the case where:
a) the beneficiary was prohibited from carrying out the improvement; or
b) the beneficiary made the improvement when he knew or could have known that the benefit was to be returned
Article 932. Liability after the occurrence of the obligation
of restitution
(1) The beneficiary is obliged:
a) to pay (at the time of performance) the value of the benefit that ceases to be transferable after the obligation to return it arises; and
b) to pay compensation for the reduction in the value of the benefit subject to restitution as a result of
the deterioration of the condition of the benefit after the obligation to return it arises.
(2) If the benefit is alienated after the obligation to repay arises, the amount to be paid is equal to the income resulting from the alienation, if they are higher.
(3) The right to other compensation resulting from the failure to fulfill the obligation to return the benefit remains unaffected.
Section 6
Reduction of the correlative obligation
Article 933. The right to reduce the correlative obligation
(1) A creditor who accepts performance that is not in accordance with the terms of the obligation shall have the right to reduce his correlative obligation. The reduction shall be proportional to the decrease in the value of the performance received at the date of performance, in relation to the value of the performance that would have been received through compliant performance.
(2) The creditor who is entitled to reduce the correlative obligation according to paragraph (1) and who has already performed the correlative obligation in an amount exceeding the reduced correlative obligation is entitled to the refund of the difference from the debtor.
(3) The creditor who reduces the correlative obligation may not additionally claim compensation for the damage repaired by the reduction, but remains entitled to compensation for other damage suffered.
Section 7
Compensation and interest
Article 934. Right to compensation
(1) The creditor is entitled to compensation for the entire damage caused by the non-performance of the obligation, unless the debtor demonstrates that the non-performance is justified.
(2) The damages must cover only the damage suffered by the creditor which is the direct and necessary consequence of the non-performance.
(3) The damage repaired by compensation also includes future damage that would reasonably have occurred.
(4) Damage includes patrimonial and non-patrimonial (moral) damage.
(5) The debtor is liable for the acts of his representative and the persons to whom he has entrusted the performance of the obligation to the same extent as for his own acts.
Article 935. Compensation for non-pecuniary damage
(1) The creditor has the right to compensation for non-pecuniary damage caused by the failure to perform the obligation if the failure to perform violates a personal non-pecuniary right, if the creditor is a consumer, as well as in other cases expressly provided for by law.
(2) Compensation for non-pecuniary damage caused by the failure to perform the obligation represents the amount of money that will provide fair satisfaction to the creditor, taking into account all the circumstances of the case.
Article 936. Assessment of compensation for
property damage
(1) Compensation for pecuniary damage caused by the non-performance of the obligation represents the amount of money that the creditor will put, as far as possible, in the situation in which he would have been if the obligation had been properly performed. This compensation covers the actual damage suffered (including the expenses incurred and the reduction in the value of the property) and the profit lost by the creditor.
(2) The creditor shall bear the burden of proving the extent of the damage for which he claims compensation.
Article 937. Predictability
The debtor of the obligation resulting from the contract or other juridical act is liable only for the damage that he foresaw or could reasonably have foreseen, at the time of assuming the obligation, as being the probable result of the non-performance, unless the non-performance was intentional or due to gross negligence.
Article 938. Damage attributable to the creditor
The debtor is not liable for the damage suffered by the creditor to the extent that the creditor contributed to the non-performance or its effects.
Article 939. Reduction of damage
(1) The debtor is not liable for the damage suffered by the creditor to the extent that the creditor was able to reduce the damage by taking reasonable measures.
(2) The creditor shall be entitled to recover the expenses reasonably incurred in his attempts to mitigate the damage.
Article 940. Substitution contract
The creditor who declared total or partial resolution for non-performance and concluded, within a reasonable time and under reasonable conditions, a substitution contract may, if the conditions for claiming compensation are met, demand from the debtor compensation equal to the difference between the price of his performance under the terminated contract and the price of the performance under the substitution contract, as well as may demand from the debtor compensation for the unrepaired part of the damage.
Article 941. Market price
If the creditor has declared total or partial termination for non-performance and has not concluded a substitution contract, but the performance has a market price, the creditor may, if the conditions for claiming compensation are met, demand from the debtor compensation equal to the difference between the contractual price and the market price on the date of termination, as well as demand from the debtor compensation for the unrepaired part of the damage.
Article 942. Interest for delay in performance
pecuniary obligations
(1) If a sum of money is not paid on the due date, the creditor is entitled to interest on late payment for that sum from the date immediately following the due date for payment until the date on which the payment was made, at the rate provided for in paragraph (2) or at another rate provided for by special legal provisions.
(2) The rate of interest for late payment shall be equal to the rate provided for in Article 874 plus 5 percentage points per year, if the debtor is a consumer, or 9 percentage points per year, in other cases. However, if before maturity the pecuniary obligation bore the interest provided for in the contract, for the purpose of determining the rate of interest for late payment, the creditor may replace the rate provided for in Article 874 with the interest rate provided for in the contract.
(3) The consumer debtor has the right to prove that the damage suffered by the creditor as a result of the delay in payment is lower than the legal rate of interest for late payment.
(4) If a penalty clause has been stipulated, the creditor may, at his option, claim either the default interest calculated in accordance with the provisions of this Article or the penalty for the delay. The creditor may also claim compensation for the damage caused in the part not covered by the default interest.
(5) During the period in which the amount of money is not paid on due date with justification, the debtor owes only the default interest at the rate provided for in art. 874. The consumer debtor does not owe such default interest.
(6) Any clause contrary to the provisions of this article to the detriment of the consumer is absolutely null and void.
Article 943. Anatocism and capitalization
(1) Interest, late payment interest or, as the case may be, the penalty shall be calculated only on the basic amount of the pecuniary obligation (capital).
(2) However, interest may be capitalized and may produce interest if expressly provided for, but only for interest due for at least 12 months.
(3) Late payment interest or, as the case may be, the penalty cannot be capitalized.
(4) Any clause contrary to the provisions of this article shall be absolutely null and void.
However, the current account or deposit account or other payment account contract may derogate from the provisions of this article.
Article 944. Interest for delay in performance
obligations to give or to do
(1) If an obligation to give or do, other than one to pay a sum of money, is not performed when due, the creditor is entitled to interest on late payment on the monetary equivalent of the unperformed part of the obligation, from the date immediately following the due date until the date of the corresponding performance, at the rate provided for in art. 874 or at another rate provided for by special legal provisions. If the unperformed obligation has a correlative pecuniary obligation, the amount of this correlative obligation shall constitute the monetary equivalent of the unperformed obligation.
(2) If a penalty clause has been stipulated, the creditor may, at his option, claim either the default interest calculated in accordance with the provisions of this article or the penalty. The creditor may also claim compensation for the damage caused in the part not covered by the default interest.
Article 945. Compensation for recovery expenses
of the business’s pecuniary claims
(1) From the moment the conditions for the payment of default interest pursuant to art. 942 are met, the creditor of the pecuniary obligation may claim from the debtor the payment of a minimum compensation equal to the equivalent in lei of 20 euros at the exchange rate of the National Bank of Moldova on that day to cover the recovery costs incurred by the creditor. This rule applies even if the late pecuniary obligation is only an installment of the total amount owed to the creditor according to a payment schedule.
(2) The creditor’s right to claim compensation for the recovery expenses incurred, in the part not covered by the minimum compensation provided for in paragraph (1), remains unaffected.
(3) The provisions of this article shall apply only to contracts whereby a business delivers goods, performs works or provides services for the benefit of another business or a public authority or another legal person governed by public law or their associations.
Article 946. Currency in which compensation is determined
The compensation must be determined in the currency that best corresponds to the damage suffered by the creditor.
Chapter VI
MEANS OF GUARANTEEING ENFORCEMENT
OBLIGATIONS
Section 1
Penal clause
Article 947. General provisions regarding the clause
criminally
(1) The penalty clause is a contractual provision through which the parties assess the damage in advance, stipulating that the debtor, in the event of non-performance of the obligation, is to remit to the creditor a sum of money or another property (penalty).
(2) Only a valid claim may be secured by a penal clause.
(3) The penalty may be stipulated in a fixed amount or in the form of a share of the value of the obligation guaranteed by the penalty clause or of the unexecuted part, including in the form of a late payment interest.
(4) The parties may agree on a penalty greater than the damage.
(5) The debtor is not obliged to pay a penalty if the non-performance of the obligation is justified.
(6) The nullity of the obligation entails the nullity of the penal clause. The nullity of the penal clause does not entail the nullity of the obligation.
Article 948. Form of the penal clause
The penal clause is drawn up in authentic form if the law requires authentic form for the juridical act to which the clause applies. In other cases, the penal clause is drawn up in writing, under penalty of absolute nullity.
Article 949. The right to claim other compensation
(1) If the penalty is stipulated for the case where the debtor does not perform the obligation, the creditor may demand both the performance of the obligation and the payment of the penalty. Both the performance of the obligation and the payment of the penalty may not be demanded if the penalty was stipulated as compensation in lieu of performance and not only as a means of guaranteeing the performance of the obligation.
(2) The creditor has the right to claim compensation for the damage not covered by the penalty (inclusive penalty clause). In cases provided for by law or contract, the creditor may claim either compensation or penalty (alternative penalty clause), may claim compensation for the damage in addition to the penalty (punitive penalty clause) or may claim only the penalty (exclusive penalty clause).
(3) If the creditor has received the performance, he may request payment of the penalty only if he expressly reserved this right upon receiving the performance.
Article 950. Penal clause in the case of indivisible obligation
If, by a penal clause, an indivisible obligation is guaranteed and its non-performance is due to the fault of a debtor, the penalty may be claimed either in full from the guilty debtor or from each co-debtor for his share. In the latter case, each co-debtor has the right of action against the person who caused the penalty to run.
Article 951. Penal clause in the case of a divisible obligation
(1) If, by a penalty clause, a divisible obligation is guaranteed, the penalty is also divisible and flows only against the co-debtor who has not performed the obligation and only for the part of the obligation to which he is held.
(2) The provisions of paragraph (1) shall not apply to joint and several obligations. They shall not apply either if the penalty clause was stipulated to prevent partial payment and one of the co-debtors has prevented the full performance of the obligation. In such a case, the co-debtor shall be liable for the entire penalty, and the others, in proportion to their share of the obligation. In the latter case, each co-debtor shall have the right of action against the person who caused the penalty to run.
Article 952. Legal penal clause
The penalty established by law cannot be excluded or reduced in advance by agreement of the parties.
Article 953. Reduction of the penalty
(1) In exceptional cases, taking into account all the circumstances, the court may order, at the request of the debtor, the reduction of the disproportionately high penalty. When reducing the penalty, account must be taken not only of the creditor’s patrimonial interests, but also of other interests, protected by law, of the creditor.
(2) The reduction of the penalty is not allowed if it was extinguished through voluntary performance.
(3) The reduction of the penalty for delay in the performance of the pecuniary obligation is not allowed if the penalty rate is equal to or lower than the legal rate applicable according to art. 942.
(4) Any clause that derogates from the provisions of this article to the detriment of the debtor is absolutely null and void.
Section 2
earnest
Article 954. General provisions regarding the deposit
(1) Arvuna is a sum of money or other property that one contracting party gives to the other party to confirm the conclusion of the contract and to guarantee its performance. In case of doubt, the amount paid is considered an advance.
(2) The agreement on the deposit must be drawn up in authentic form if the law requires authentic form for the juridical act from which the secured obligation results. In other cases, the agreement on the deposit must be drawn up in writing, under penalty of absolute nullity.
Article 955. Inclusion of the deposit in the benefit account
The arvuna is taken into account when the service is performed, and if it is not performed, it is refunded.
Article 956. Retention or return of the deposit
(1) If the party that gave the deposit is liable for the non-performance of the secured obligation, it shall remain with the other party after the termination of the contract by the latter. If the party that received the deposit is liable for the non-performance of the secured obligation, it shall be obliged to pay the other party double the deposit after the termination of the contract by the latter.
(2) In addition to those provided for in paragraph (1), the party liable for the failure to perform the guaranteed obligation is obliged to compensate the other party for the damage not covered by the payment of the deposit, unless otherwise provided for in the contract.
(3) The creditor of the unfulfilled secured obligation may opt for forced performance or for the termination of the contract and compensation for the damage according to the general rules.
(4) The deposit shall be returned if the contractual relationship is terminated for a reason that does not involve the liability of either party.
Section 3
Debtor’s guarantee
Article 957. The concept of debtor’s security
The debtor’s guarantee consists of his obligation to an unconditional performance or to a performance exceeding the actual object of the contract.
Article 958. Validity of the guarantee
The acceptance of a guarantee is effective if it does not contravene legal provisions and if the debtor does not oblige himself excessively.
Article 959. Form of guarantee
The guarantee is effective only when made in writing.
Section 4
Retention
Article 960. General provisions regarding retention
(1) The person who is obliged to remit or return an property may retain it as long as the creditor does not compensate him for the necessary and useful expenses he has incurred for that property and for the damages that the property has caused.
(2) The right of retention is removed if the creditor offers the retainer sufficient security or records the claimed amount.
(3) The provisions of paragraph (1) shall apply to the extent that the contract does not provide otherwise.
Article 961. Exclusion of the right of retention
(1) The right of retention cannot be exercised if the possession of the property results from an unlawful act or if the property is unseizable.
(2) The right of retention may not be invoked by the possessor in bad faith, except in the cases provided for by law.
(3) The expiration of the limitation period does not prevent the exercise of the right of retention if the secured right of the retainer was not statute-barred at the time when the right of retention could have been exercised.
Article 962. Enforceability of the right of retention
(1) The right of retention is enforceable against third parties without any advertising formality being required.
(2) In all cases, the right of retention cannot be opposed to creditors who have initiated enforcement against the debtor, but the retainer has the right to participate in the distribution of the price of the property under the law.
(3) The dispossession of property against the will does not extinguish the right of retention. The party exercising this right may request the return of the property, subject to the rules applicable to the extinction of the main action and the acquisition of movable property by the possessor in good faith.
(4) If the creditor files an action requesting the return of the property, and the retainer invokes the right of retention, the court shall establish in the judgment ordering the return of the property that the retainer must execute the judgment only if the creditor simultaneously executes the obligation secured by the right of retention or provides sufficient assurances of performance to the retainer or if the retainer is in delay in accepting the performance offered by the creditor.
Article 963. Obligation to preserve property
and perception of fruits
The retainer must preserve the property with the diligence of a good owner. He will collect the fruits, being obliged to impute them to his claim.
Article 964. Extinction of the right of retention
The right of retention shall lapse if the property comes into the possession of the creditor or the right holder, unless the retainer acquires the property again on the basis of the same legal basis.
Chapter VII
EXERCISE OF OBLIGATIONS
Article 965. Effects of the extinguishment of obligations
(1) By extinguishing obligations, the legal relations between the parties cease in the part that refers to the extinguished obligation.
(2) If the obligation is extinguished, the debtor is not obliged to pay interest and penalties or to repair the damage.
Section 1
Extinguishing the obligation through performance
Article 966. Effects of performance
(1) Performance extinguishes the obligation only if it is carried out in the appropriate manner.
(2) The obligation shall also be extinguished if the creditor accepts another performance instead of the one due (delivery in payment). In this case, the debtor shall be liable for defects in the performance in accordance with the rules on the seller’s liability.
(3) If he accepts the performance of the obligation, the burden of proving non-performance lies with the creditor.
(4) In the event of the main obligation being extinguished, the suretyship, pledge and other accessory rights shall cease to the extent that no justified interests of third parties remain.
Article 967. Right to receive receipt and original title
(1) The debtor who performs the obligation has the right to receive a receipt and, as the case may be, to request the original title or to make a mention on the creditor’s original title regarding the extinguishment.
(2) In the event of impossibility of requesting a receipt from the creditor, the debtor may prove payment by any means of evidence.
(3) If the creditor has returned the original title without issuing a receipt, it is presumed, until proven otherwise, that the obligation has been executed.
(4) In the event of impossibility of returning the original title, the debtor shall have the right to request from the creditor a written declaration on the termination of the obligation. All expenses, in this case, shall be borne by the creditor.
(5) If the creditor refuses to issue a receipt or return the original title, the debtor has the right to refuse performance. In this case, the creditor is in default.
(6) If the creditor has issued a receipt regarding the payment of the underlying debt, it is presumed that both the interest and the expenses have been paid.
Section 2
Extinguishing the obligation by recording
Article 968. General provisions regarding recording
(1) If the creditor is in default or the debtor, for reasons not attributable to him, does not know the identity or domicile of the creditor, the debtor may deposit the money, securities or other documents, as well as jewelry, at a bank or a notary. Foreign currency may be deposited in order to extinguish the obligation by recording only if the law allows the receipt/performance of payments and transfers in foreign currency on the territory of the Republic of Moldova in relation to the obligation in question.
(2) If the goods to be registered are deposited at the post office, they shall be considered registered from the moment of deposit.
(3) Consignment extinguishes the debtor’s obligation even in cases where the goods or their equivalent can no longer be delivered to the creditor.
(4) From the moment of recording, the risks pass to the creditor, the debtor not being obliged to pay interest and penalties or to compensate for lost income.
Article 969. Simultaneous performance of obligations
If the performance of the obligation by the debtor is conditioned by the simultaneous performance of an obligation by the creditor, the debtor is entitled to condition the release of the pledged property on the performance of the obligation by the creditor.
Article 970. Place of recording
(1) The debtor is obliged to deposit the goods at the place of performance of the obligation. If he has deposited the goods at another place, the debtor is obliged to repair the damage caused thereby.
(2) The debtor is obliged to immediately inform the creditor about the recording, except in cases where he is unable to perform this obligation. The debtor must compensate the damage caused to the creditor by not informing about the recording.
Article 971. The debtor’s right to the return of the property
ENTRY
(1) The debtor has the right to request the return of the registered property.
(2) The return of the registered property is not allowed if:
a) the debtor expressly waived, at the time of recording, the right to restitution;
b) the creditor has declared to the institution where the goods are deposited that he is receiving them;
c) a final court decision is presented to the institution where the goods are deposited, by which the recording is recognized as legal;
d) insolvency proceedings have been filed against the debtor.
(3) If the registered property is returned to the debtor, the registration is terminated with retroactive effect (it is considered that it did not exist).
Article 972. Recording expenses
The costs of registration are borne by the creditor, except in cases where the debtor has taken over the registered property.
Article 973. Termination of registration upon expiration
the limitation period
Upon the expiration of a period of 3 years from the moment he learned or should have learned about the recording, the creditor loses the right to take possession of the property. In this case, the debtor has the right to claim the property even if he has waived that right.
Section 3
Extinguishing the obligation through compensation
Article 974. General provisions on compensation
(1) Offsetting is the mutual extinguishment of an obligation and an opposing claim, certain, liquid, of the same nature and due.
(2) The additional term granted for the payment of a due claim does not prevent set-off.
(3) Offsetting is also possible when the receivables are not due, but their holders consent.
(4) The compensation shall be made by declaration to the other party and shall take effect from the moment of receipt of the declaration. The declaration shall not take effect if it is affected by the modalities or if it contravenes the provisions of this section.
Article 975. Judicial compensation
(1) At the request of the creditor who invokes a justified interest, the court may order the set-off, even if one of the claims, although certain, is not yet liquid or due. Unless otherwise provided, the set-off shall take effect from the date on which the court decision becomes final.
(2) The court may not refuse to set off related mutual claims solely on the grounds that one of the claims is not liquid or due. In such a case, the set off shall be deemed to have taken effect from the moment the first of them became due. The acquisition by third parties of rights over one of the claims shall not prevent the debtor from opposing the set off.
Article 976. Conventional compensation
The parties may agree to extinguish all mutual claims, present or future, by set-off. This set-off shall take effect from the moment of conclusion of the set-off agreement or, in the case of future obligations, from the moment when both arise.
Article 977. Offsetting of non-equivalent claims
If the claims subject to compensation are not equivalent, only the fully covered claim is extinguished.
Article 978. Offsetting public claims
The claim of the state or administrative-territorial units, with the exception of the tax claim, may be extinguished by compensation only if the obligation must be executed against the budget that is to satisfy the claim of the compensation applicant.
Article 979. Offsetting of claims with places
different performance
If the claims subject to set-off have different places of enforcement, the set-off applicant is obliged to compensate the damage caused to the other party by the fact that he cannot receive enforcement or cannot perform the obligation in the established place.
Article 980. Offsetting of receivables in different currencies
If the parties have mutual pecuniary claims expressed in different currencies, each party may object to set-off under the terms of this section, unless it was agreed that the party objecting to set-off must pay exclusively in a specific currency.
Article 981. Offsetting of several claims
(1) If the person has several claims that can be settled through offsetting, his/her offsetting declaration shall be effective only if it indicates which claims he/she is settling through offsetting.
(2) If the person has multiple obligations that can be settled by offsetting, the rules regarding the imputation of payments apply.
Article 982. Compensation in the event of assignment of receivables or assumption of debt
(1) In the case of assignment of the claim, the debtor has the right to set off against the new creditor his claim against the old creditor if the maturity of this claim occurs before the receipt of the notification of the assignment, if the maturity is not indicated or if the performance can be requested at any time.
(2) In the event of debt takeover, the new debtor does not have the right to oppose a claim belonging to the old debtor.
Article 983. Compensation in the case of joint and several obligations
(1) The joint and several debtor may not offset the creditor’s debt against another co-debtor, except for the latter’s share in the joint and several debt.
(2) The debtor, including the joint and several debtor, may not oppose the joint and several creditor to offset the debt of a co-creditor towards himself, except for the latter’s share in the joint and several claim.
Article 984. Compensation in the case of suretyship
The surety may object to the compensation of what the creditor owes to the debtor, but the debtor may not object to the creditor’s compensation of his debt to the surety.
Article 985. Inadmissibility of compensation
(1) The set-off of claims is not allowed:
a) with the limitation period expired; this rule does not apply if the limitation period expired after the date on which the claim whose limitation period expired could be offset;
b) regarding the compensation for damage caused by injury to health or by causing death;
c) regarding the payment of alimony;
d) regarding lifelong maintenance;
e) if the object of the service is an intangible property;
f) when the obligation arose from an intentional unlawful act;
g) in other cases provided for by law.
(2) Compensation of the claim excluded by contract is not allowed.
Section 4
Other grounds for extinguishment of obligations
Article 986. Confusion
(1) An obligation shall be extinguished if a single person is both creditor and debtor (confusion), unless the law or the nature of the obligation due provides otherwise. In some cases, if the confusion ceases to exist, its effects shall also cease.
(2) The obligation is not extinguished by confusion if this has the effect of depriving a third party of a right.
(3) Confusion does not operate if the debt and the claim are found in the same patrimony, but in different patrimony masses recognized by law.
Article 987. Effect of confusion on suretyship
The confusion that operates through the same person combining the qualities of creditor and debtor benefits the surety. By combining the qualities of surety and creditor or surety and debtor by the same person, the main obligation is not extinguished.
Article 988. Debt forgiveness
(1) The obligation shall be extinguished if the creditor releases the debtor from the performance of the obligation (debt remission). The obligation shall be deemed extinguished from the moment the debtor receives the notification of debt remission from the creditor, unless the debtor, within a reasonable period, performs the obligation or notifies the creditor of the fact that he objects to the debt remission.
(2) Debt forgiveness is total unless it has been expressly stipulated that it is partial.
(3) The obligation is also extinguished by a contract in which the creditor acknowledges that the obligation does not exist.
(4) The debt remission towards the principal debtor also has effects towards the guarantors.
(5) The waiver by the creditor of a security instrument does not allow it to be presumed that he has waived the secured claim.
(6) The debt remission towards a guarantor also has effects towards the other guarantors.
(7) Debt forgiveness is prohibited if the forgiveness violates the claim rights of third parties against the creditor.
Article 989. Fortuitous impossibility of performance
(1) An obligation shall be extinguished by the impossibility of performance if the impossibility is due to a circumstance for which the debtor is not responsible. Performance shall not be considered impossible merely because the obligation can be performed under more difficult conditions, at greater expense, with the assistance of a third party or only after a certain period of time.
(2) The burden of proving the impossibility of performing the obligation lies with the debtor.
(3) The debtor who is unable to perform his obligation cannot claim the performance of a correlative obligation by the creditor, and if it is performed, he must return everything he received, except in the case where the debtor demonstrates that the impossibility of performance arose due to the fault of the creditor.
(4) If the debtor has partially performed the obligation that has become impossible to perform, the creditor is required to perform a correlative obligation up to the competition of his enrichment.
Article 990. Death of a natural person or liquidation
legal person
(1) The obligation shall be extinguished by the death of the debtor if its performance is impossible without his personal participation or if it is otherwise linked to the person of the debtor.
(2) The obligation shall be extinguished by the death of the creditor if the performance is intended for him personally or if it is otherwise related to the person of the creditor.
(3) The obligation is extinguished by the liquidation of the legal person (debtor or creditor), except in cases where the obligation or claim of the liquidated legal person is transferred by law to other persons.
Article 991. Novation
(1) The obligation shall be extinguished based on the agreement between the parties to replace it with another obligation (novation), except for securities, unless Art. 8 of Law No. 184 of July 22, 2016 on financial collateral contracts provides otherwise.
(2) The will to replace one obligation with another must be expressly stipulated.
(3) The extinction of the main obligation by novation also extinguishes the accessory obligations unless the parties have expressly stipulated otherwise.
Title II
ABOUT CONTRACTS IN GENERAL
Chapter I
GENERAL PROVISIONS REGARDING THE CONTRACT
AND TO THE CONTENT OF THE CONTRACT
Article 992. The concept of contract
(1) A contract is an agreement of will made between two or more persons by which legal relationships are established, modified or terminated.
(2) The rules regarding the juridical act are applicable to the contract.
Article 993. Freedom of contract
(1) Anyone may freely choose their contractor, unless the law provides otherwise.
(2) The contracting parties may freely conclude contracts and determine their content, within the limits of mandatory legal provisions.
(3) Unless expressly provided otherwise under penalty of nullity, the contracting parties may, by contract, derogate from those provisions contained in this Charter which relate to the rights, obligations and other legal effects produced by the contract, including the allocation of risks.
(4) The contracting parties may also derogate from the legal provisions contained in the other articles of this code, in special laws and other normative acts that refer to the rights, obligations and other legal effects produced by the contract, including the distribution of risks, if it does not result unequivocally from the way the provision is expressed, from its content or from its context that the legal provision is mandatory.
(5) The legal provisions regarding the extinction of rights resulting from the contract may be derogated from only under the conditions of art. 393.
(6) If, for the purpose of protecting the priority interests of society or an individual, the effects of a contract depend on the approval of state authorities, the limitations and conditions must be regulated by law.
(7) Compulsion to conclude a contract is prohibited, except in cases where the obligation to contract is provided for by law or arises from an obligation assumed voluntarily.
(8) The parties may conclude named contracts, unnamed contracts, as well as complex contracts.
Article 994. Named contract and unnamed contract
(1) A contract is named if the law specifically regulates it. Other contracts are unnamed.
(2) The unnamed contract is subject, in the following order:
a) the agreement of the parties, express and implicit;
b) the legal provisions applicable to contracts and contractual obligations in general;
c) established practices between the parties and usages in the field, if any;
d) the legal provisions applicable to similar named contracts to the extent that they are compatible with the nature and purpose of the unnamed contract.
Article 995. Complex contract
(1) The contract is complex if it includes:
a) two or more elements that correspond to the named contract; or
b) some elements that correspond to the named contract and other elements that correspond to the unnamed contract.
(2) To the extent that they do not conflict with the nature and purpose of the complex contract, the legal provisions applicable to each relevant named or unnamed contract shall apply accordingly to the respective elements of the complex contract and the rights and obligations arising therefrom.
(3) The provisions of paragraph (2) shall not apply if:
a) the law provides that a certain complex contract is to be qualified in its entirety as a contract of a certain category;
b) in the absence of a legal provision referred to in letter a), the elements corresponding to a category of contracts predominate so much that it would be unreasonable for the complex contract not to be qualified in its entirety as a contract of that category.
(4) In the cases provided for in paragraph (3), the legal provisions applicable to the category to which the complex contract was assigned as a result of the qualification (primary category) shall apply to the contract and the rights and obligations arising therefrom. However, the legal provisions governing those elements of the contract falling within a category other than the primary category shall apply accordingly to the extent necessary to regulate those elements, provided that they do not conflict with the legal provisions applicable to the primary category.
(5) The provisions of this article do not remove the application of mandatory legal provisions.
Article 996. Binding force of the contract
The contract may be modified or terminated only in accordance with its clauses or by agreement of the parties, unless the law provides otherwise.
Article 997. Obligation to contract
(1) If one of the contracting parties holds a dominant position on the market, it is obliged to contract in this area. It may not, under the penalty provided by law, impose clauses that contravene competition law or abusive clauses.
(2) With regard to consumers and other persons who obtain or use goods, works or services for non-commercial purposes, the conclusion of a contract cannot be refused without good reason if the other party has the status of a business.
(3) In the event of unjustified failure to perform the obligation to conclude the contract provided for in paragraph (1) or (2) of this article, the person entitled to conclude the contract may request the court to issue a judgment that will replace the contract. The provisions of article 1000 shall apply accordingly.
Article 998. Impossibility at the time of conclusion
CONTRACT
(1) The contract is valid even if at the time of its conclusion one of the parties is unable to perform its obligation.
(2) The provisions of paragraph (1) do not prevent the invocation of relative nullity for error on impossibility under the law.
Article 999. Preliminary contract and final contract
(1) A preliminary contract is a contract by which one party (promiser) undertakes to the other party (beneficiary) to conclude another contract (definitive contract) in the future at the request of the beneficiary. This obligation may also be assumed by both parties.
(2) The preliminary contract must provide for the essential clauses of the final contract and be concluded in the form required by law for the final contract, under the same penalty.
(3) The contracting party who only has the capacity of beneficiary cannot be obliged to conclude the definitive contract nor is he liable for having chosen not to conclude it.
(4) The amounts paid and other services performed under the preliminary contract are presumed to be an advance on the services to be due under the final contract. However, even if the property has already been delivered, ownership or other real right over it can only be acquired under the final contract.
(5) The stipulation by which the parties undertake to negotiate with a view to concluding or amending a contract does not constitute a preliminary contract.
Article 1000. Beneficiary’s rights in case of non-performance
(1) In the event of unjustified failure to perform the promisor’s obligation to conclude the definitive contract, the beneficiary may request the court to issue a judgment that will replace the definitive contract. The date of conclusion of the contract shall be considered the date on which the judgment becomes final.
(2) The provisions of paragraph (1) do not limit the beneficiary’s possibility to resort to other legal means of defense of the creditor in case of non-performance of the obligation.
(3) The court decision that will take the place of a definitive contract will be issued even when the promisor does not have sufficient rights to be able to transmit or, as the case may be, constitute for the benefit of the beneficiary the right provided for by the contract and does not have the powers to dispose of that right. In this case, the provisions of art. 358 become incidental.
(4) In addition to other grounds for termination provided for by law or the preliminary contract, the beneficiary has the right to terminate the preliminary contract also when the promisor has alienated to a third party the right that is the subject of the definitive contract or when any other indications appear that there will be a failure to perform the promisor’s obligations arising from the definitive contract that will entitle the beneficiary to resort to termination of the definitive contract.
(5) If the beneficiary has chosen to conclude the definitive contract or to request the court to issue a decision in lieu of the definitive contract, he is not deprived of the right to invoke the material and legal defects of the performance if he was not aware of them and should not have been aware of them, on the date of the preliminary contract. This rule applies even if the beneficiary was aware of them or should have been aware of them, on the date of the definitive contract.
Article 1001. Option to contract
(1) By preliminary contract, the parties may expressly stipulate that the promisor maintains an irrevocable offer, within the meaning of art. 1032, to conclude the definitive contract, and the beneficiary has the option to accept or refuse it.
(2) The definitive contract is concluded by exercising the option in the sense of the beneficiary’s acceptance of the irrevocable offer of the promisor, under the conditions agreed upon in the preliminary contract.
(3) Both the preliminary contract containing the option and the declaration of acceptance must be concluded in the form provided by law for the definitive contract and, taken together, will constitute the definitive contract.
(4) If the declaration of acceptance is concluded in authentic form, the notary’s endorsement will be limited only to the legality of the declaration of acceptance, not to the definitive contract thus concluded.
(5) The legal provisions regarding the preliminary contract shall apply equally to the option. The provisions of art. 1000 paragraph (1) shall not apply to the option.
Article 1002. Enforceability of the beneficiary’s rights
(1) The rights of the beneficiary to acquire ownership or another real right over an property under the definitive contract are enforceable against third parties:
a) by fulfilling the advertising formalities provided by law regarding the preliminary contract; or
b) if the law does not provide for the possibility of fulfilling advertising formalities regarding the preliminary contract, if the third party was aware of the existence of the preliminary contract regarding the good.
(2) From the moment the definitive contract is considered concluded and the beneficiary is entitled to acquire the right of ownership or another real right based on it, he may oppose his right to all third parties who have acquired rights over the property after the date of opposability against them provided for in paragraph (1), as well as to their creditors.
(3) If the right acquired by the beneficiary is acquired, according to the law, by registration in an advertising register, the beneficiary may request rectification of the register by:
a) registration of his right; and
b) cancellation of the registered rights of third parties mentioned in paragraph (2) which could not be registered without the consent of the beneficiary if the beneficiary held his right at the date of their registration.
Article 1003. Framework contract
(1) The framework contract is the juridical act by which the parties agree to negotiate and establish contractual relationships whose clauses will be agreed upon through subsequent contracts concluded under the framework contract.
(2) The clauses of the framework contract complement the content of the subsequent contract to the extent that they do not contradict it or if the parties have not excluded their application in another way.
Article 1004. Contract regarding patrimony
present
The contract by which a party undertakes to transfer all or part of its present property or to encumber it with usufruct requires notarial authentication.
Article 1005. Contract regarding future patrimony
The contract by which a party undertakes to transmit his future patrimony or part of that patrimony or to encumber it with usufruct is void.
Article 1006. Contract regarding the inheritance of a living person
(1) The contract on the inheritance of a third party who is still alive is null and void. The contract on the legal share or legacy in the succession of a third party who is still alive is also null and void.
(2) The provisions of paragraph (1) shall not apply to the contract concluded between future legal successors on the legal share. Such a contract must be notarized.
Article 1007. Determination of performance by a party
or a third party
(1) If the performance is to be determined by a contracting party or a third party, in case of doubt it shall be deemed that the determination must be made on the basis of an equitable assessment.
(2) The determination of the benefit is made by declaration to the other party.
(3) If the determination of the benefit is to be made by several third parties, their unanimous agreement is required. If an amount from several named amounts is to be determined, the average amount shall be taken into account.
(4) If the benefit does not comply with the principle of equity, the determination shall be made by court decision. In case of delay or refusal, the determination shall also be made by court decision.
(5) Where a benefit is to be determined on the basis of a factor which does not exist or which has ceased to exist or to be accessible, that factor shall be substituted by the nearest equivalent if it is not unreasonable. Otherwise, the determination shall be made in accordance with the provisions of paragraph (4).
Article 1008. Imputation of knowledge
If a person who participated in the conclusion of the contract with the consent of a party or in the exercise of a right or the performance of an obligation resulting from them knew or foresaw a fact or is considered to have known or foreseen it, or acted with intention or with another relevant mental attitude, then this knowledge, foresight or mental attitude is imputed to the respective party.
Article 1009. Determination of the consideration
If the extent of the consideration is not determined, in case of doubt the determination shall be made by the party claiming the consideration. The provision of art. 1007 paragraph (4) shall apply accordingly.
Article 1010. Application of provisions on contracts
other obligations
Subject to other regulations, the provisions regarding contractual obligations are also applicable to other patrimonial obligations to the extent that, taking into account the nature of the obligation, this is possible.
Chapter II
PRE-CONTRACTUAL OBLIGATIONS
Section 1
Information obligations in general
Article 1011. General obligation of the business
to provide information
(1) Before the conclusion of the contract for the supply of goods, performance of works, provision of services, provision of digital content or other performance by a business to another person, the business has the obligation to provide that person, by any appropriate means, with information on the essential characteristics of the performance to be provided, which he possesses or can be expected to possess and the failure to provide which would be contrary to good faith.
(2) When assessing the volume of information that the business is required to provide under paragraph (1), all circumstances must be taken into account, including:
a) whether the business had special knowledge in the field;
b) the cost to the business of obtaining the relevant information;
c) the ease with which the other person could obtain the information by other means;
d) the nature of the information;
e) the likely importance of the information to the other party; and
f) if the other person is also a business, of good commercial practices in the given situation.
Article 1012. The business’s obligation not to provide
erroneous information to consumers
(1) When offering goods, works, services, digital content or any other performance to consumers, the business shall not provide misleading information. The information shall be deemed misleading if it distorts or omits essential circumstances which an average consumer can expect to be provided in order to make an informed decision about concluding the contract. An average consumer is considered to be a consumer who is sufficiently well informed and observant, taking into account social, cultural and linguistic factors.
(2) In order to determine what information an average consumer can expect to be provided, all circumstances shall be taken into account, as well as the technical limitations of the means of communication used.
(3) If a business makes a commercial communication, including advertising or marketing, which creates the impression in the minds of consumers that it contains all the relevant information necessary to take a decision on the conclusion of the contract, the business has the obligation to ensure that, in fact, the communication contains all the relevant information. Unless it is apparent from the context in which the commercial communication is made, the information to be provided must include:
a) the main characteristics of the goods, works, services, digital content or other performances, the identity and address of the business, if relevant, the price and, where applicable, the existence of a right of revocation granted by law;
b) the particularities regarding payment, delivery, warranty and filing of complaints, if they differ from the requirements of business diligence.
(4) Business diligence implies the level of specialized competence and prudence reasonably expected from the business towards consumers, in accordance with fair market practices and/or the general principle of good faith, in the business’s field of activity.
Section 2
Information obligations in some contracts
concluded with consumers
Article 1013. Definition of terms
For the purposes of this section, the following terms are defined as follows:
goods – any movable tangible object, except for objects sold by forced performance or otherwise, by the authority of the law; water, gas and electricity are considered goods for the purposes of this section when they are put up for sale in limited volume or in fixed quantity;
distance contract – any contract negotiated and concluded between the business and the consumer within an organized distance sales or service provision system, without the simultaneous physical presence of the business and the consumer, with the exclusive use of one or more means of distance communication, until and at the time the contract is concluded, including any order made by the consumer that produces binding effects on him;
off-premises contract – a contract between a business and a consumer, which meets one of the following conditions:
a) it is concluded in the simultaneous physical presence of the business and the consumer in a place that is not the business’s business premises;
b) for this contract the consumer was made an offer in the same circumstances as those mentioned in letter a);
c) is concluded in the business premises of the business or by using means of distance communication, immediately after the consumer has been approached personally and individually, in a place other than the business premises of the business, in the simultaneous physical presence of the latter and the consumer, with the exception of the simple distribution of promotional information near the business premises of the business;
d) is concluded during a trip organized by the business for the purpose or with the effect of promoting and selling the goods or services in question to the consumer;
functionality – how the digital content can be used, for example:
a) the language of the content and, if different, the language of any instructions included in the content;
b) the method of providing the content, such as: streaming, online, single download, access to download for a specified period;
c) content playback duration for video or audio files;
d) file type and size for downloadable files;
e) whether or not there is a commitment from the business or a third party to maintain or update the good;
f) any conditions of use of the good that are not directly related to interoperability, such as:
– tracking and/or personalization;
– the need for an internet connection to use the good and its technical characteristics (e.g. minimum download and upload speed);
– the need for other users to have certain software installed (e.g. communication software);
g) any limitations on the use of the property:
– limits on the duration during which a digital good can be viewed, read or used or on the number of uses;
– limits on the reuse of content, for example for the purpose of making private copies;
– restrictions based on the location of the consumer’s device;
– any features subject to additional purchases, such as paid content, club membership, or additional hardware or software components;
commercial guarantee – any commitment by the business or a producer to the consumer, in addition to the legal obligations relating to the guarantee of conformity, to refund the price paid or to replace, repair or maintain the goods in any way if they do not comply with the specifications or any other requirement not related to conformity in the guarantee certificate or in the relevant advertising available at the time of or before the conclusion of the contract;
interoperability – information regarding the hardware equipment and standard software environment with which the digital content is compatible, such as the operating system, the required version, certain characteristics of the hardware equipment;
open auction – sales method by which the business offers goods or services to consumers who participate or have the opportunity to participate in person (with physical presence) in the auction, through a transparent, competitive bidding procedure, led by an auctioneer, in which the winning bidder is obliged to purchase the goods or services;
commercial space:
a) any immovable retail establishment in which the business or the person acting on behalf of the business carries out his activity on a permanent basis; or
b) any mobile retail unit in which the business or the person acting on behalf of the business carries out his activity on a regular basis, including seasonally, and which is clearly identified as a space for sales to the public.
Article 1014. Information requirements
in the case of contracts, other than contracts
distance and contracts negotiated outside
commercial spaces
(1) Before a contract, other than a distance contract or a contract negotiated away from business premises, or any similar offer, has binding effects on the consumer, the business shall provide the consumer with the following information in a clear and intelligible manner, unless it is obvious from the context:
a) the main characteristics of the goods or services, in accordance with the means of communication used and the goods or services in question;
b) the full or abbreviated name, in Romanian, and the state identification number (IDNO) of the legal person business or, respectively, the surname, first name and state identification number (IDNP) of the natural person business, as well as the address of the registered office and the telephone number;
c) the total price of the goods or services, including all taxes, or, where the price cannot reasonably be calculated in advance given the nature of the goods or services, the method of calculating the price and, where appropriate, all additional transport, delivery or postal costs or, where these cannot reasonably be calculated in advance, a statement that these additional costs may be borne by the consumer;
d) where applicable, the payment, delivery and performance arrangements, the date by which or the period within which the business undertakes to deliver the goods or provide the services, including the standard delivery period set out in art. 863 paragraph (1) letter a), and the business’s complaints handling policy;
e) in addition to a mention of the existence of a legal guarantee of conformity for the goods, a mention of the existence of after-sales services and commercial guarantees, as appropriate, as well as the conditions relating to them (in particular, the address of the premises where the after-sales services are provided and who bears the transport costs, if applicable);
f) the duration of the contract or, for a contract with an indefinite duration or a contract to be extended by right, the conditions of termination;
g) where applicable, functionality, including the application of technical protection measures for digital content;
h) where applicable, any relevant interoperability of the digital content with hardware and software components about which the business has information or about which he can reasonably be assumed to have information.
(2) The provisions of paragraph (1) shall also apply to contracts for the supply of public water and sewerage services, natural gas and electricity, when these are not put up for sale in a limited volume or in a pre-established quantity, contracts for the supply of thermal energy or contracts for the supply of digital content that is not delivered on a material medium.
(3) The provisions of paragraph (1) shall not apply to contracts for current needs that are executed immediately, at the moment they are concluded.
(4) The information referred to in paragraph (1) shall form an integral part of the contract and may not be modified unless the contracting parties explicitly decide otherwise.
Article 1015. Information content requirements
in the case of distance contracts and
those negotiated outside the premises
trader
(1) Before a distance contract or an off-premises contract or any similar offer becomes binding on the consumer, the business must provide the consumer with the following information in a clear and intelligible manner:
a) the main characteristics of the goods or services, appropriate to the means of communication used and the goods or services in question;
b) the full or abbreviated name, in Romanian, and the state identification number (IDNO) of the legal person business or, respectively, the surname, first name and state identification number (IDNP) of the natural person business;
c) the address of the business’s registered office, telephone number, fax number and e-mail address, where available, to enable the consumer to contact the business quickly and communicate with him effectively, and, where applicable, the address of the registered office and the identity of the business on whose behalf the intermediary acts;
d) the address of the place where the business carries out his activity, if this is different from the address provided in accordance with letter c), and, where applicable, the postal address of the business on whose behalf the intermediary acts, to which the consumer may send any complaints;
e) the total price of the goods or services, including all taxes, or, where the cost cannot be reasonably calculated in advance given the nature of the goods or services, the method of calculating the price and all additional transport, delivery, postal or other costs or, where these cannot be reasonably calculated in advance, a statement that these additional costs may be borne by the consumer.
In the case of a contract of indefinite duration or a contract that includes a subscription, the total price shall include the total costs during the billing period. If these contracts are charged at a fixed rate, the total price shall also include the total monthly costs. If the total cost cannot be calculated in advance, the method of calculating the price must be indicated;
f) the cost of using means of distance communication for the purpose of concluding the contract, when it is calculated on the basis of a tariff other than the basic tariff;
g) the payment, delivery, performance methods, the date by which or the term within which the business undertakes to deliver the goods or provide the services and, where applicable, the complaints resolution procedure carried out by the business;
h) if there is a right of revocation, the conditions, deadline and procedures for exercising that right in accordance with art. 1053 and art. 1062 paragraph (1), as well as the standard revocation form provided for in Annex No. 6 to Law No. 1125/2002 for the implementation of the Civil Code of the Republic of Moldova;
i) where applicable, the fact that the consumer will have to bear the cost of returning the goods in the event of revocation and, for distance contracts, if the goods, by their very nature, cannot normally be returned by post, the cost of returning the goods;
j) if the consumer exercises his right of withdrawal after making a request pursuant to art. 1016 paragraph (3) or art. 1017 paragraph (10), the information that the consumer is obliged to pay the business reasonable costs pursuant to art. 1064 paragraph (6);
k) if the right of withdrawal is not provided for in accordance with the provisions of art. 1065, information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances in which the consumer loses his right of withdrawal;
l) a mention of the existence of a legal guarantee regarding the conformity of the goods;
m) where applicable, the existence and conditions of after-sales assistance provided to the consumer, the services provided after the sale (including the address of the premises where they are provided and who bears the transport costs, if applicable) and commercial guarantees;
n) the existence of relevant codes of conduct, as defined by consumer protection legislation, and how copies of them can be obtained, as appropriate;
o) where applicable, the duration of the contract or, if the contract is concluded for an indefinite period or is to be renewed by right, the conditions of termination;
p) where applicable, the minimum duration of the obligations incumbent on the consumer under the contract;
q) where applicable, the existence and conditions relating to advances (deposits, including the blocking of amounts on the consumer’s card account) or other financial guarantees that must be paid or offered by the consumer at the request of the business;
r) where applicable, functionality, including the application of technical protection measures for digital content;
s) where applicable, any relevant interoperability of the digital content with hardware and software components about which the business has information or about which he can reasonably be assumed to have information;
t) where applicable, the possibility and manner of resorting to an extrajudicial procedure for submitting and resolving complaints, to which the business is subject.
(2) The provisions of paragraph (1) shall also apply to contracts for the supply of public water supply and sewerage services, contracts for the supply of natural gas, contracts for the supply of electricity, when these are not put up for sale in a limited volume or in a pre-established quantity, contracts for the supply of thermal energy and contracts for the supply of digital content which are not delivered on a material medium.
(3) In the case of an open tender, the information referred to in paragraph (1) letters b), c) and d) may be replaced by the equivalent data of the bidder.
(4) The information referred to in paragraph (1) letters h), i) and j) may be provided using the instructions on the exercise of the right of withdrawal provided for in Annex No. 7 to Law No. 1125/2002 implementing the Civil Code of the Republic of Moldova. The business shall be deemed to have complied with the information requirements set out in paragraph (1) letters h), i) and j) if he has provided the consumer with these correctly completed instructions.
(5) The information referred to in paragraph (1) shall form an integral part of the distance contract or the contract negotiated outside business premises and may not be modified unless the contracting parties expressly agree otherwise.
(6) If the business does not meet the information requirements regarding additional fees or other costs, according to paragraph (1) letter e), or regarding the costs related to the return of the goods, according to paragraph (1) letter i), the consumer shall not bear those fees or costs.
(7) The information shall be presented in Romanian, without excluding the right of the business to present it, additionally, in other languages of communication. At the request of the consumer, the business may present the information in a language other than Romanian.
(8) If a provision on the content and manner in which information is to be provided, laid down in the legislation on electronic commerce, conflicts with a provision of this section, the provisions of this section shall apply.
(9) The burden of proof regarding the fulfillment of the information requirements established by this article and by articles 1016 and 1017 lies with the business.
Article 1016. Formal requirements for information
in the case of contracts negotiated in
outside commercial premises
(1) In the case of off-premises contracts, the business must provide the consumer with the information referred to in Article 1015(1) on paper or, if the consumer agrees, on another durable medium. This information shall be legible and written in clear and intelligible language.
(2) The business must provide the consumer with an original copy of the signed contract or confirmation of the contract on paper or, if the consumer agrees, on another durable medium, including, where applicable, confirmation of the consumer’s express prior consent in accordance with the provisions of art. 1065 paragraph (1) letter m).
(3) If the consumer wishes the provision of services or the provision of the public water and sewerage service, the supply of natural gas or the supply of electricity, when these are not put up for sale in a limited volume or in a pre-established quantity, the supply of thermal energy to begin within the revocation period provided for in art. 1054 paragraph (2) and art. 1060 paragraph (1), the business shall request the consumer to make such an express request on a durable medium.
(4) With regard to contracts negotiated outside commercial premises, in which the consumer has expressly requested the services of the business to carry out repair or maintenance work, and the business and the consumer immediately fulfill their obligations, the amount to be paid by the consumer not exceeding the equivalent in lei of 200 euros at the exchange rate of the National Bank of Moldova on that day:
a) the business must provide the consumer with the information referred to in art. 1015 para. (1) lett. b) and c) and information relating to the price or the method of calculating the price, together with an estimate of the total price, on paper or, if the consumer agrees, on another durable medium. The business must provide the information referred to in art. 1015 para. (1) lett. a), h) and k), but may choose not to provide it on paper or on another durable medium if the consumer expressly agrees;
b) the contract confirmation sent in accordance with paragraph (2) of this article must contain the information referred to in art. 1015 paragraph (1).
Article 1017. Formal requirements for information
in the case of distance contracts
(1) In the case of distance contracts, the business must transmit the information provided for in art. 1015 paragraph. (1) or make that information available to the consumer in a manner appropriate to the means of distance communication used, using clear and intelligible language. To the extent that that information is presented on a durable medium, it shall be legible.
(2) If a distance contract to be concluded by electronic means obliges the consumer to pay sums, the business must bring to the consumer’s attention in a clear and highly visible manner, immediately before the latter places the order, the information provided for in art. 1015 para.(1) lett. a), e), o) and p). In the case of contracts concluded through web pages, the said information shall be displayed in the immediate vicinity of the confirmation requested for placing the order.
(3) The business must ensure that the consumer has the possibility to determine the moment when he assumes the obligation to pay the business. To this end, the consumer’s attention is specifically drawn, in an unambiguous wording, to the fact that the placing of the order entails the obligation to pay the business.
(4) If a button or similar function needs to be activated in order to place the order, the button or similar function shall be labelled in a legible manner only with the words “Order with payment obligation” or “Buy now”, or “Pay now”, or “Confirm purchase”, or another appropriate unambiguous wording indicating that placing the order implies the obligation to make a payment to the trader. If the trader infringes the provisions of this paragraph, the consumer shall have no obligation under the contract or the order.
(5) The web pages through which electronic commerce is carried out must indicate clearly and legibly, at the latest at the beginning of the order process, whether any restrictions apply with regard to delivery and which payment methods are accepted.
(6) Where the contract is concluded by means of distance communication which allows a limited space or time for the display of the information, the business must provide, through that means of communication, before the conclusion of the contract, at least the information referred to in points (a), (b), (e), (h) and (o). The other information referred to in point (1) of Article 1015 must be provided to the consumer by the business in an appropriate manner, in accordance with the provisions of point (1) of this Article.
(7) Without prejudice to the provisions of paragraph (6), where the business telephones the consumer with a view to concluding a distance contract, the business must present his identity at the beginning of the conversation with the consumer, if applicable, present the identity of the person on whose behalf he is telephoning and specify the commercial purpose of the call.
(8) Where a distance contract is to be concluded by a telephone call initiated by the trader, the trader must confirm the offer made to the consumer, whose commitment begins only after he has signed the offer or sent his written consent. These confirmations must be made on a durable medium.
(9) The business must send the consumer confirmation of the conclusion of the contract, on a durable medium, within a reasonable time from the moment of conclusion of the distance contract and at the latest at the time of delivery of the goods or before the start of the provision of the requested service.
That confirmation must include:
a) the information referred to in art. 1015 paragraph (1), unless the business has already transmitted that information to the consumer, on a durable medium, before the conclusion of the distance contract; and
b) where applicable, confirmation of the consumer’s prior express agreement with regard to the offer and confirmation pursuant to art. 1065 para. (1) letter m).
(10) If the consumer wishes the provision of services or the provision of the public water and sewerage service, the supply of natural gas or the supply of electricity, when these are not put up for sale in a limited volume or in a pre-established quantity, the supply of thermal energy to begin within the revocation period provided for in art. 1054 paragraph (2) and art. 1060 paragraph (1), the business shall request the consumer to make an express request to this effect.
(11) This Article shall be without prejudice to the provisions on the conclusion of contracts and the placing of orders by electronic means, laid down in the legislation on electronic commerce.
(12) In the context of a subscription contract for the supply of digital content which is not supplied on a tangible medium, each individual supply of digital content made from the subscription account shall not be considered a new contract within the meaning of this section.
(13) Where the digital content includes additional integrated purchase options, the trader must inform the consumer, before the purchase of the digital content, that such additional purchase options may be offered to him, including the payment methods for such additional purchases. In such cases, the trader must request, in accordance with the provisions of Article 880(4), the consumer’s explicit consent to any additional payment in addition to the previously agreed payment, which is intended to remunerate the trader’s main contractual obligation. The default payment settings must not allow additional purchases without the consumer’s explicit consent. If the system provides for time periods during which the validity of the authentication for the purpose of making additional integrated purchases is maintained, the trader cannot automatically apply the default settings, but must request the consumer’s explicit consent to the applicable time period.
Article 1018. Scope of application
(1) This section applies, under the conditions and within the limits established by its provisions, to any contract concluded between a business and a consumer, including contracts for the provision of public water supply and sewerage services, contracts for the supply of natural gas, contracts for the supply of electricity and contracts for the supply of heat, to the extent that these utilities are provided on a contractual basis.
(2) This section does not apply to the following types of contracts:
a) contracts for the provision of social services, including social accommodation, childcare and support for families and individuals in order to overcome situations of difficulty;
b) contracts having as their object health services oriented towards the population’s health protection and recovery needs, carried out through the use of business medical and pharmaceutical knowledge;
c) contracts having as their object games of chance, which involve betting on a pot of pecuniary value, including lotteries, casino games and betting-type transactions;
d) contracts relating to financial services;
e) contracts for the acquisition or transfer of rights over immovable property, except for contracts for the services of real estate agents and those for the rental of premises for non-residential purposes;
f) contracts having as their object the construction of new buildings, the substantial transformation of existing buildings or the rental of housing for residential purposes, except those concerning the construction of annexes to buildings and those concerning the repair and renovation of buildings;
g) contracts regarding package travel services;
h) contracts regarding periodic accommodation, regarding long-term holiday products, contracts for the intermediation of holiday products and for the intermediation of participation in an exchange system;
i) contracts that are authenticated, either by virtue of the law or at the request of the parties, by a notary who must ensure, by providing comprehensive legal information, that the conclusion of the contract occurs only after the consumer has carefully analyzed the legal aspects and has become aware of its legal scope;
j) contracts having as their object the supply of food, beverages or other goods for daily household consumption, physically delivered by a business who travels frequently or periodically to the consumer’s domicile, temporary residence or workplace;
k) contracts for the provision of passenger transport services, with the exception of the provisions of art. 1017 para. (2)-(4);
l) contracts concluded through vending machines or automated commercial premises;
m) contracts concluded with providers of electronic communications services through public pay phones, for their use, or concluded for the use of a single connection via telephone, internet or fax, established by a consumer.
(3) This section shall not apply to contracts negotiated away from business premises where the payment to be made by the consumer does not exceed the equivalent in lei of 10 euros at the exchange rate of the National Bank of Moldova on that day. Where the consumer concludes two or more contracts with related objects at the same time, the total cost shall be taken into account when applying that threshold.
(4) This section does not affect the rules regarding the validity, conclusion or effects of contracts regulated by other legislative acts, to the extent that these aspects are not regulated by this section.
(5) This section does not prevent the business from offering more advantageous contractual conditions to the consumer.
(6) This section does not apply to the transfer of rights and obligations held by a consumer under a contract concluded with a business to another consumer.
(7) For the purposes of this section, contracts for the provision of public water supply and sewerage services, contracts for the supply of natural gas and contracts for the supply of electricity, when they do not provide for the sale in a limited volume or in a pre-established quantity, contracts for the supply of thermal energy and contracts for digital content that is not delivered on a material support shall not be considered either sales contracts or service contracts.
(8) This section shall not apply to digital content which is not supplied on a tangible medium and which is provided free of charge by means of the dissemination of information on the internet, without the express conclusion of a contract. Free access to a web page or a free download from a web page shall not be considered a contract within the meaning of this section.
(9) The fact that a contract may include the option to conclude subsequent contracts or a free trial period does not essentially change the nature of the contract.
Article 1019. Rights in case of non-performance
of information obligations
(1) The business shall be responsible for demonstrating that he has fulfilled the requirements of the provisions of Articles 1015-1017. This rule shall not apply in proceedings for criminal or contraventional liability.
(2) If a business has breached one of the obligations imposed by the provisions of art. 1011-1018, and the contract has been concluded, the business shall bear the contractual obligations as the other party reasonably understood them due to the absence of information or its incorrectness. In the event of non-performance of these contractual obligations, the consumer may have recourse to the legal remedies available to the creditor under art. 901-946.
(3) Regardless of whether the contract has been concluded or not, the business who has failed to fulfil one of the obligations provided for in Articles 1011-1017 shall be liable to the entitled person for the damage caused by that failure. However, if the contract has been concluded and the entitled person has grounds to claim compensation for the damage caused by that failure on the basis of the provisions of Articles 901-946, then the provisions of this paragraph shall not apply.
(4) The rights of the entitled person provided for in this article do not prevent the exercise of the right to cancel the contract based on the provisions of art. 339.
(5) Any clause contrary to the provisions of articles 1011-1018 and this article to the detriment of the consumer is absolutely null and void.
Section 3
Specific obligations in the case of concluded contracts
by electronic means
Article 1020. Obligation to inform in the event of
conclusion of the contract through
electronic means
(1) If a contract is to be concluded by electronic means, the business shall, before the other party makes or accepts the offer, provide information on the following:
a) the technical steps to be followed to conclude the contract;
b) whether the business will generate a document representing the contract and whether the document will be accessible;
c) technical means for identifying and correcting errors made in data entry before the other party makes or accepts the offer;
d) the languages in which the contract can be concluded;
e) all contractual clauses.
(2) The business must guarantee the provision of the contractual clauses referred to in paragraph (1) letter e) in textual form.
(3) If the business has not fulfilled the obligation provided for in paragraph (1) of this article and, in such circumstances, a contract has been concluded, the consumer has the right to revoke the contract, notifying the business within the period specified in art. 1054.
(4) The business is liable to the other party for the damage caused by the failure to fulfill the obligation provided for in paragraph (1).
(5) Clauses that have not been individually negotiated may be included by one of the following methods:
a) the clauses are presented to the other party in textual form before it is allowed to conclude the contract, and it gives its express consent to the applicability of the clauses and, finally, concludes the contract;
b) the other party is informed of the existence of the clauses and is given a clearly identifiable opportunity to access the clauses before being allowed to conclude the contract and, ultimately, to conclude the contract.
Article 1021. Correction of content errors
(1) The business who intends to conclude a contract by making available electronic means for its conclusion has the obligation to make available to the other party adequate, effective and accessible technical means for identifying and correcting errors made when entering data before the other party makes an offer or accepts an offer.
(2) If a party concludes a contract in error, due to the business’s failure to fulfil the obligation provided for in paragraph (1) of this article, the business shall be liable to that person for the damage caused by this failure. This shall not prevent the exercise of a right based on the provisions of art. 339.
Article 1022. Confirmation of receipt
(1) The business who offers the possibility of concluding the contract by electronic means is obliged to confirm, by electronic means, that he has received the offer or acceptance from the other party.
(2) If the other party does not receive confirmation without undue delay, it may revoke its offer or, as the case may be, may revoke the contract.
(3) The business is liable to the other party for the damage caused by the failure to fulfill the obligation provided for in paragraph (1).
Article 1023. Scope and mandatory nature
(1) The provisions of this section do not apply if the contract is concluded by electronic mail or other means of individual communication.
(2) The provisions of this section do not exclude or limit the obligations of the business provided for by other legal provisions to provide other information to the other party.
(3) Any clause contrary to the provisions of this section to the detriment of the consumer shall be absolutely null and void.
Section 4
Unsolicited benefits
Article 1024. Non-occurrence of obligations in case of absence
of the answer
(1) If a business supplies goods, works, services, digital content or other services to a consumer unsolicited by the consumer:
a) no contract is considered concluded between them based on the circumstance that the consumer did not respond or committed another action or inaction with these benefits and no obligation to pay for them arises for the consumer;
b) no non-contractual obligation arises between them based on the circumstance that the consumer acquired, retained, rejected or used the services;
c) by way of derogation from letter a), the consumer may consider that he received the service as an unconditional donation from the business.
(2) The provisions of paragraph (1) letters b) and c) shall not apply if the goods, works, services, digital content or other services were supplied to the consumer:
a) under the conditions of business management without a mandate; or
b) due to error or in other circumstances in which the obligation of restitution based on unjust enrichment arises.
(3) The provisions regarding the supply in a quantity exceeding the quantity agreed in the sales contract shall apply with priority over the provisions of this article.
(4) For the purposes of applying the provisions of paragraph (1), supply occurs when the consumer obtains physical control over the service or its result.
(5) Any clause contrary to the provisions of this article to the detriment of the consumer is absolutely null and void.
Section 5
The obligation within the negotiation and the obligation
of confidentiality
Article 1025. Negotiating contrary to good faith
(1) The person is free to negotiate and is not liable solely for the fact that an agreement was not reached.
(2) The person who is engaged in negotiations has the obligation to negotiate in good faith and not to break off the negotiations contrary to good faith. Any clause which excludes or limits this obligation is absolutely null and void.
(3) The person who breaches this obligation is liable to the other person for the damage suffered on the basis of the belief that the contract would have been concluded. However, the compensation shall not cover the profit that the other person expected from the conclusion of the contract. If the person acted with intent or gross negligence, the compensation shall also cover the other person’s loss of a reasonable opportunity to conclude a contract with a third party.
(4) In particular, it is contrary to good faith for a person to commence or continue negotiations without the real intention of reaching an agreement with the other person.
(5) The person who participated in a tender, contest or other competitive selection for the award of a contract is also entitled to compensation for the damage if the organizer, in violation of the rules governing the selection, awarded the contract to another participant instead of that person.
(6) The provisions of this article do not prevent the conclusion between businesss of arrangements regarding the manner of conducting negotiations and their termination.
Article 1026. Obligation of confidentiality
(1) If during negotiations a person provides confidential information, the person who received it has the obligation not to disclose that information nor to use it for his own purposes, regardless of whether the contract has been concluded or not.
(2) Confidential information means information which, by reason of its nature or the circumstances in which it was obtained, the party who received the information knew or should reasonably have known that it was confidential to the person who provided it. In particular, confidential information is information which constitutes a trade secret within the meaning of the legislation on the protection of trade secrets.
(3) Information provided by a business to the consumer cannot be considered confidential if the business has not previously notified the consumer of the confidential nature of specific information.
(4) The person who, on reasonable grounds, anticipates the violation of the obligation provided for in this article has the right to obtain, through legal proceedings, the prohibition of the violation.
(5) The party that violates the obligation provided for in this article shall be liable to the other party for the damage caused by the violation, and, under the terms of the law, may be required to hand over to the other party the profit obtained from the violation.
Chapter III
CONCLUSION OF THE CONTRACT
Article 1027. Agreement on essential clauses
of the contract
(1) The contract is considered concluded if the parties have reached an agreement on all its essential clauses.
(2) The essential clauses are those that are established as such by law, that arise from the nature of the contract or on which, at the request of one of the parties, an agreement must be reached.
Article 1028. Form of the contract
If the law establishes a certain form for the validity of the contract or if the parties have provided for a certain form, the contract is considered concluded when the formal condition is met.
Article 1029. Offer
(1) An offer to contract is a proposal, addressed to one or more persons, which contains all the essential clauses of the future contract and which reflects the offeror’s will to be bound by accepting the offer.
(2) The offer is effective only if it has reached the recipient before being revoked.
(3) A proposal addressed to an undetermined circle of persons (public offer) is a call for an offer if this proposal does not contain any express manifestation of the will to be bound by acceptance.
(4) The offer must be firm, unambiguous, serious and complete.
Article 1030. Validity of the offer
(1) The validity of the offer does not depend on the form in which it was made.
(2) The offer is valid, void or voidable according to the provisions applicable to the juridical act.
Article 1031. Revocation of the offer
(1) An offer may be revoked unless it includes a time limit for acceptance or is irrevocable on other grounds.
(2) The offer, even if irrevocable, may be revoked if the revocation reaches the recipient of the offer at the latest simultaneously with the offer.
(3) The offer received by the addressee may not be revoked within the acceptance period established in the offer or, if this period is not established or is unreasonably short, within the period necessary for the addressee to express acceptance and for the response to reach the offeror according to the circumstances of the case, the practice established between the parties and usages.
(4) If, according to the law, the consumer has the right to revoke a certain type of contract, the offer made by the consumer to conclude such a contract is always revocable. Any clause contrary to the provisions of this paragraph to the detriment of the consumer is struck by absolute nullity.
Article 1032. Irrevocable offer
A stipulation by which a party obliges itself to enter into a certain contract with another party, at the latter’s request, constitutes an irrevocable offer.
Article 1033. Validity in case of death or
loss of exercise capacity
The offer does not lose its validity upon the death or loss of capacity of a party, nor if one of the parties loses the right to conclude contracts as a result of the transmission of its property under administration to another person.
Article 1034. Expiration of the offer
The offer becomes void if it has not been accepted within the deadline or if it is rejected.
Article 1035. Acceptance
(1) Acceptance shall be deemed to be the declaration of the offeree or any other action which attests to the offer’s consent. Acceptance shall be effective from the moment it is received by the offeror.
(2) If, by virtue of the offer, the practice established between the parties and usages, the acceptor can manifest his consent by performing certain actions without notifying the offeror, the acceptance takes effect from the moment the actions are performed.
Article 1036. Acceptance of the offer without a deadline
(1) An offer made to a person present may only be accepted on the spot. This rule also applies if the offer is made person to person by means of instant communication.
(2) An offer made to an absent person may be accepted only until the moment when the offeror can expect, under normal conditions, taking into account the means of communication used by the offeror, the arrival of the response.
Article 1037. Acceptance of the offer with a term
If the offeror has set a deadline for accepting the offer, acceptance can only be made within the deadline.
Article 1038. Commencement of the term for
acceptance of the offer
The time limit for acceptance of the offer set by the offeror by telegram or letter shall begin to run from the date on which the telegram was handed over for dispatch or from the date mentioned in the letter or, if such date is missing, from the date on the envelope. The time limit for acceptance of the offer set by means of instant communication shall begin to run from the date on which the offer reaches the addressee.
Article 1039. Late acceptance or with modifications
(1) Late acceptance of the offer is considered a new offer.
(2) Acceptance made with modification of the terms of the offer is considered a new offer and a rejection of the original offer.
(3) A response accepting the offer and presenting additional or different conditions that do not substantially affect the terms of the offer constitutes an acceptance unless the offer expressly provides that no additional or different conditions will be accepted and unless the offeror objects to them without undue delay. If the offeror does not object, the contract is concluded under the terms of the offer, with the modifications contained in the acceptance.
Article 1040. Validity of late acceptance
(1) Late acceptance takes effect if the offeror promptly communicates to the acceptor that he considers the acceptance to have arrived on time.
(2) If the acceptance of the offer reaches the offeror late and if it appears from the acceptance that it was sent on time, it is considered late only if the offeror immediately communicates the fact of the delay to the other party.
Article 1041. Acceptance with modifications in the relations
among businesss
If in relationships between businesss the acceptance is made with extensions or modifications, the contract is considered concluded when the acceptor can count on the offeror’s agreement, and the offeror does not refuse without delay.
Article 1042. Tacit acceptance
(1) Silence and inaction do not constitute acceptance unless otherwise indicated by law, the practice established between the parties, and usage.
(2) If a business whose activity consists in the marketing of certain goods receives an offer for such goods from another business with whom he is in business relations, the business is obliged to respond without delay, his silence being considered acceptance of the offer. Even when he rejects the offer, the business is obliged to temporarily protect, at the expense of the business offerer, the goods sent by the latter, to the extent that he can bear the necessary expenses and does not suffer any disadvantage thereby.
Article 1043. Revocation of acceptance
The acceptance of the offer is considered revoked if the notice of revocation reaches the offeror before or simultaneously with the acceptance.
Article 1044. The document confirming the conclusion of the contract
Additional conditions or modified conditions in a document sent within a reasonable time from the date of conclusion of the contract between businesss which aims to confirm it become part of the contract, unless they substantially modify it or the party receiving it rejects them without undue delay.
Article 1045. Multilateral contract
(1) If it is to be concluded between three or more parties, the contract is not considered concluded until all its parties have expressed their consent, except in cases where a previous contract between all those parties or the law authorizes certain parties to conclude the contract in such a way that it will become binding on all parties.
(2) The provisions of paragraph (1) shall apply accordingly to the contract amending or terminating the multilateral contract.
Article 1046. Conclusion of the contract at the auction
In an auction, the contract is concluded by award. A bid is extinguished as soon as an overbid is issued or the auction closes without an award being made.
Article 1047. Time and place of conclusion of the contract
(1) The contract is considered concluded upon receipt of acceptance by the offeror.
(2) If the place of conclusion is not indicated in the contract, it is considered concluded at the domicile or headquarters of the bidder.
Article 1048. Recognition of the obligation
(1) For the validity of a contract recognizing the existence of an obligation, a written declaration of recognition is required.
(2) If the authentic form is prescribed for the establishment of the obligation whose existence is recognized, the declaration of recognition must be made in this form.
(3) If the obligation is recognized on the basis of a settlement or offset, compliance with the form is no longer necessary.
Article 1049. Conflicting standard clauses
(1) If the parties have reached an agreement, but both the offer and the acceptance refer to the standard terms of that party, the contract is nevertheless deemed to have been concluded. The standard terms form part of the contract to the extent that the standard terms of one party do not conflict with the standard terms of the other party.
(2) However, the contract shall be deemed not to have been concluded if one of the parties:
a) has indicated in advance, expressly, and not only by means of a standard clause, the intention not to be bound by the contract if the circumstance provided for in paragraph (1) occurs; or
b) inform the other party of this intention without undue delay.
Article 1050. The integrality clause and the clause
regarding the written amendment
(1) A written contract that includes an individually negotiated clause and stipulates that the document contains all the conditions agreed upon by the parties (completeness clause) cannot be challenged or supplemented by evidence of previous statements or agreements.
(2) If not individually negotiated, the integrality clause establishes only a presumption that the parties intended that the previous declarations and agreements could not be invoked. Any clause to the contrary is struck by absolute nullity.
(3) These declarations or agreements may nevertheless be used for the interpretation of the document. Any contrary clause is absolutely null and void unless it has been individually negotiated.
(4) A written contract containing a clause stipulating that all amendments or termination shall be made in writing (written amendment clause) establishes only a presumption that it cannot be amended or terminated otherwise than in compliance with this form.
(5) The conduct of a party may nevertheless deprive it of the right to invoke the clause of completeness or written modification if the other party has acted in accordance with this conduct.
Article 1051. Contracts that are not concluded
by offer and acceptance
The provisions of this chapter shall apply accordingly even if the process of concluding the contract cannot be analyzed as an exchange of offer and acceptance.
Chapter IV
RIGHT TO WITHDRAWAL FROM THE CONTRACT
Section 1
Exercise and effect
Article 1052. Scope and mandatory nature
(1) The provisions of this section shall apply in cases where, pursuant to a legal provision, the consumer has the right to cancel the contract.
(2) The provisions of this section shall apply to the extent that the special provisions regarding the right of withdrawal of certain types of contracts concluded with consumers do not provide otherwise.
(3) Any clause contrary to the provisions of this chapter to the detriment of the consumer is absolutely null and void.
(4) The provisions of this chapter do not prevent the business from offering contractual conditions to the consumer that exceed the level of protection ensured by law.
Article 1053. Exercise of the right of revocation
(1) The right of revocation shall be exercised by notifying the business. The consumer is not obliged to justify the decision to revoke.
(2) The statement by which the consumer expresses his decision to withdraw from the contract may refer explicitly to the decision to withdraw or to other similar unambiguous wording, as long as the consumer and the contract in question are identifiable. The mere return of the goods or the refusal to accept delivery or the failure to collect the goods from the post office, without an unambiguous statement to that effect, shall not be considered a valid exercise of the right of withdrawal.
Article 1054. Term of revocation
(1) The right of revocation may be exercised at any time after the conclusion of the contract, but before the expiration of the revocation period.
(2) Unless otherwise provided by law, the revocation period is 14 days and begins to run from the date of conclusion of the contract.
(3) The revocation notification is considered to have been made within the deadline if it was sent before the expiration of the revocation deadline.
(4) The burden of proof regarding the exercise of the right of withdrawal in accordance with the applicable provisions of this chapter lies with the consumer.
Article 1055. Adequate information regarding the right
of revocation
(1) The business is deemed to have transmitted to the consumer the information regarding the right of revocation if the right of revocation is duly brought to the consumer’s attention, and the information provides, in textual form on a durable medium and in clear and understandable language, data on the manner of exercising the right, the revocation deadline, the name and address of the person to whom the revocation must be communicated.
(2) However, in the case of a distance contract or a contract negotiated outside business premises, the business must provide the consumer with the information on the right of withdrawal provided for in art. 1015 para. (1) letter h).
Article 1056. Effects of revocation
(1) Revocation has the effect of termination, extinguishing the obligations of both parties resulting from the contract.
(2) Revocation does not generate any cost or liability for the consumer, with the exceptions expressly provided for by law.
(3) If the consumer has placed an order (offer) or a preliminary contract has been concluded, the revocation extinguishes the obligations of both parties to conclude the contract based on that order (offer) or, as the case may be, preliminary contract.
(4) The provisions of Articles 925-932 regarding the effects of the resolution shall apply to the extent that they do not contradict the provisions of this chapter.
Article 1057. Obligations of the business in the event of revocation
(1) The business is obliged to refund all amounts received from the consumer, including, where applicable, those covering the costs of delivery of the goods by the consumer, without undue delay and, in any case, no later than 14 days from the date on which he is informed of the consumer’s decision to withdraw from the contract.
(2) The business must refund the amounts referred to in paragraph (1) in the same currency in which he received them from the consumer, using the same payment methods as those used by the consumer for the initial payment, unless the consumer has explicitly agreed to another payment method and provided that the consumer is not liable for the payment of commissions following the refund. The refund obligation does not apply to bank commissions paid by the consumer for the payment of the respective amounts to the business, as well as to losses incurred by the consumer in connection with the conversion of the amounts received into another currency, if the consumer’s bank account is in a currency other than that in which the initial payment and refund were made.
Article 1058. Related contracts
(1) The exercise by the consumer of the right of revocation also has the effect of the legal termination of the contract related to the contract being revoked.
(2) The contract to be revoked shall be considered to be related to the contract by which the consumer obtains goods, works, services, digital content or other services related to the contract to be revoked if these services are provided:
a) by the same business; or
b) by a third party, based on an agreement between that third party and the same business.
(3) The contract to be revoked shall be considered to be linked to the credit agreement through which the consumer obtains credit intended exclusively for financing the payment obligations, in whole or in part, resulting from the contract to be revoked if these contracts form, from an objective point of view, a commercial unit.
(4) For the purposes of paragraph (3), contracts shall be deemed to form a commercial unit if:
a) the business himself is also a creditor;
b) being a person other than the business, the creditor, on the basis of an agreement, uses the services or collaboration of the business for the conclusion of the credit agreement or its preparation; or
c) the credit agreement expressly specifies the object of the agreement to be revoked.
(5) The existence of the agreement referred to in paragraph (2) letter b) and paragraph (4) letter b) between the third party and the business shall be presumed until proven otherwise.
(6) If the consumer informs the business about the revocation of the contract, he is obliged to inform, within a reasonable period, the third-party businesss with whom the consumer has concluded contracts related to the revoked contract, about the fact that the contract has been rescinded in accordance with paragraph (1).
(7) The provisions of articles 1056 and 1057 shall apply accordingly to the resolution of related contracts.
(8) For the purposes of paragraph (3), credit agreement means any consumer credit agreement that falls within the scope of Law no. 202/2013 on consumer credit agreements.
Section 2
Right to revoke the distance contract
or the contract negotiated outside the premises
trader
Article 1059. Right to revoke the contract
distance or negotiated contract
outside commercial premises
(1) Under the conditions of this section and, in addition, of section 1, the consumer has the right to revoke the distance contract or the contract negotiated away from business premises, with the exception of contracts excluded from the scope set out in art. 1018. However, contracts relating to financial services may constitute linked contracts within the meaning of art. 1058.
(2) The definitions provided for in Article 1013 shall also apply to the terms used in this section.
Article 1060. Term of revocation
(1) Without prejudice to the provisions of art. 1061, the revocation period is 14 days and begins to run:
a) in the case of service contracts, from the day following the date of conclusion of the contract;
b) in the case of sales contracts, from the day on which the consumer or a third party, other than the carrier and indicated by the consumer, takes physical possession of the goods or obtains control over the goods in accordance with art. 1159 paragraph (1);
c) if the consumer orders multiple goods in a single order that will be delivered separately, from the day on which the consumer or a third party, other than the carrier and indicated by the consumer, takes physical possession of the last good;
d) in the case of the delivery of a good consisting of several lots or pieces, from the day on which the consumer or a third party, other than the carrier and indicated by the consumer, takes physical possession of the last lot or the last piece;
e) in the case of contracts for the periodic delivery of goods for a specified period of time, from the day on which the consumer or a third party, other than the carrier and indicated by the consumer, takes physical possession of the first good;
f) in the case of contracts for the provision of public water supply and sewerage services, contracts for the supply of natural gas and contracts for the supply of electricity, when they do not provide for the sale in a limited volume or in a pre-established quantity, contracts for the supply of thermal energy or for the supply of digital content that is not delivered on a material support, from the date of conclusion of the contract.
(2) In the case of sales contracts, the consumer may exercise his right of revocation even before acquiring physical possession of the goods.
(3) The provisions of this section do not prevent the contracting parties from fulfilling their contractual obligations during the revocation period.
(4) If the consumer concludes a distance contract or an off-premises contract for multiple goods, he has the right to revoke the contract only in full, for all the goods that are the subject of it, unless the parties agree otherwise.
Article 1061. Omission of information regarding the right
of revocation
(1) If the business has not sent the consumer the information on the right of revocation in accordance with art. 1015 paragraph (1) letter h), the revocation period expires 12 months after the end of the initial revocation period established in accordance with the provisions of art. 1054 paragraph (2) and art. 1060 paragraph (1).
(2) If the business has sent the consumer the information provided for in paragraph (1) of this article within 12 months from the date referred to in art. 1054 paragraph (2) and art. 1060 paragraph (1), the revocation period expires within 14 days from the date on which the consumer receives that information.
Article 1062. Exercise of the right of revocation
(1) For the purpose of notifying the business about the exercise of the right of revocation, the consumer has the possibility:
a) to use the standard form provided for in Annex No. 6 to Law No. 1125/2002 on the implementation of the Civil Code of the Republic of Moldova; or
b) to make any other unequivocal notification expressing their decision to revoke the contract.
(2) The business has the right to grant the consumer, in addition to the possibilities mentioned in paragraph (1), the option of completing and transmitting, in electronic format, on the business’s website, either the standard revocation form provided for in Annex No. 6 to Law No. 1125/2002 for the implementation of the Civil Code of the Republic of Moldova, or another unambiguous statement made available by the business. In these cases, the business must communicate to the consumer, without delay, on a durable medium, confirmation of receipt of the revocation form. If the statement made available on the business’s website requests other additional information from the consumer, the additional questions will be presented separately, it being possible to transmit the statement without providing answers to such questions.
Article 1063. Special provisions regarding obligations
to the business in case of revocation
(1) Without prejudice to the provisions of Article 1057, the business is not obliged to reimburse the additional costs if the consumer has explicitly chosen a type of delivery other than the standard delivery offered by the business.
(2) Unless the business has offered to recover the goods himself, in the case of sales contracts, the business may suspend the refund until the date of receipt of the goods that were the subject of the sale or purchase or until the moment of receipt of proof from the consumer that he sent the goods to the business, taking into account the earliest date.
Article 1064. Consumer obligations in the event of
revocation of the contract
(1) Unless the trader has offered to collect the goods himself, the consumer must send back the goods or hand them over to the trader or to a person authorised by the trader to collect the goods, without undue delay and not later than 14 days from the date on which he communicated his decision to withdraw from the contract to the trader. The deadline shall be deemed to have been met if the goods are sent back by the consumer before the expiry of that 14-day period.
(2) The consumer shall bear only the direct costs of returning the goods, unless the trader agrees to bear those costs or the trader has not informed the consumer of his obligation to bear those costs. The direct costs of returning the goods shall not include the administrative, handling or storage costs incurred by the trader in connection with the return of the goods.
(3) In the case of off-premises contracts under which the goods are delivered to the consumer’s home at the time of conclusion of the contract, the business shall take over the goods at his own expense if, by their nature, they cannot normally be returned by post.
(4) The consumer is liable only for any diminution in the value of the goods resulting from their handling, other than that necessary to determine the nature, characteristics and functioning of the goods. In order to determine the nature, characteristics and functioning of the goods, the consumer is obliged to handle and inspect them with the necessary care, in the same way as he would be allowed to do so in a commercial premises. Determining the functioning of the goods does not imply establishing that the goods are free from any material defects. Damage to the packaging by simply opening it does not serve as a basis for compensation if similar goods are usually displayed without packaging in the commercial premises of the business.
(5) The business has the right to reduce the amount refunded to the consumer, in accordance with art. 1057, to cover the diminution in value of the good resulting from its improper handling, other than that necessary to determine the nature, characteristics and functioning of the good, within the period for exercising the right of revocation. Regardless of the situation, the consumer is not liable for the diminution in value of the good if the business has failed to inform him of the right of revocation in accordance with art. 1015 para. (1) lett. h).
(6) Where the consumer exercises his right of withdrawal after submitting the request in accordance with Article 1016(3) or Article 1017(10), he must pay the business an amount proportional to what was provided up to the time when the consumer informed the business of the exercise of the right of withdrawal in relation to the total of the services provided for in the contract. The proportional amount to be paid to the business by the consumer is calculated on the basis of the total price agreed in the contract. If the consumer demonstrates that the total price is excessive, the proportional amount is calculated on the basis of the market value of what was provided. The market value is established by comparison with the price of an equivalent service provided by other businesss at the time of conclusion of the contract.
(7) In the case of contracts having as their object both goods and services, the legal provisions regarding the return of goods shall apply to the aspects related to goods, and the compensation regime for services shall apply to the aspects related to services.
(8) The consumer does not bear the costs for:
1) the provision of public water supply and sewerage services, natural gas supply and electricity supply, when these are not put up for sale in a limited volume or in a pre-established quantity, nor for the supply of thermal energy, in whole or in part, during the revocation period if:
a) the business did not provide him with information in accordance with the provisions of art. 1015 para. (1) letter h) or j); or
b) the consumer has not expressly requested that the performance begin during the revocation period pursuant to art. 1016 para. (3) and art. 1017 para. (10);
2) the supply, in whole or in part, of digital content that is not supplied on a tangible medium if:
a) the consumer has not given his express prior consent to the commencement of performance within the 14-day period referred to in art. 1060;
b) the consumer has not confirmed that he loses his right of withdrawal at the time he gives his consent; or
c) the business has not provided the confirmation in accordance with the provisions of art. 1016 paragraph (2) or art. 1017 paragraph (9).
(9) Except as provided for in art. 1057 and this article, the exercise of the right of revocation shall not entail any cost or liability for the consumer.
Article 1065. Exceptions to the right of revocation
(1) The following types of contracts are exempt from the right of withdrawal provided for in the provisions of this section with regard to distance contracts and contracts negotiated outside business premises:
a) service contracts, after the complete performance of the services, if the performance began with the express prior consent of the consumer and after he confirmed that he was aware of the fact that he will lose his right to revocation once the contract has been fully executed by the business;
b) contracts for the supply of goods or services whose cost depends on fluctuations in the financial markets, which the business cannot control and which may occur during the revocation period;
c) contracts for the supply of goods that are not prefabricated, being made based on individual choices or the consumer’s decision or clearly personalized;
d) contracts for the supply of goods that are susceptible to deterioration or expire quickly;
e) contracts for the supply of sealed goods, which cannot be returned for health protection or hygiene reasons and which have been unsealed by the consumer;
f) contracts for the supply of goods which, after delivery, are, according to their nature, inseparably mixed with other elements;
g) contracts for the supply of alcoholic beverages whose price was agreed upon at the time of conclusion of the sales contract, whose delivery cannot be made before 30 days and whose real value depends on market fluctuations that the business cannot control;
h) contracts where the consumer has expressly requested the business to travel to his home to carry out urgent repair or maintenance work. If, on the occasion of such a visit, the business provides other services, other than those expressly requested by the consumer, or supplies goods other than the spare parts indispensable for carrying out the repair or maintenance work, the right of withdrawal applies to those additional services or goods;
i) contracts for the supply of sealed audio or video recordings or sealed computer programs that have been unsealed after delivery;
j) contracts for the supply of newspapers, magazines and other periodicals, with the exception of subscription contracts for the supply of such publications;
k) contracts concluded within an open tender;
l) contracts for the provision of accommodation services, for purposes other than residential, goods transport services, including the rental of transport units for the purpose of transporting goods on a given day, rental services of motor vehicles for the transport of passengers, which include a maximum of 8 seats in addition to the driver’s seat, catering services or in connection with leisure, if the contract provides for a specific date or term of performance;
m) contracts for the supply of digital content that is not delivered on a tangible medium, if the provision has begun with the consumer’s express prior consent and with his confirmation that, at the moment he gives his consent, he will lose his right of revocation.
(2) The exception provided for in paragraph (1) letter a) shall not apply where the business has not obtained the consumer’s explicit consent, but has inferred it by using automatically included options that the consumer must reject in order to avoid the performance of the services or clauses of the standard contractual terms, before the expiry of the revocation period.
Section 3
The right to revoke contracts regarding
some holiday products and contracts
their mediation
Article 1066. Right to revoke contracts
regarding some holiday products
and their mediation
Under the terms of this section and, in addition, section 1, the consumer has the right to revoke:
a) the contract regarding periodic accommodation;
b) the contract regarding the long-term holiday product, the contract for the intermediation of the holiday product and the contract for the intermediation of participation in an exchange system.
Article 1067. Term of revocation
(1) The revocation period is 14 days and begins to run:
a) from the day of conclusion of the contract or preliminary contract; or
b) from the day on which the consumer comes into possession of the copy of the contract or the preliminary contract if this is later than the date mentioned in letter a).
(2) The revocation period expires after:
a) 12 months and 14 days from the date referred to in paragraph (1) of this article – if the business has not completed and made available to the consumer in writing, on paper or on another durable medium, the standard form to facilitate the exercise of the right to withdraw from the contract, provided for in Annex No. 5 to Law No. 1125/2002 implementing the Civil Code of the Republic of Moldova;
b) 3 months and 14 days from the date referred to in paragraph (1) of this article – if the information referred to in art. 1621 paragraph (1), including the standard forms provided for in annexes no. 1-4 to Law no. 1125/2002 on the implementation of the Civil Code of the Republic of Moldova, has not been made available to the consumer in written form, on paper or on another durable medium.
(3) If the business has completed and made available to the consumer, in writing, on paper or on another durable medium, the standard form for facilitating the exercise of the right of withdrawal from the contract, provided for in Annex No. 5 to Law No. 1125/2002 implementing the Civil Code of the Republic of Moldova, within 12 months from the date referred to in paragraph (1) of this article, the period for withdrawal from the contract shall run from the date on which the consumer receives this form.
(4) If the information referred to in art. 1621 paragraph (1), including the standard forms provided for in annexes no. 1-4 to Law no. 1125/2002 for the implementation of the Civil Code of the Republic of Moldova, has been made available to the consumer in writing, on paper or on another durable medium, within 3 months from the date referred to in paragraph (1) of this article, the period for revocation of the contract shall run from the date on which the consumer receives this information.
(5) If the contract for the intermediation of participation in an exchange system is offered to the consumer together and at the same time as the contract for periodic accommodation, a single cancellation period shall apply to both contracts. The cancellation period for both contracts shall be calculated in accordance with the provisions of paragraph (1), as it applies to the contract for periodic accommodation.
Article 1068. Exercise of the right of revocation
For the purpose of notifying the business about the exercise of the right of revocation, the consumer has the possibility:
a) to use the standard form provided for in Annex No. 5 to Law No. 1125/2002 for the implementation of the Civil Code of the Republic of Moldova and made available by the business in accordance with the provisions of art. 1624 paragraph (6); or
b) to make any other notification, on paper or on another durable medium, expressing their will to revoke.
Chapter V
ABUSIVE CLAUSES
Article 1069. Clauses that have not been negotiated
individual
(1) The clause proposed by one of the parties is not individually negotiated if the other party was unable to influence its content, in particular because it was drafted in advance, regardless of whether it is part of standard clauses or not.
(2) If one of the parties proposes to the other party to select from several clauses, the clause is not considered individually negotiated merely because the other party has selected from the proposed clauses.
(3) If a clause has been proposed as part of standard clauses, it shall be presumed that it has not been individually negotiated.
(4) In the contract between a business and a consumer it is presumed that:
a) the clauses were proposed by the business;
b) the clauses were not individually negotiated;
c) the clauses drawn up by an intermediary or other third party were proposed by the business.
(5) The fact that certain aspects of a clause or a particular clause have been negotiated individually does not exclude the application of the provisions of this Chapter to the rest of the contract.
(6) A standard clause is considered a clause that has been prepared in advance for a multitude of contracts involving different parties and that has not been individually negotiated.
Article 1070. Invoking clauses that have not been
individually negotiated
(1) Clauses proposed by a party that have not been individually negotiated may be invoked against the other party only if the other party was aware of them or if the party proposing them took reasonable steps to draw the other party’s attention to them at the time of conclusion of the contract or before.
(2) If the contract is concluded by electronic means, the party proposing clauses that have not been individually negotiated may invoke them against the other party only if it has made them available to the other party in textual form.
(3) For the purposes of paragraph (1), the consumer shall not be deemed to have been sufficiently informed of the terms merely because there is a reference to those terms in the contractual document, even if he has accepted the text.
Article 1071. Obligation of transparency regarding
the clauses that were not negotiated
individual
(1) The person presenting terms which have not been individually negotiated shall ensure that they are drafted and communicated in clear and intelligible language and are legible. This requirement shall apply to the text as a whole, including footnotes, references to other texts or specifications of any kind.
(2) In a contract between a business and a consumer, the clause proposed by the business in breach of the transparency obligation imposed by the provisions of paragraph (1) may be considered unfair only on this sole ground.
Article 1072. Unfair clauses in concluded contracts
with consumers
(1) In a contract between a business and a consumer, a term that has not been individually negotiated shall be considered unfair if it is proposed by the business and, contrary to good faith, considerably disadvantages the consumer.
(2) Articles 1077-1079 contain the list of clauses considered unfair in the contract between a business and a consumer without the need for their assessment according to paragraph (1) of this article and article 1075.
(3) The lists provided for in the articles referred to in paragraph (2) shall not be interpreted as exhaustive lists.
Article 1073. Unfair clauses in contracts between
businesss
In a contract between businesss, a clause proposed by a party that has not been individually negotiated is considered unfair if it is provided for in art. 1077 and deviates considerably, contrary to good faith, from good commercial practices.
Article 1074. Unfair clauses in other contracts
In a contract, other than one concluded with consumers or between businesss, the clause proposed by a party that has not been individually negotiated is considered abusive if it is provided for in art. 1077 and considerably disadvantages the other party, contrary to good faith.
Article 1075. Factors for assessing character
abusive
(1) When assessing the unfairness of a contractual term within the meaning of art. 1072 paragraph (1), art. 1073 and 1074, the following shall be taken into account:
a) compliance with the transparency obligation provided for in art. 1071;
b) the nature of the object of the contract;
c) the determining circumstances in the conclusion of the contract;
d) the other contractual clauses; and
e) the clauses contained in any other contract on which the contract depends.
(2) The assessment of the unfairness of the terms may not refer to the subject matter of the contract nor to the adequacy of the price or remuneration, on the one hand, in relation to the goods, works or services provided in exchange for them, on the other hand, if the obligation of transparency, provided for in art. 1071, has been complied with. The subject matter of the contract and the price-quality ratio may be taken into account when assessing the unfairness of the other contractual terms.
(3) In the case of insurance contracts, clauses which clearly define or delimit the insured risk and the limits of the insurer’s liability shall not be subject to assessment in so far as these restrictions are taken into account in calculating the premium paid by the consumer. However, clauses relating to the procedure to be followed by each of the parties after the insured event has occurred shall be subject to assessment of unfairness.
Article 1076. Nullity of protection
(1) The unfair clause is struck by absolute nullity.
(2) This nullity protection operates only to the extent that the annulment of the clause benefits the party that did not propose the unfair clause.
(3) If the party who did not propose the unfair clause is a consumer, the court is obliged to invoke nullity ex officio.
(4) If the contract can reasonably be maintained without the unfair clause, the other clauses remain valid.
(5) If the unfair clause is found to be null and void and the business has incurred a cost with the other contracting party as a result, he has a right of recourse against the person who sold him the good, performed the work or provided the service (the supplier) and imposed the use of the unfair clause in relation to those with whom the business contracts, unless the contract between the supplier and the business provides otherwise.
Article 1077. Clauses considered abusive
(1) Clauses that have not been individually negotiated and have as their object or effect:
1) exclusion or limitation of the business’s liability provided by law in the event of the consumer’s death or bodily injury as a result of the action or inaction of the business or of the persons acting on his behalf;
2) exclusion or limitation of the consumer’s rights under the law vis-à-vis the business or another party, in the event of total or partial non-fulfilment or improper fulfilment of any of the business’s contractual obligations, including by:
a) obliging the consumer to fulfill all his obligations, even if the business does not comply with his correlative obligations;
b) exclusion or limitation of the consumer’s right to bring an action in court;
c) requiring the consumer to prove a certain fact if, according to the law, this task falls to the business;
d) excluding or limiting the consumer’s right to offset a debt owed to the business with a claim that the consumer may have against him;
3) obliging the consumer to comply with clauses with which he did not have the real opportunity to become familiar with before concluding the contract;
4) the fact that the contract generates obligations on the consumer, but:
a) does not generate obligations on the business; or
b) the business’s obligations are subject to a condition the fulfillment of which depends solely on the latter’s will;
5) granting permission to the business to retain the amounts paid by the consumer, if the latter decides not to conclude the contract or not to perform it, without providing for the consumer’s right to receive compensation in an amount at least equivalent from the business, if he is the party resorting to the resolution;
6) requesting from the consumer who has not fulfilled his obligation without justification a penalty disproportionate to the damage caused by the failure to fulfill contractual obligations;
7) granting the business the right to terminate at his discretion, while the consumer is not granted the same possibility, or granting permission to the business to retain the amounts paid for goods, works or services that have not yet been provided by him, where the business is the one who resorts to termination;
8) granting the business the possibility to resort to the termination of the contract of indefinite duration without a reasonable notice period in writing, except in cases where there are valid reasons for doing so;
9) the automatic extension of a fixed-term contract, if the consumer has not expressed his intention to extend it or not, when the deadline set for the consumer to express his intention to extend the contract is excessively early;
10) granting the business the right to unilaterally modify the clauses without having a valid reason specified in the contract;
11) granting the business the right to unilaterally modify, without having a valid reason specified in the contract or by reference to the provisions of the regulatory acts in the field, any characteristics of the good, work or service to be supplied or any other conditions of supply;
12) providing that the price of the goods be established at the time of delivery or giving the business the possibility to increase their price without granting the consumer the corresponding right of withdrawal, if the final price is unreasonably increased or disproportionate in relation to the price agreed upon at the conclusion of the contract, taking into account the objective circumstances that led the business to change the price;
13) granting the business the right to determine whether the goods, works or services provided are in conformity with the contract or granting him the exclusive right to interpret any clause in the contract;
14) limiting the business’s obligation to comply with the commitments assumed by intermediaries or by their representatives or the assumption of commitments by them, subject to compliance with a certain formality not expressly provided for by law;
15) granting the business the possibility to transfer his rights and obligations under the contract, without the consumer’s consent, except in the case where they are transferred to an entity controlled by the business or as a result of a merger or other reorganization, and such transfer is not likely to negatively affect the consumer’s right;
16) forcing the consumer to resolve any dispute exclusively through arbitration, which is not required by law, or unreasonably restricting the evidence available to the consumer.
(2) The provisions of paragraph (1) points 8), 10) and 12) shall apply as follows:
1) point 8) shall not affect clauses whereby the financial service provider reserves the right to terminate a contract of indefinite duration without notice, if there is a justified reason, provided that the provider is obliged to immediately inform the other contracting party or parties thereof;
2) point 10) does not affect the clauses on the basis of which:
a) the financial service provider reserves the right to change the interest rate payable by or due to the consumer or the amount of other charges for financial services, without prior notice, if there is a valid reason, provided that the provider is obliged to inform the other contracting party or parties immediately in this regard and that the latter are free to resort, immediately on this basis, to the termination or, as the case may be, to the early repayment of the amounts due to the provider, without any additional cost to the consumer. This provision does not affect more stringent legal provisions in relation to credit agreements concluded with consumers;
b) the business reserves the right to unilaterally modify the clauses of a contract of indefinite duration provided that he is obliged to inform the consumer with a reasonable notice period and the consumer is free to resort to termination;
3) points 8), 10) and 12) do not apply:
a) transactions with securities, financial instruments and other goods, works or services where the price is linked to fluctuations in the stock market quotation or stock index or a rate on the financial market that the business cannot control;
b) contracts for the purchase or sale of foreign currency, traveler’s checks or international payment orders issued in foreign currency;
4) point 12) does not affect price indexation clauses if these clauses comply with the law, provided that the method according to which prices vary is explicitly described.
(3) For the purpose of applying the provisions of articles 1073 and 1074, the provisions of paragraphs (1) and (2) of this article shall be read with the necessary adaptations, so that:
a) references to the business shall be deemed to be references to the party who proposed the clauses; and
b) references to the consumer shall be deemed to be references to the party to whom the clauses were proposed.
Article 1078. Clauses considered unfair only
in contracts concluded with consumers
Clauses that have not been individually negotiated in contracts concluded with consumers and that have as their object or effect:
a) establishing, with regard to all disputes arising from such a contract, the exclusive jurisdiction of the court of the place where the business has his registered office. This provision shall not apply if the chosen court is also the place where the consumer has his domicile;
b) establishing a notice period for the business’s declaration of termination that is shorter than the period imposed on the consumer;
c) exclusion or limitation of consumer rights regarding the protection of personal data or privacy;
d) excluding or limiting the consumer’s exercise of the exceptions or legal limits to the copyrights belonging to the business, including the right to make a private copy of the work;
e) granting the business the right, if the object of the order is not available, to provide an equivalent without expressly informing the consumer of this possibility and of the fact that the business must bear the costs of returning what the consumer has received under the contract, if the consumer exercises his right to reject the service;
f) granting the business the right to reserve an excessively long or not properly mentioned period for accepting or refusing an offer;
g) granting the business the right to reserve an excessively long or not properly mentioned period to perform his obligations under the contract;
h) requesting excessive advance payments or excessive guarantees from the consumer for the performance of his obligations. This provision does not apply to contracts in the field of financial services;
i) unreasonably preventing the consumer from obtaining supplies or repairs from appropriate third party sources;
j) unreasonably linking the contract with another contract with the business or with a third party in a way that the consumer cannot reasonably expect;
k) imposing an excessive burden on the consumer if the consumer declares the termination of an indefinite-term contract;
l) extension by more than 1 year of the initial term or the renewal terms of the contract for the continuous supply of goods, works or services, unless the consumer has a right to terminate at any time, by giving a notice of no more than 30 days;
m) granting the business the possibility to prohibit or limit the transfer of rights related to the guarantee upon the alienation of the good by the consumer to third parties;
n) conditioning the provision of the service by the business with a certain type of measuring instrument, although the measuring instrument used by the consumer is legal;
o) exclusion or limitation of the consumer’s right to resort to termination if the business has unilaterally modified the contractual clauses under the conditions provided for in art. 1077 paragraph (1) point 10);
p) exempting the business from the obligation, if provided for by law, to summon the consumer or to set a deadline for the performance of contractual obligations.
Article 1079. Clauses considered unfair in contracts
concluded with consumers even if they have
been negotiated
In a contract between a business and a consumer, the clauses indicated in art. 1077 para.(1) points 1)-3) are considered unfair even if they were negotiated individually with the consumer.
Article 1080. Manifestly unfair clauses concerning
upon performance of the pecuniary obligation
whose creditor is a business
(1) In a contract by which a business delivers goods, performs works or provides services for the benefit of another business or a public authority or another legal person under public law or associations thereof, the clause, even if it was negotiated individually, relating to the term for the performance of the pecuniary obligation, to the rate of interest for delay or the penalty for the delay in the performance of the pecuniary obligation or to the compensation for the costs of its recovery, is struck by absolute nullity if the clause is manifestly abusive towards the creditor of the pecuniary obligation. The provisions of art. 1076 shall apply accordingly to manifestly abusive clauses.
(2) When assessing whether a clause is manifestly unfair to the creditor within the meaning of paragraph (1), all the circumstances of the case shall be taken into account, including the following:
a) all serious deviations from commercial practices and usages, contrary to good faith;
b) the nature of the goods, works or services;
c) if the debtor has objective reasons for derogating from the legal rate of interest for late payment provided for in art. 942, from the payment term provided for in art. 862 paragraph (1) or (2) or from the minimum compensation for recovery expenses provided for in art. 945.
(3) For the purposes of applying the provisions of paragraph (1), any clause which:
a) excludes the payment of interest for delay in the performance of pecuniary obligations is presumed to be manifestly abusive;
b) excludes the compensation of recovery expenses provided for in art. 945 is considered manifestly abusive.
(4) The provisions of this article do not apply to insurance contracts and the obligations of the debtor in respect of whom insolvency proceedings are initiated.
Article 1081. Scope of application
(1) This chapter applies to contracts, regardless of their form, as well as to the completion of order forms or delivery notes, tickets, vouchers and the like containing standard clauses.
(2) The following shall not fall under the scope of this chapter:
a) contractual clauses that reflect the norms provided by laws and other normative acts;
b) employment contracts regulated by the Labor Code;
c) contracts regarding inheritance rights;
d) contracts regarding rights regulated by the Family Code;
e) the acts (contracts) of incorporation of commercial companies;
f) contractual clauses transposed from international conventions to which the Republic of Moldova is a party.
(3) For the purposes of this chapter, goods also mean digital content supplied under the contract for the supply of digital content.
(4) Any clause contrary to the provisions of this chapter shall be absolutely null and void.
Chapter VI
EFFECTS OF THE CONTRACT
Section 1
General provisions
Article 1082. Completion of the effects of the contract
(1) The contract produces not only the rights, obligations and other legal effects expressly stipulated by the parties, but also the legal effects resulting, in the following order, from:
a) mandatory legal provisions;
b) the dispositive legal provisions, to the extent that they have not been derogated from;
c) the established practices between the parties and the applicable customs;
d) the principle of good faith and that of equity.
(2) Mandatory legal provisions replace clauses that conflict with them, subject to the legal provisions on nullity.
(3) The contract produces the effects resulting from the sources provided for in paragraph (1) letters c) and d) to the extent that they are compatible with the nature and purpose of the contract, as well as with the circumstances in which the contract was concluded.
Article 1083. Exceptional change of circumstances
(1) The obligation must be performed even if the performance has become more onerous because the cost of performance has increased or the value of the consideration has decreased.
(2) However, if the performance assumed becomes, due to an exceptional change in circumstances, so onerous that it would be manifestly unfair to maintain it as the debtor’s responsibility, the court may order, at the debtor’s request, taking into account all the circumstances of the case:
a) adjusting the parties’ benefits to fairly distribute between the parties the losses and benefits resulting from the change in circumstances;
b) resolution at the time and under the conditions established by the court.
(3) Instead of bringing proceedings in accordance with paragraph (2), the consumer debtor may, within a reasonable period of time, declare the termination of the contract if that change of circumstances substantially deprives him of what was expected from the contract. After the termination by the consumer debtor under the terms of this paragraph, the creditor may bring proceedings in order to award damages in order to distribute fairly between the parties the losses and benefits resulting from the change of circumstances.
(4) The provisions of paragraph (2) or, as the case may be, paragraph (3) shall apply only if:
a) the change in circumstances occurred after the obligation was assumed;
b) at the time of assuming the obligation, the debtor did not take into account, nor could he reasonably be expected to take into account, the possibility of that change in circumstances or its magnitude;
c) the debtor has not assumed, nor can it reasonably be considered to have assumed, the risk of that change in circumstances; and
d) the debtor has tried, in a reasonable manner and acting in good faith, to achieve, through negotiation, an adjustment of the parties’ performances in order to distribute fairly between the parties the losses and benefits resulting from the change in circumstances. The negotiation must be initiated before the discharge of all obligations incumbent on the debtor and the creditor. It is irrelevant whether after the initiation of the negotiation one of the parties has performed its obligation.
Article 1084. Resolution
(1) A contract may only be terminated on the grounds provided for by law or by agreement of the parties.
(2) One or both parties may expressly reserve by contract the right to terminate for non-performance of obligations, for other reasons or without reason.
(3) The contract by which the parties cause the termination (termination contract) must be concluded in the form required by law for the contract subject to termination.
(4) The resolution applies to all types of contracts, regardless of the method of performance or duration.
Article 1085. Resolution without reasons
If, in the case of a contract which is performed by continuous or periodic services, the terms of the contract do not provide for the moment when it will cease or provide that it is for an indefinite period, either party has the right to terminate it by giving reasonable notice. The duration of the interval between services or, if longer, between counter-services is presumed to be reasonable.
Article 1086. Relativity of the effects of the contract
(1) The contract shall be effective only between the parties unless otherwise provided by law. Any contrary clause shall be deemed to be absolutely null and void.
(2) The contract also produces effects for universal successors or by universal title unless the law or the nature of the obligation results otherwise.
Article 1087. Acquisition of rights and obligations
closely related to good
(1) The acquirer of an property also acquires the guarantees against material and legal defects, as well as other rights closely related to the property, in the form in which they were with the transferor.
(2) In the cases and under the conditions provided for by law or contract, the acquirer of an property shall be subrogated to the contractual obligations closely related to an property, in the form in which they were with the transferor.
Article 1088. Promise of another’s deed
(1) The contracting party (promiser) who has undertaken to induce a third party to conclude or ratify an act or to perform another performance must compensate the damage caused to the other party if he has failed to induce the third party. The liability of the promisor arises even when the non-performance is justified.
(2) The promisor is not liable for the manner in which the third party performs the obligation assumed, except in the case where the promisor has guaranteed the performance in accordance with the legal provisions regarding suretyship and other personal guarantees.
Section 2
simulation
Article 1089. Notion
(1) The simulation of a contract may be absolute or relative.
(2) Simulation is absolute when the parties conclude the contract without the intention of producing legal effects.
(3) Simulation is relative when the parties conclude the contract with the intention that it apparently produces legal effects different from the effects truly desired by the parties (secret contract).
Article 1090. Effects between the parties
(1) The simulated contract has no effect between the parties.
(2) The secret contract produces effects only between the parties and, unless the nature of the contract or the stipulation of the parties indicates otherwise, between their universal successors or by universal title.
(3) However, the secret contract does not produce effects between the parties if it does not meet the conditions required by law for its valid conclusion.
Article 1091. Effects on third parties
(1) The secret contract cannot be invoked by the parties, by their universal successors, by universal title or by particular title, nor by the creditors of the apparent alienator against third parties who, relying in good faith on the apparent contract, have acquired rights from the apparent acquirer.
(2) Third parties may invoke the existence of the secret contract against the parties if it infringes their rights.
Article 1092. Relations with creditors
(1) The existence of the secret contract cannot be opposed by the parties to the creditors of the apparent acquirer, who, being in good faith, have committed acts of forced performance or obtained seizure of the property that was the subject of the simulation.
(2) If there is a conflict between the creditors of the apparent alienator and the creditors of the apparent acquirer, the former shall be preferred if their claim is prior to the moment of conclusion of the secret contract.
Article 1093. Simulation test
Proof of simulation can be provided by third parties or creditors with any means of evidence. The party who committed the simulation can prove it through evidence with witnesses only when he claims that the simulation is of an illicit nature.
Article 1094. Extinct prescription
(1) The person who may invoke the simulation may do so, as the case may be, by way of declaratory action or by way of exception. This right to action or to invoke the exception is not subject to prescription.
(2) However, the claim based on the finding of simulation is subject to extinction according to the nature of that claim.
Article 1095. Scope of application
(1) Where only certain clauses of a contract are simulated, the provisions of this section shall apply accordingly to those clauses.
(2) If the contract is plurilateral and only some parties have simulated, the other parties to the contract shall be considered third parties for the purposes of this section if they were not aware of the simulation.
(3) The provisions of this section shall also apply accordingly to unilateral juridical acts intended for a specific person, which have been simulated by agreement between the author of the act and the addressee.
(4) The provisions of this section do not apply to marriage, adoption or other non-patrimonial juridical acts.
Section 3
Contract for the benefit of a third party
Article 1096. Contract for the benefit of a third party
(1) The parties to a contract may agree that the debtor (promiser) shall perform the performance not to the creditor (stipulator), but to a third party (beneficiary), indicated or not indicated in the contract, who directly obtains the right to claim the performance for his benefit.
(2) The benefit may also consist in the exclusion or limitation of the beneficiary’s liability towards the promisor or stipulator.
(3) It is not mandatory that the beneficiary be determined or exist at the time of stipulation. It is sufficient that he be determinable and exist at the date of performance of the contract.
(4) Until the beneficiary informs the stipulator or the promisor about the acceptance of the stipulation, it may be revoked or modified by the stipulator. The stipulator’s successors or creditors shall not have the right to revoke or modify the stipulation.
Article 1097. Request for performance
The performance of the contract concluded in favor of a third party may be requested by both the stipulator and the beneficiary to the extent that the law or the contract does not provide otherwise and this is possible by the nature of the service.
Article 1098. Enforcement in favor of the stipulator
In the event of revocation of the stipulation, of the beneficiary’s refusal of the right conferred by the stipulation, as well as in the event that the stipulation in favor of a third party has no effect on the beneficiary, the stipulator may request the performance of the service towards himself unless the contract or the nature of the obligation provides otherwise.
Article 1099. Exceptions opposable to the beneficiary
The promisor may oppose to the beneficiary exceptions based on the contract from which the beneficiary obtained his right, but not exceptions based on other relationships between the promisor and the stipulator.
Chapter VII
INTERPRETATION OF THE CONTRACT
Article 1100. Principles of contract interpretation
(1) The contract must be interpreted on the principles of good faith.
(2) The contract shall be interpreted according to the common intention of the parties, without being limited to the literal meaning of the terms used.
(3) If one of the parties intended the contract or a clause thereof to have a certain meaning and at the time of the conclusion of the contract the other party knew or should reasonably have known the intention of the first party, the contract shall be interpreted in the meaning understood by the first party.
(4) However, the contract shall be interpreted according to the meaning that a reasonable person would give to:
a) if an intention cannot be determined according to paragraph (2) or (3); or
b) if the doubt arises in relation to another person who, not being a party to the contract and not a universal or universal successor or assignee of the party to the contract, reasonably and in good faith relied on the apparent meaning of the contract.
Article 1101. Factors influencing interpretation
CONTRACT
When interpreting the contract, its nature, the circumstances in which it was concluded, the interpretation given to it by the parties or that can be deduced from their behavior before and after the conclusion of the contract, as well as customs, will be taken into account.
Article 1102. Contradiction in drafting
in several languages
(1) If the document establishing the contract is drawn up in two or more languages, and the parties have not stipulated which of them has priority, in the event of a contradiction between the versions, priority shall be given to the version in the language in which the contract was originally drawn up.
(2) The provisions of art. 1107 shall apply with priority over the provisions of par. (1) of this article.
Article 1103. Coordinated interpretation of clauses
Contractual clauses are interpreted in the context of the entire contract.
Article 1104. Interpretation of clauses and terms
multivocal
(1) The clauses of the contract shall be interpreted in the sense in which they may produce effects, but not in the sense in which they would not produce any effect.
(2) Polysemantic terms shall be interpreted in the sense that most corresponds to the nature of the contract.
Article 1105. Contract clauses and the inserted example
for their definition
If the parties include an example in the contract to facilitate the understanding of certain clauses, the scope of the obligation is not limited to the example given.
Article 1106. Limitation of the interpretation of contract clauses
The contract clauses refer only to the subject matter of the contract, no matter how general the terms used therein may be.
Article 1107. Interpretation of the contract in favor of
the disadvantaged party
(1) Ambiguities in standard contractual conditions shall be interpreted to the detriment of the party that formulated them.
(2) In case of doubt, the contract shall be interpreted in favor of the party who contracted the obligation and against the party who stipulated it. In all cases, the contract shall be interpreted in favor of the member or the consumer.
(3) Clauses that have been individually negotiated shall take precedence over other clauses.
Title III
CATEGORIES OF OBLIGATIONS
Chapter I
Sale and purchase
Section 1
General provisions regarding
for sale-purchase
Article 1108. Sale-purchase contract
(1) Through the sale-purchase contract, one party (seller) undertakes to hand over a good in ownership to the other party (buyer), and the latter undertakes to take over the good and pay the agreed price.
(2) The seller undertakes to submit, simultaneously with the delivery of the goods, the documents relating to the goods, provided for by law, unless otherwise provided in the sales contract.
(3) If the price is not directly indicated in the sale-purchase contract, the parties may agree on the method of determining it.
(4) The provisions of this chapter also apply to the sale-purchase of rights and other things, such as electricity, thermal energy, gas and water, supplied through the network, as well as digital content, to the extent that these provisions do not contradict the nature of these rights or things.
Article 1109. Expenses for the sale of movable property
(1) The costs of handing over the movable property, in particular the costs of measuring, weighing and packaging, shall be borne by the seller, and the costs of receiving and transporting the property from the place of conclusion of the sale-purchase contract to another place shall be borne by the buyer, unless otherwise provided in the contract.
(2) If the contract for the sale and purchase of a movable property must be authenticated or the property right acquired through the contract is subject, according to the law, to registration in an advertising register, the buyer bears the cost of notarial authentication, registration in the respective advertising register and transfer of ownership.
Article 1110. Expenses for the sale of real estate
In the case of purchasing land or other real estate, the costs of drawing up, notarizing and registering in the real estate register the property right acquired through the sale-purchase contract, as well as the costs of taking over the necessary documents, are borne by the buyer.
Article 1111. Price
(1) The price of the good must be expressed in money.
(2) If in the sales contract concluded between businesss the price of the goods is not determined expressly or implicitly by a provision allowing it to be determined, it shall be considered, in the absence of any contrary provisions, that the parties have tacitly referred to the price usually charged at the time of conclusion of the contract in the respective field of activity for the same goods sold in comparable circumstances. In the event that there are no similar contracts, it shall be considered, in the absence of any contrary provisions, that the parties have tacitly referred to a price charged at the date of delivery of the goods.
(3) If the price of the good is determined based on its weight, the net weight is the one that, in case of doubt, determines the price.
Article 1112. Term for the surrender of the property
(1) The seller must deliver the goods:
a) on the date established in the contract or on the date that can be deduced from the contract;
b) at any time during the period established in the contract or determined by reference to the contract, unless the circumstances indicate that the choice of date is up to the buyer;
c) within a reasonable period calculated from the date of conclusion of the contract, in other cases.
(2) The sale-purchase contract is considered concluded with performance clauses strictly on the established date if it clearly results from the contract that, upon violation of this term, the buyer loses interest in the performance of the contract.
(3) The seller may execute the contract with performance clauses strictly on the established date, before this term or after it only with the consent of the buyer.
Article 1113. Obligations of the seller for dispatch
of the good
(1) If, in accordance with the contract, the seller hands over the goods to a carrier and if the goods are not clearly identified, in accordance with the contract, by a distinctive mark on them, by the transport documents or by any other means, the seller must send the buyer a consignment note specifying the goods.
(2) If the seller is obliged to make arrangements for the transport of the goods, he must conclude the necessary contracts for the transport to be carried out to the named place, with vehicles appropriate to the circumstances and under the usual conditions for such transport.
(3) If the seller is not obliged to insure the goods during transport, he shall transmit, at the buyer’s request, all the information at his disposal necessary for concluding the insurance contract.
Article 1114. Risk of accidental loss or damage to property
(1) The risk of accidental loss or damage to the goods is transferred to the buyer at the moment when the seller has fulfilled his contractual obligations regarding the placing of the goods at the buyer’s disposal, unless the contract provides otherwise.
(2) Where the contract of sale involves the carriage of the goods and the seller is not obliged to deliver them to a specific place, the risk shall pass to the buyer from the moment the goods are handed over to the first carrier. If the seller is obliged to hand over the goods to the carrier at a specific place, the risk shall pass to the buyer only after the goods have been handed over to the carrier at that place. If the buyer has given the seller instructions on the manner of carriage and the seller has deviated from them without good reason, he shall be obliged to compensate for the damage caused thereby.
(3) In the case of the sale of the good along the way, the risks are transferred to the buyer at the time of conclusion of the contract unless otherwise provided for in the contract.
(4) If the contract is concluded after the delivery of the goods, the risks known to the seller or the existence of which he could not have been unaware at the conclusion of the contract remain with the seller.
(5) In the case of the sale of generically determined goods, the risk does not pass to the buyer prior to the individualization of the good.
Article 1115. Time of performance of the obligation to surrender
of the good
(1) The obligation to hand over the property is considered fulfilled at the moment:
a) handing over the goods to the buyer or to the person indicated by him;
b) placing the goods at the disposal of the buyer or the person indicated by him if the goods are to be handed over at their location. The goods are considered to be placed at the disposal of the buyer if they are individualized by marking or in some other way and if they are ready for handover within the established deadline, and the buyer is informed about this according to the contractual clause.
(2) If the contract does not provide for the seller’s obligation to ensure the transportation of the goods or their delivery to the buyer’s location, the seller’s obligation to deliver the goods shall be deemed to have been fulfilled from the date of delivery of the goods to the carrier or post office for transport to the buyer, unless the contract provides otherwise.
Article 1116. Receipt of the property
The buyer is obliged to perform actions that, in accordance with customs, are necessary on his part to guarantee the delivery and receipt of the goods unless the law or the contract provides otherwise.
Article 1117. Material defects of property
(1) The seller is obliged to deliver the goods without material defects.
(2) The goods are free from material defects if, at the time of transfer of risk, they have the agreed characteristics. In particular, the following characteristics are considered agreed:
a) which correspond to the description given by the seller and, where applicable, which the good presented by the seller to the buyer as a sample or model has;
b) corresponding to the special purpose for which the buyer requests the good, which, being brought to the attention of the seller upon conclusion of the contract, were accepted by the seller.
(3) If the characteristics have not been agreed upon, the good has no defects if:
1) corresponds to the destination established in the contract;
2) corresponds to normal use and has characteristics that are usually present in goods of the same type and that the buyer can expect taking into account the type of goods. These characteristics also include those that the buyer can expect according to public statements regarding the specific characteristics of the goods made by the seller, manufacturer or his representative, in particular through advertising or labeling, unless the seller demonstrates that:
a) was not or could not reasonably have been aware of the statement in question;
b) the declaration was rectified before the conclusion of the contract; or
c) the decision to purchase the property could not have been influenced by the declaration.
(4) There are also material defects when the contractually agreed assembly was defectively carried out by the seller or his assistants, as well as when the goods must be assembled by the buyer and he assembles them defectively due to erroneous assembly instructions.
(5) There is also a material defect if the seller delivers only part of the good, another good, the good in a quantity smaller than the agreed upon or when only part of the good is defective.
(6) There is also a material defect if the seller’s obligations regarding the assortment of goods, the packaging of goods and their packaging are not respected.
(7) The provisions of paragraph (3) shall not apply in the case of forced sale.
Article 1118. Quantity of goods
(1) The seller is obliged to deliver the goods in the quantity established in the sale-purchase contract.
(2) The buyer has the right to refuse to accept the goods if the seller delivers a quantity less than that stipulated in the contract. If he accepts the receipt of the goods in a smaller quantity, the buyer pays the contractual price proportionally.
(3) If the seller delivers a quantity greater than that provided for in the contract, the buyer is entitled to take over the goods in such quantity, being obliged to pay the price established in the contract proportionally, or to take over only the quantity provided for in the contract, and to return the surplus from the seller’s account.
Article 1119. Assortment of goods
(1) The seller is obliged to deliver the goods in the assortment (correlation by models, varieties, measures, colors or other particularities) stipulated in the contract, and in the absence of such stipulation, in the assortment that corresponds to the buyer’s needs, if the seller was aware of them at the date of conclusion of the contract, or to refuse to perform the contract.
(2) The seller is obliged to deliver to the buyer the goods in accordance with the sales contract in the complete assortment.
(3) If the completeness of the assortment of goods is not established, the seller is obliged to transfer the goods to the buyer in the completeness determined by the customs of the business circuit or by other traditionally submitted requirements.
Article 1120. Garnishment of goods
(1) If the seller is obliged to deliver a complete set of goods to the buyer, the obligation is considered fulfilled on the date of delivery of all items in the set.
(2) If the contract does not stipulate the delivery of a specific set of goods, and the essence of the contract does not result otherwise, the seller is obliged to deliver all the items included in the set at the same time.
Article 1121. Packaging
The seller is obliged to hand over the goods to the buyer packaged or wrapped in the usual manner for goods of this type or, in the absence of a usual manner, in a manner appropriate to preserve and protect them under usual storage and transportation conditions for goods of this type.
Article 1122. Legal defects
(1) The seller is obliged to deliver the goods without legal defects.
(2) The property is free from legal defects if, upon the transfer of risks, it is free from the rights or justified claims of third parties over it.
(3) The situation in which there is a registration, provisional registration or notation in the advertising register corresponding to the good that is subject to rectification according to art. 439 or 442 is assimilated to a legal defect. The seller is obliged to ensure their deletion from the advertising register, at his expense.
(4) The good is considered free from legal defects if it is free from the rights or well-founded claims of third parties based on the right to the intellectual property object of which, at the time of conclusion of the contract, the seller was aware or should have been aware.
(5) However, the seller shall not be liable under paragraph (2) if the right of a third party is infringed on the grounds that the seller has complied with the sketches, technical drawings, formulas or other such specifications provided by the buyer.
Article 1123. Limits of the buyer’s rights
results from the existence of the vice
(1) The buyer may exercise his rights arising from the existence of the defect if he proves that the defect existed at the time of the passing of risk, even if it is discovered later.
(2) The buyer’s rights resulting from the existence of the defect are excluded if the seller proves that, at the time of conclusion of the contract, the buyer knew or should have known of these defects.
(3) The buyer loses the rights resulting from the existence of the defect if he failed to notify the seller about the discovery of the defect within the notification period provided for in art. 1125, while respecting the term for discovery of defects provided for in art. 1126.
(4) The filing of an action against the seller based on the existence of a defect produces the same effects as notification of the defect, from the moment the seller knew or should have known about the action.
(5) If the defect results from circumstances that the seller knew or should have known, but which he did not disclose to the buyer at the time of concluding the contract, the seller may not invoke:
a) the fact that the buyer, due to gross negligence, was unaware of the defect;
b) the provisions of articles 1124, 1125 and 1126;
c) the clause that excludes or limits the buyer’s rights provided by law resulting from the existence of the defect.
Article 1124. Obligation to verify the existence
material vice
(1) The buyer must inspect the goods, personally or through a third party, within the shortest time permitted by the circumstances. Failure to comply with this requirement deprives the buyer of the right to invoke the defect under the conditions of art. 907, supplemented by the provisions of art. 1125.
(2) If the contract involves the transportation of the goods, the verification may be postponed until the goods arrive at their destination.
(3) If the goods are redirected in transit or are re-shipped by the buyer before he has had a reasonable opportunity to inspect them, and at the time of conclusion of the contract the seller knew or should have known of the possibility of such redirection or re-shipment, the inspection may be postponed until the arrival of the goods at the new destination.
(4) The provisions of this article do not apply to the contract for the sale and purchase of consumer goods.
Article 1125. Notification of defect
(1) In the case of a contract concluded between businesss, the buyer must notify the seller of the defect in accordance with Article 907. In the notification, the buyer must describe the defect in detail.
(2) In all other contracts, the buyer must notify the seller of the defect within 2 months from the date of discovery.
Article 1126. Term for discovery of defects
(1) The buyer loses the rights resulting from the existence of the defect if he does not notify the seller of that defect before the expiration of the term:
a) 3 years, in the case of legal defects;
b) 5 years, in the case of material defects of a construction or of the materials used in the performance of a construction work;
c) 2 years, in the case of material defects, other than those provided for in letter b).
(2) The periods provided for in paragraph (1) shall begin to run from the date on which the property came into the possession of the buyer. In the event that the right of ownership is acquired, according to the law, by registration in a public register, it shall be presumed that the buyer came into possession of the property at the time of registration of the right in his favor.
(3) If the buyer has taken possession of the goods before the conclusion of the contract, the terms provided for in paragraph (1) shall begin to run from the date of conclusion of the contract.
(4) If the material defect is remedied, the respective term provided for in paragraph (1) is extended by the term within which the buyer cannot use the good due to that defect.
Article 1127. Extinct prescription period
The limitation period for the right to action to exercise a right of the buyer resulting from the existence of the defect begins to run from the date on which the buyer discovered or should have discovered the defect.
Article 1128. The buyer’s resulting rights
from the existence of vice
(1) If the buyer discovers the existence of a defect in the sold good, he may exercise the rights of the creditor in case of non-performance of the obligation, under the conditions of art. 901-946.
(2) In particular, based on the right to request performance in kind of the obligation, the buyer may request the seller, at his choice, to remove the defect or replace the sold good with a good of the same type, but free from defects.
(3) The buyer may request the replacement of the defective good only as long as he has the right to rescind.
Article 1129. Seller’s obligation in case of eviction
(1) If a third party, based on his right over an property that arose before the conclusion of the sale-purchase contract, initiates an eviction action against the buyer, the latter is obliged to involve the seller in the process and may oppose to the third party all the exceptions that the seller could have opposed.
(2) Failure to involve the seller in the process releases him from liability towards the buyer if he proves that his involvement would have prevented the buyer’s eviction.
Article 1130. Commercial guarantee
(1) If the seller, the manufacturer or a third party guarantees the characteristics of a good (commercial guarantee), the buyer benefits, without prejudice to the rights provided by law, from the rights under the commercial guarantee under the conditions indicated in the guarantee statement and in the respective advertising towards the person who granted the guarantee.
(2) Regardless of whether the warranty statement is made in the contract or in the form of a unilateral act, the guarantor is bound by the commercial warranty to the first purchaser and, in the case of a unilateral statement, bears this obligation without the need for the purchaser to accept it by countersignature or otherwise. Any contrary stipulation in the warranty statement or in the advertising associated with it is null and void.
(3) During the term of the commercial guarantee, the guarantor is obligated under the commercial guarantee also towards each subsequent owner of the property without the latter having to accept it.
(4) Unless the commercial guarantee provides otherwise:
a) the obligations of the guarantor arise if, at any time within the commercial warranty period, the good does not correspond to normal use or does not present characteristics that are usually present in goods of this type and that a buyer can expect taking into account the type of good (defect);
b) the obligations of the guarantor arise regardless of whether the person invoking the commercial guarantee knew or should have known of the existence of the defect;
c) the obligations of the guarantor arise regardless of whether the defect occurred as a result of a cause existing on the date of transfer of risks or after this date;
d) the guarantor is not obligated by the commercial warranty for a specific defect if it occurred due to improper use or storage of the good or due to an event beyond the control of one of the parties;
e) the guarantor is obliged, if the conditions of the commercial guarantee are met, to repair or replace the goods;
f) all costs necessary for the exercise of rights and the performance of obligations resulting from the commercial guarantee shall be borne by the guarantor.
(5) The term of the commercial guarantee begins to run from the moment of delivery of the goods by the seller, unless the guarantee statement provides otherwise.
(6) The commercial guarantee is applicable, during the warranty period established for the main goods, also to accessories, unless the warranty statement provides otherwise.
(7) If the defect has been remedied under the commercial warranty, its term is extended by the term within which the beneficiary of the warranty cannot use the good due to that defect.
(8) The buyer may exercise successively or simultaneously both the rights granted by law in case of material defect, as well as the rights resulting from the commercial guarantee.
Article 1131. Right of recourse against sellers
previous businesss in the supply chain
distribution of the good for consumption
(1) If, in the case of a contract for the sale and purchase of consumer goods, the consumer has exercised his rights against the seller resulting from the existence of a material defect or the rights granted by the commercial guarantee resulting from the existence of a defect, the seller has the right to compensation for the damage from the business from whom he purchased the goods.
(2) The seller is not entitled to compensation under paragraph (1):
a) if the material defect or defect is due to circumstances of which he knew or should have known; or
b) if the material defect or defect consists in the non-compliance of the good with a characteristic or commercial guarantee that only the seller assumed, but not the business from whom the good was purchased.
(3) The provisions of this article shall apply accordingly to the recourse exercised under previous sales contracts within the chain of contracts concluded between businesss.
(4) Any clause contrary to the provisions of this article to the detriment of the seller is null and void.
Article 1132. Shelf life of the good
(1) By law, standards and other mandatory provisions, validity periods of the quality of the good may be established, after the expiry of which the good is considered unusable (validity period).
(2) The seller is obliged to deliver the good for which a validity period has been established so that the buyer can use it at its destination until the expiry of this period.
Article 1133. Obligation to preserve the sold good
(1) When the buyer delays in taking delivery of the goods or fails to pay the price, if payment of the price and delivery are to be made simultaneously, the seller, if he has the goods in his possession or under his control, must take reasonable steps, in accordance with the circumstances, to preserve them. He is entitled to retain them until he has obtained payment from the buyer of his reasonable expenses.
(2) If the buyer has received the goods but justifiably wishes to return them, he is obliged to take appropriate measures to preserve them. He may retain the goods until the seller pays him reasonable expenses.
(3) The party who is obliged to take measures for the preservation of the property may store it, at the expense of the other party, in the warehouse of a third party if disproportionate costs will not result.
(4) The party obliged to take measures to preserve the property has the right of retention over it until a reward for preservation is paid to him.
Article 1134. The right to alienate property
(1) The party obliged to preserve the property is entitled to sell it at a reasonable price, if the other party excessively delays taking it over or paying the conservation costs, if he has notified the other party of the intention to sell.
(2) If the property is liable to perish or to rapid alteration (deterioration) and if its preservation would generate disproportionate expenses, the party obliged to preserve it may sell it.
(3) The party that sold the property shall remit the amount received to the other party, having the right to retain the reasonable costs of preservation and sale.
Article 1135. Application of provisions on defects
in the case of other transferable contracts
of property with onerous title
The provisions of Articles 1117-1134 shall apply accordingly to other contracts by which a party is obliged to transfer the ownership of an property in exchange for a consideration, unless the law, the contract or the nature of the obligation provides otherwise.
Section 2
REDEMPTION
Article 1136. General provisions on redemption
If in the sales contract the seller has reserved the right of redemption, this is done by the seller’s declaration to the buyer that he will exercise the right of redemption. The declaration does not require the form established for the sales contract.
Article 1137. Fate of accessories
The reseller is obliged to hand over the property, together with its accessories, to the person exercising the right of redemption.
Article 1138. Redemption price
The repurchase is carried out at the sale price. The reseller is entitled to claim compensation for the expenses related to the purchased good until the repurchase, in an amount equal to the increase in the value of the good due to these expenses. If the good that must be returned was equipped with an accessory, the buyer may retain it if it does not damage the good.
Article 1139. Compensation for the damage caused
until redemption
(1) If, before exercising the right of redemption, the purchased object has deteriorated, has been lost or cannot be returned for another reason, the person who owns the object is liable for the damage.
(2) If the object has not depreciated due to the fault of the person from whom it is being redeemed or if it has undergone an insignificant change, the redeemer may not request a reduction in the purchase price.
Article 1140. Effects of the disposition of property before
at redemption
If, before exercising the right of redemption, he has disposed of the object of the contract, the buyer is obliged to remove the rights of third parties over the good. The reseller is also considered to have disposed of the good if the good was alienated in the framework of the forced performance procedure or was alienated by the administrator of the insolvency process.
Article 1141. Redemption term
The redemption may be exercised only within the term stipulated in the contract, which may not exceed 10 years for land and 5 years for other property. These terms may not be extended.
Section 3
option
Article 1142. Option
The parties may agree on the unilateral right of the buyer to purchase an property by a certain date (call option) or on the right of the seller to sell an property to the buyer under the same conditions (put option). The provisions on the option to contract apply to option contracts.
Section 4
Pre-emptive right
Article 1143. Right of pre-emption
(1) If the owner of an property (obligor) has granted a right of pre-emption by contract or is obliged by law to respect a right of pre-emption of another person (holder of the right of pre-emption) and wishes to sell or has sold that property to a third party, the holder of the right of pre-emption is entitled to purchase the property with priority under the conditions of sale offered to the third party.
(2) The holder of the pre-emption right may waive it. In this case, the legal provisions regarding debt relief shall apply.
Article 1144. Purchase based on the right of pre-emption
(1) The holder of the right of pre-emption with respect to an property may exercise it if the obligated person makes him an offer to sell the property or, in the absence of an offer, if the obligated person concludes a sale-purchase contract with a third party with respect to that property.
(2) If several persons jointly benefit from the same pre-emption right, this right may only be exercised jointly unless the law or the contract provides otherwise.
(3) The right of pre-emption is not transferable and does not pass through succession unless the law or the contract between the obligated person and the holder of the right of pre-emption provides otherwise.
Article 1145. Obligation to inform
(1) The obligated person must communicate the complete offer to sell the property to the holder of the pre-emptive right.
(2) If the sale-purchase contract was concluded with a third party, the obligated person must immediately deliver a copy of the contract to the holder of the pre-emption right. The obligation to deliver may also be performed by the third party.
Article 1146. Exercise of the right of pre-emption
(1) The right of pre-emption shall be exercised by means of a declaration addressed to the obligated person. For the validity of the declaration, it is not necessary to comply with the form established by law with respect to the sale-purchase contract.
(2) After the holder of the pre-emption right has received the offer pursuant to art. 1145 paragraph (1) or the copy of the contract pursuant to art. 1145 paragraph (2), the pre-emption right may be exercised within one month in the case of immovable property and within 10 days in the case of other property.
If the right of pre-emption is established by law, any clause that modifies the term for exercising the right of pre-emption is null and void.
(3) If the right of pre-emption is exercised following the communication of the offer in accordance with art. 1145 par. (1), the declaration of exercise shall be deemed acceptance of the offer of sale. If the law requires compliance with a certain form for the validity of the sale-purchase contract, the obligated person and the holder of the right of pre-emption shall be obliged to each other to conclude the contract in that form. In the event of unjustified non-performance of this obligation by one of the parties, the other party may request the court to issue a court decision to replace the contract.
(4) If the right of pre-emption is exercised after the conclusion of the sale-purchase contract between the obligated person and a third party, then a sale-purchase contract shall be deemed concluded between the obligated person and the holder of the right of pre-emption under the conditions established by the obligated person and the third party. However, the seller shall be liable to the third party in good faith for any legal defect resulting from the exercise of the right of pre-emption.
(5) If the obligated person or the third party does not recognize the effect of the provisions of paragraph (4), the holder of the right of pre-emption may request the court to issue a decision establishing the conclusion of the contract in accordance with paragraph (4) and the acquisition by the holder of the rights and obligations of the buyer. The right to action provided for in this paragraph or in paragraph (3) shall be prescribed within 6 months.
Article 1147. Special conditions of sale
(1) If the third party has purchased the property subject to the right of pre-emption together with other property for a total price, the holder of the right of pre-emption must pay a proportional part of the total price. The obligated person may request that the right of pre-emption be extended to all property that cannot be separated without disadvantage to him.
(2) If the third party has had the payment of the purchase price postponed, the holder of the pre-emption right may benefit from a postponement if he offers a guarantee of payment of the postponed amount.
(3) The guarantee may consist of the establishment of a first-ranking pledge or mortgage right over the property that is the subject of the sale-purchase contract or the reservation of ownership in favor of the obligated person until the payment of the amount benefiting from the deferral.
Article 1148. Competition between right holders
of preemption
If several holders have exercised their pre-emption right over the same property, the sale-purchase contract is considered concluded:
a) with the holder of the legal right of pre-emption, when in competition with holders of conventional rights of pre-emption;
b) with the holder of the legal right of pre-emption chosen by the seller, when he is in competition with other holders of legal rights of pre-emption;
c) if the property is immovable or is another property over which the ownership right is acquired, according to the law, by registration in an advertising register, with the holder of the conventional right of pre-emption who was first registered in the respective register, when he is in competition with other holders of conventional rights of pre-emption;
d) if the property is other than that provided for in letter c), with the holder of the conventional right of pre-emption having the oldest certain date, when he is in competition with other holders of conventional rights of pre-emption.
Article 1149. Unenforceability of the non-application clause
of the right of pre-emption
The clause agreed between the obligated person and the third party according to which the sale-purchase contract is conditional on the non-exercise of the right of pre-emption or according to which the obligated person reserves the right to terminate the contract upon the exercise of the right of pre-emption is not enforceable against the holder of the right of pre-emption.
Article 1150. Performance of additional obligations
(1) If the third party has assumed, according to the sale-purchase contract, an additional obligation that the holder of the pre-emption right cannot perform, the latter shall be obliged to pay the value of the additional obligation.
(2) If the monetary valuation of the additional obligation is impossible, the exercise of the right of pre-emption shall not be allowed. The clause of the additional obligation shall not be enforceable against the holder of the right of pre-emption if the contract had been concluded with the third party even in the absence of that clause.
Section 5
Trial or sight purchase
Article 1151. Conclusion of the sale-purchase contract
trial or sight
(1) In the case of a trial or sight purchase, consent to the purchased object is at the buyer’s free choice. In case of doubt, the purchase is considered concluded under the suspensive condition of consent.
(2) The seller is obliged to allow the buyer to inspect the object.
(3) Until the condition provided for in paragraph (1) is met, the buyer is responsible for preserving the object.
Article 1152. Consent period
(1) Consent for an object purchased on trial or on sight may be declared only within the agreed term, and if this has not been established, until the expiry of a reasonable term established by the seller.
(2) If the object was given to the buyer for trial or on sight and the established term has expired or, if not established, the term sufficient for assessing the qualities of the object, the buyer’s silence shall be considered consent.
Section 6
Sale of disputed rights
Article 1153. Litigious law
A right is litigious if it is uncertain, contested or contestable by the debtor or if an action has been brought or it can be presumed that action will be necessary.
Article 1154. Prohibition of acquiring litigious rights
Judges, lawyers, notaries, prosecutors and bailiffs cannot acquire litigious rights under penalty of absolute nullity.
Article 1155. The debtor’s right to be released
(1) If a disputed right has been sold, the party against whom the claim is made shall be released if he pays the buyer the sale price, the sale expenses and the interest on the price and on the sale expenses calculated from the date on which the price and expenses were paid.
(2) The right stipulated in paragraph (1) may not be exercised if the sale is made to a creditor in order to pay him what is owed to him, to a co-owner or to an heir of the property which is the subject of the disputed right, nor in relations between businesss. Likewise, the right may not be exercised if there is a court decision confirming the disputed right or if this right has been established and the dispute is ready to be judged.
Section 7
Sale-purchase of consumer goods
Article 1156. Scope of application
(1) The provisions of this section apply whenever a consumer purchases tangible movable goods from a business.
(2) The provisions of this section shall not apply to:
a) goods sold by forced performance or otherwise, by the authority of the law;
b) contracts for the provision of public water supply and sewerage services, contracts for the supply of natural gas, contracts for the supply of electricity, when these are not put up for sale in a limited volume or in a pre-established quantity, nor contracts for the supply of thermal energy and those for the supply of digital content that is not delivered on a material medium.
(3) The provisions of this section shall apply accordingly to other contracts by which a business is obliged to transfer to the consumer the right of ownership of a tangible movable good in exchange for consideration, unless the law, the contract or the nature of the obligation provides otherwise.
(4) Any clause contrary to the provisions of this section to the detriment of the consumer shall be absolutely null and void.
Article 1157. The moment of existence of the defect and its reversal
probationary period
(1) By way of derogation from the provisions of art. 1123 paragraph (1), the consumer may exercise his rights resulting from the existence of the defect if he proves that the defect existed at the time he took possession of the good, regardless of the time of the transfer of risks and even if the defect is discovered later.
(2) If the consumer, within 6 months of taking possession of the good, discovers a defect, it is presumed that the good was defective at the time of taking possession of the good, unless the presumption is incompatible with the nature of the good or the defect.
Article 1158. Delivery of the goods to the consumer
and the resolution
(1) Unless the parties have agreed otherwise on the time of delivery, the business must deliver the good by transferring possession or control of the good to the consumer, without undue delay and, in any case, within 30 days of the conclusion of the contract.
(2) If the business has not fulfilled his obligation to deliver the goods at the time agreed with the consumer or within the period set out in paragraph (1), the consumer may request delivery within an additional period appropriate to the circumstances. A period of at least 15 days is presumed appropriate. If the business does not deliver the goods within the additional period, the consumer has the right to terminate the sale-purchase.
(3) By way of derogation from the provisions of paragraph (2), the consumer has the right to terminate the sale-purchase, without granting an additional term, for the fact that the business has not fulfilled his obligation to deliver the good at the time agreed with the consumer or within the term established in paragraph (1), in one of the following cases:
a) the business refused, by an unequivocal statement, to hand over the good;
b) delivery within the agreed deadline is essential considering all the circumstances accompanying the conclusion of the contract;
c) the consumer has informed the business, before the conclusion of the contract, that delivery on a precise date or at the latest on a specified date is essential.
(4) In the event of termination of the sale-purchase, the business must refund to the consumer all amounts paid under the contract within the period indicated in art. 863 paragraph (2).
(5) In addition to the termination of the sale-purchase in accordance with the provisions of this article, the consumer may resort to other legal means of defending his rights provided for by law or contract.
Article 1159. Transfer of risk
(1) In the case of contracts where the business dispatches the goods to the consumer, the risk of destruction, including loss, or accidental damage to the goods passes to the consumer when the consumer or a third party designated by him, other than the carrier, takes possession of the goods or obtains control over them. The consumer is deemed to have acquired possession of the goods when the consumer or a third party designated by him, other than the carrier, receives them. The consumer is deemed to have control over the goods if the consumer or a third party designated by him, other than the carrier, has access to the goods in order to use them as an owner or can resell them.
(2) However, the risk is transferred to the consumer at the time of handing over the goods to the carrier, if the carrier has been instructed by the consumer to transport the goods and this option has not been offered by the business, without prejudice to the consumer’s rights against the carrier.
(3) In the event of the return of the good as a result of the consumer exercising a right to revoke the contract granted by law, the risk of destruction, including loss, or accidental damage to the good passes to the business at the moment when he or the third party designated by him, other than the carrier, takes possession of the good.
Article 1160. Special provisions for guarantees
trader
(1) In the case of the sale-purchase of consumer goods, the commercial guarantee within the meaning of art. 1130 must be formulated simply and intelligibly. The commercial guarantee must contain:
a) reference to the consumer’s legal rights and the fact that these will not be limited by the commercial guarantee;
b) all the information necessary to benefit from the commercial guarantee, in particular the duration and spatial applicability of the protection provided by the commercial guarantee; the name or business name and address of the person granting the guarantee; the name or business name and address of the person who must be notified of the defect and the notification procedure.
(2) The consumer may request that the guarantee statement be made available to him in textual form on a durable medium.
(3) The effect of the guarantee obligation is not impaired if one of the requirements referred to in paragraphs (1) and (2) is not met.
(4) Any stipulation according to which the commercial guarantee is conditional on the consumer completing any formality, such as registration or notification of the purchase, is null and void.
(5) The stipulation that the commercial guarantee is limited to certain parts of the goods shall only be effective if it is clearly stated in the guarantee statement.
(6) The stipulation according to which the obligation of the guarantor under the commercial guarantee is excluded or limited in the event of a defect in the goods as a result of a breach of the maintenance conditions provided for in the instructions shall only be effective if the exclusion or limitation is clearly provided for in the guarantee statement.
(7) If the consumer makes claims within the commercial guarantee period, the guarantor shall bear the burden of proving that:
a) the good corresponded to the characteristics set out in the warranty statement or in the respective advertising; and
b) the defect of the good occurred due to its improper use or storage, due to an event beyond the control of one of the parties or due to another cause that is not attributable to the guarantor.
Article 1161. Public offering of goods
Displaying the good with labels in the window, making the menu available, advertising the good, describing it in catalogs and other proposals addressed to an undetermined circle of persons are considered a public offer for the conclusion of a contract for the sale and purchase of consumer goods, regardless of whether the price of the good and other essential clauses for the conclusion of the contract are indicated.
Article 1162. Sale of goods with the use of devices
automated
(1) If an automatic device is used to sell the goods, its owner must inform the buyer, by displaying on the device (or in another place), the name of the seller, contact details, the name and price of the goods, and instructions on the actions that the buyer is to take for payment and receipt of the goods.
(2) The sale-purchase contract with the use of the automatic device is considered concluded at the moment of performing the necessary actions for receiving the goods.
(3) If the automatic machine is used for exchanging coins and banknotes, foreign currency, or purchasing tickets, the rules regarding the sale-purchase of consumer goods shall apply unless otherwise provided by law or the essence of the obligation.
Article 1163. Price of consumer goods
The price and other essential clauses of the contract for the sale and purchase of consumer goods are established equally for all buyers.
Article 1164. Exchange of purchased goods
for consumption
(1) The consumer has the right, within 14 days from the moment of receipt of the non-food good, if the seller has not established a longer term, to exchange the good at the place of purchase or at another place, established by the seller, with a similar good of a different size, shape, dimensions, model, color or completion, etc., with the recalculation, in the case of a price difference.
(2) If the goods necessary for the exchange are missing, the consumer has the right to declare the termination of the sale-purchase and to return the purchased goods, and the seller is obliged to refund the amount paid.
(3) The consumer’s request to exchange the good or the declaration of withdrawal shall be effective if the good is not used, has not lost its consumer qualities and if there is proof that it was purchased from the respective seller.
(4) The goods that cannot be exchanged or returned under this article shall be established by law or other normative acts.
Article 1165. Exclusion or limitation of rights
results from the existence of the vice
(1) Any clause or agreement concluded between the consumer and the seller before the seller is notified of the discovery of the defect, which directly or indirectly excludes or limits the consumer’s rights provided by law resulting from the existence of the defect, shall be deemed to be absolutely null and void.
(2) However, if the good sold has been previously used, the parties may agree to reduce the term provided for in art. 1126 para. (1) letter c) to 1 year.
Article 1166. The consumer’s right to termination
The consumer may declare the termination of the sale-purchase pursuant to art. 916-918 or, as the case may be, art. 919 regardless of the significance of the defect, except in the case where the defect is minor.
Section 8
Sale-purchase of real estate
Article 1167. Sale-purchase of real estate
without indication of surface
When a specific real estate property is sold, without indicating the area, for a total price, neither party can invoke either error or material defect on the grounds that the area is smaller or larger than they thought.
Article 1168. Sale-purchase of real estate
with indication of the surface
(1) If, in the sale-purchase of an immovable property with the indication of the area and the price per unit of measurement, the actual area is smaller than that indicated in the contract, the buyer may request the seller to provide him with the agreed area. When the buyer does not request or the seller is unable to provide this area, the buyer may obtain either an appropriate reduction in the price or the termination of the sale-purchase if, due to the difference in area, the property can no longer be used for the purpose for which it was purchased.
(2) If the actual area proves to be greater than the stipulated area, and the excess exceeds one twentieth of the agreed area, the buyer shall pay the corresponding price supplement or may declare the termination of the sale-purchase. However, when the excess does not exceed one twentieth of the agreed area, the buyer shall not have the right to termination, but shall not be obliged to pay the price of the excess.
Article 1169. Delivery of real estate
The delivery of the real estate is made by making it available to the buyer, free of any goods of the seller that are not the subject of the contract.
Article 1170. Sale-purchase contract
of the property under construction
(1) The provisions of this article and of articles 1171-1176 shall apply to the sale-purchase contract by which the seller undertakes to ensure the construction of an apartment, other isolated room or other immovable property under construction (immovable property under construction) and to hand it over to the buyer, and the buyer undertakes to pay the agreed price and to receive the immovable property after it is put into operation.
(2) Any clause that derogates from the provisions of this section to the detriment of the consumer buyer or that excludes or limits the rights provided by law of the consumer buyer of the real estate under construction is absolutely null and void.
(3) The provisions of this article and of articles 1171-1176 shall apply accordingly to preliminary contracts for the sale and purchase of real estate under construction, as well as to any other contracts or arrangements, regardless of their name, by which a person is promised or reserved a real estate under construction in exchange for a consideration.
Article 1171. Content of the sale-purchase contract
of the real estate under construction and the obligations
seller’s information
(1) The sale-purchase contract for real estate under construction must provide for:
a) the cadastral number of the real estate under construction;
b) the number and date of issue and expiration of the building permit on the basis of which the seller constructs or ensures the construction of the object of the contract; identification data of the construction project;
c) the nature of the right that the seller holds over the land on which construction is being carried out (property or superficies right), as well as the basis for acquiring this right. In the case of superficies, the term of the superficies and the effects of the termination of the superficies right provided for by law and, where applicable, by the act of constitution of the superficies shall be provided;
d) the share of the right to the land, construction and other common parts that is transferred to the buyer;
e) if any, description of the exclusive use rights granted to the buyer over certain common parts of the condominium, according to the deed of incorporation of the condominium;
f) the assumed date of commissioning, determined by indicating a specific calendar date;
g) the total price and, where applicable, the installment payment schedule, which complies with the provisions of art. 1173;
h) if agreed, the fact that the buyer acquires the right of ownership only after paying 95% of the price (retention of ownership).
(2) The following shall be annexed to the contract:
a) copy of the building permit;
b) a copy of the plan of the object of the contract, approved in the established manner.
(3) Before concluding the contract and, at the buyer’s request, at any time during its performance, the seller is obliged to inform the buyer:
a) the construction project and, at the buyer’s request, to provide him, under the seller’s own signature, copies of the construction project or certain sheets requested by the buyer;
b) the deed of incorporation of the condominium and, if any, the statute of the condominium owners’ association, as well as the condominium regulations;
c) the identity of the contractor and other suppliers;
d) the current stage of construction performance.
Article 1172. Provisional registration of the right
property and disposition documents
of the buyer
(1) The buyer’s ownership right is subject to provisional registration in the real estate register.
(2) It is prohibited to collect from the buyer any payments provided for in the contract before the provisional registration according to paragraph (1).
(3) The buyer retains the right to alienate or encumber with limited real rights the provisionally registered property right without the seller’s consent.
(4) The person who acquires the provisionally registered ownership right from the buyer shall be subrogated to all rights and obligations that the buyer holds under the contract of sale and purchase of the real estate under construction without the consent of the seller. The buyer shall remain jointly and severally liable with the new acquirer of the real estate under construction, unless the seller has consented to this alienation. The legal provisions regarding the notification of the assignment of receivables shall apply accordingly.
Article 1173. Limitations on making payments
under the contract
(1) Payments made by the buyer under the contract may not exceed the following limits:
a) 5% of the total price – after provisional registration according to art. 1172 paragraph (1), but until the completion of the foundation of the construction in which the real estate is located;
b) 35% of the total price – after completion of the foundation of the construction in which the real estate is located;
c) 70% of the total price – after the installation of the roof and the exterior walls of the building in which the real estate is located;
d) 95% of the total price – after the construction in which the real estate is located is put into operation;
e) 100% of the total price – after justification of the ownership right according to art. 1174 paragraph (6) or, if the buyer has submitted well-founded claims regarding the defects of the real estate, after the defects have been removed.
(2) The buyer may request the seller to refund the amounts paid under the contract exceeding the limits provided for in paragraph (1), even if he was aware of this circumstance.
Article 1174. Risks, performance and completion
construction works
(1) The risk of accidental loss or damage to the real estate passes to the buyer from the moment the parties sign the handover-receipt deed, in written form.
(2) The seller’s obligation to ensure the construction of the real estate extends to all other works necessary for the full implementation of the construction project provided for in the contract.
(3) If several buyers are members of the condominium co-owners’ association or of another form of condominium administration, this community or association may also exercise against the seller the rights resulting from the improper performance of the construction project provided for in the contract.
(4) The contractor and other suppliers contracted by the seller in connection with the performance of the construction and the seller are jointly and severally liable, under the agreed contractual conditions, in the event of improper performance of the works and other services necessary for the full implementation of the construction project provided for in the contract. For this purpose, the buyer or the community or, as the case may be, the condominium owners’ association may request from the seller an extract from the contract between the seller and the contractor in the part concerning the obligations, guarantees and liability of the contractor.
(5) The seller is obliged to ensure the completion of the construction works and the commissioning of the real estate or the construction of which the real estate is a part by the commissioning date agreed in the contract.
(6) The provisional registration of the buyer’s ownership right shall be justified, and the buyer shall become the unconditional owner of the real estate and of the share in the common parts, by the handover-receipt deed signed after the commissioning and, in the case of reservation of ownership, by the confirmation issued by the seller, in written form, of the payment of 95% of the total contract price. In the case of justification of the provisional registration, the seller’s ownership right shall be removed from the real estate register.
(7) The signing by the buyer of the handover-receipt act does not deprive him of the rights resulting from the existence of a defect in the real estate or in the works provided for by the contract. The claims raised by the buyer regarding the defects do not constitute grounds for the seller to refuse to sign the handover-receipt act. The provisions of art. 1123 para. (2) do not apply.
Article 1175. Securitization trust account clause
(1) By contract, the parties may provide that all or certain amounts paid by the buyer under the contract until the signing of the deed of handover-receipt of the real estate shall be paid to a sequestration fiduciary account whose fiduciary is the bank, from which payments may be released to the seller’s account as the corresponding stage of performance of the construction works is completed, in the manner established by the contract.
(2) The amounts paid by the buyer to the sequestration fiduciary account shall be released from it and paid to the seller’s account:
a) upon the order, addressed to the bank, signed by both parties; or
b) upon the order, addressed to the bank, of an independent third party designated by the parties by contract. The third party may be a notary, lawyer, authorized administrator, a legal person under private law, as well as a legal person under public law with responsibilities in the field of construction.
(3) In the case provided for in paragraph (1), the buyer’s claims for the refund of the amounts paid under the contract shall be satisfied from the funds of the sequestration trust account within the limits of the amounts paid by the buyer pursuant to paragraph (1), but excluding the amounts released to the seller pursuant to paragraph (2). The balance of the sequestration trust account may be pursued by other creditors of the seller only after the full refund of the amounts paid into that account by those who purchased the real estate under construction from the seller.
(4) The provisions of this article shall apply even if insolvency proceedings have been initiated against the seller.
Article 1176. Buyer protection in the event of
the seller’s insolvency
(1) If insolvency proceedings have been filed against the seller before the provisional registration of the buyer’s ownership right has been justified in accordance with art. 1174 paragraph (6), the buyer has the option:
a) to request justification for the provisional registration of his/her ownership right over the real estate and his/her share in the common parts in the state in which they are located;
b) to declare the termination of the sale-purchase and to request the refund of the amounts paid and other amounts to which he is entitled.
(2) The legal provisions regarding alternative obligations shall apply accordingly.
(3) If the buyer has requested justification in accordance with paragraph (1) letter a), the seller’s insolvency administrator is obliged to sign the handover-receipt deed of the immovable property and the share of the common parts in the condition in which they are, subject to the payment by the buyer of any amounts due under the contract in proportion to the stages of construction work completed. However, the buyer is entitled to a refund of the amounts paid under the contract to the extent that they exceed this proportion.
(4) The buyer’s right to compensation for damage remains unaffected.
Section 9
Auction sale
Article 1177. Method of sale at auction
(1) Sale at auction may be voluntary or forced.
(2) Forced sale is subject to the rules stipulated in this section, to the extent that there are no special regulations.
Article 1178. Setting the price or other conditions
The seller may establish the price or other conditions of sale. This stipulation is not binding on the successful bidder if it has not been communicated to the persons present before the receipt of the bids.
Article 1179. The right not to denounce one’s identity
The seller has the right not to disclose his identity at the auction, but if his identity has not been communicated to the auctioneer, the auctioneer is personally liable for all the seller’s obligations.
Article 1180. Prohibition on withdrawal of the offer
The bidder does not have the right to withdraw his bid.
Article 1181. Time of sale
The auction sale is concluded by the auctioneer awarding the property to the last bidder. The entry in the auctioneer’s register of the name or designation of the auctioneer and his bid constitutes proof of the sale, but if such entry is missing, evidence with witnesses is admissible.
Article 1182. Drawing up a contract for the sale of real estate
The seller and the auctioneer of a property must draw up the contract for the sale and purchase of the property within 10 days of the request of the other party.
Article 1183. Consequences of non-payment of the price
by the auctioneer
(1) If the successful bidder does not pay the price under the terms of the contract, the successful bidder has the right, in addition to the remedies available to the seller, to resell the property at the next auction in accordance with custom and only after appropriate notification of the successful bidder.
(2) The successful bidder shall not be entitled to participate in the auction again and shall be obliged to pay the difference between the price at which the property was sold to him and the price at which it was resold, if this is lower, but shall not be entitled to claim the excess. He shall also be liable, in the event of a forced sale, to the seller, to the person in whose favour the property was seized and to the creditor who obtained a judgment for the interest, costs and damages caused by non-performance.
Article 1184. The right of the adjudicator to compensation
(1) The successful bidder whose ownership right over an property acquired at auction is impaired by a seizure exercised by a creditor of the seller may claim from the seller the price paid, the related interest and the costs. He may also obtain the price, the related interest and the costs from the creditor of the seller to whom the property was transferred.
(2) The adjudicator may request from the creditor in whose favor the seizure was instituted the compensation for the damage caused by the irregularities of the seizure or the sale.
Section 10
Sale-purchase of the enterprise
as a heritage complex
Article 1185. Sale-purchase contract
of the enterprise
(1) Based on the enterprise sale-purchase contract, the seller undertakes to transfer the enterprise as a single patrimonial complex to the buyer, with the exception of inalienable rights and obligations.
(2) The right to the company name, production marks and other means of individualization of the enterprise and its production, works and services, as well as the right to use these means of individualization that belong to it under the license, shall be transferred to the buyer unless otherwise provided in the contract.
Article 1186. Form of the sale-purchase contract
of the enterprise
The contract of sale and purchase of the enterprise as a single patrimonial complex shall be concluded in writing under penalty of nullity. If the single patrimonial complex includes property for the alienation of which the law requires an authentic form, the contract shall be concluded in an authentic form.
Article 1187. Valuation of the enterprise’s property
(1) The composition of the enterprise and its value are determined based on the inventory act (minutes) drawn up in accordance with the inventory rules.
(2) Prior to signing the contract, the parties must prepare and examine the inventory act, the balance sheet, the independent auditor’s conclusion on the composition and value of the enterprise, the list of the seller’s debts included in the composition of the enterprise with an indication of the creditors, the nature of the debt, the amount and the terms for the performance of the obligations.
(3) The property of the enterprise, the rights and obligations recorded in the documents indicated in paragraphs (1) and (2) shall be transferred to the buyer unless otherwise provided in the contract or in art. 1185.
Article 1188. Creditors’ rights
(1) The seller’s creditors must be informed, prior to the handover of the enterprise to the buyer, of the fact that the enterprise has been sold by one of the parties.
(2) The buyer is jointly and severally liable with the seller, within the limits of the property transferred to him, for the seller’s debts incurred until the sale of the enterprise.
(3) The buyer’s liability provided for in paragraph (2) cannot be excluded or limited by agreement with the seller.
Article 1189. Transfer of the enterprise
1) The transfer of the enterprise to the buyer is carried out on the basis of the transfer deed, which indicates the data on the goods transferred, the fact that creditors are notified, and the defects of the enterprise.
(2) The expenses of preparing the enterprise for handover, including the preparation of the handover act, shall be borne by the seller unless otherwise provided in the contract.
(3) The enterprise is considered to be handed over to the buyer at the moment of signing the handover deed by both parties. From this moment, the risk of accidental loss or damage to the enterprise passes to the buyer.
Article 1190. Transfer of ownership
(1) Unless otherwise provided in the contract, the ownership right over the goods and rights constituting the enterprise shall pass to the buyer in accordance with the general provisions regarding the sale of goods or rights of that type.
(2) In the case of the sale of the enterprise subject to retention of title, the buyer has the right, until the acquisition of the right of ownership, to dispose of the property and non-property rights included in the composition of the transferred enterprise to the extent necessary for the purpose for which it was purchased.
Section 11
Sale-purchase with reservation of title
Article 1191. Reservation of property
(1) When, in a sale-purchase with payment of the price in installments, the payment obligation is guaranteed by the reservation of ownership (reservation of ownership), the buyer acquires the ownership right on the date of payment of the last installment of the price.
(2) However, the risk of destruction, including loss, or accidental damage to the goods is transferred to the buyer in accordance with art. 1114.
(3) The provisions of this section shall apply accordingly when the transfer of ownership to the buyer is suspended until a condition other than payment of the price is fulfilled.
(4) The provisions of this section shall also apply accordingly to the reservation of ownership stipulated in other contracts by which a party is obliged to transfer the ownership right over an property in exchange for a consideration, unless the law, the contract or the nature of the obligation results otherwise.
Article 1192. Enforceability of the reservation of ownership
towards third parties
(1) The reservation of ownership becomes enforceable against third parties after the following publicity formalities have been completed:
a) in the case of real estate and other goods over which the ownership right is acquired, according to the law, by registration in an advertising register, the buyer’s ownership right is provisionally registered, while the seller’s ownership right is not deleted;
b) in the case of other movable property, the reservation of ownership shall be registered in the register of movable real guarantees. However, if this registration has not been made, the reservation of ownership may be invoked against third parties who have learned of its existence in another way.
(2) The reservation of ownership cannot be invoked against third parties who have acquired rights relating to the property from the buyer if the reservation of ownership was not opposable to them on the date of conclusion of the act of acquisition of the right.
Article 1193. The seller’s special right of termination
The seller may declare the termination of the sale-purchase subject to retention of title if:
a) the buyer’s insolvency proceedings have been filed;
b) the buyer did not offer the personal or real guarantees provided for in the contract or reduced the guarantees offered without the seller’s consent;
c) an installment is not paid, in whole or in part, more than 45 days after the due date;
d) during any period of 12 consecutive months, two or more installments have not been paid in full when due;
e) other circumstances provided for by law or contract arise.
Article 1194. Recovery of the property by the seller
(1) If the seller has declared the resolution of the sale-purchase, the seller may recover the property from the buyer, as well as from any third party against whom the reservation of ownership is opposable.
(2) The seller may also recover the property in accordance with the legal provisions regarding the voluntary or forced transfer of possession of the pledged or, as the case may be, mortgaged property.
(3) The rights established or transferred by the buyer for the benefit of third parties against whom the reservation of ownership is enforceable shall lapse upon the termination of the sale-purchase under reservation of ownership, with the exception of rights consented to by the seller.
(4) If the seller, after recovering the good, sells it repeatedly to a third party, any surplus obtained from the repeated sale compared to the initial sale price belongs to the seller.
(5) If the seller’s claim secured by the retention of title has become time-barred or if the property is in the possession of a third party against whom the retention of title is enforceable, the seller may also request the surrender of the property by way of a claim action.
Chapter II
EXCHANGE
Article 1195. Exchange contract
(1) The parties to the exchange contract have the obligation to mutually transfer the ownership of a good.
(2) Each party to the exchange contract is considered the seller of the good he alienates and the buyer of the good he receives in exchange.
Article 1196. Rules applicable to exchange
The rules of the sale-purchase contract shall apply accordingly to the exchange contract.
Article 1197. Compensation of the difference in value
(1) If the exchanged goods do not have the same value, the difference in value may be compensated by a sum of money, called compensation, if this is provided for by the contract.
(2) A contract is a sale-purchase contract, and not a barter contract, if the result exceeds the value of the property that has the lower value.
Chapter III
DONATION
Article 1198. Donation contract
(1) By means of a donation contract, one party (donor) undertakes to increase the property of the other party (donee) from his or her own property, free of charge.
(2) The donation contract by which the donor undertakes to transmit in the future all or a fraction of the current patrimony without specifying the goods to be handed over is null and void.
(3) The donation contract stipulating the donee’s obligation to pay debts or charges that do not exist at the time of concluding the contract is null and void if the nature and extent of the debts or charges are not stipulated in the contract.
(4) The contract that provides for the delivery of the property after the death of the donor is null and void. The legal provisions regarding the will shall apply to the will expressed by the donor.
(5) Any clause of the donation contract that derogates from the provisions of this chapter to the detriment of the donor is null and void.
Article 1199. Donation offer
If a movable property is transferred without the consent of the other party, the transferor may set a reasonable time limit for the transferee to declare that he accepts or refuses to accept the donation. Upon expiry of the time limit, the contract is deemed to be concluded if the other party has not refused the donation. In case of refusal, the transferor has the right to demand the return of the property in accordance with the rules on unjust enrichment. The provisions of art. 1024 remain applicable.
Article 1200. Form of the contract and preliminary contract
donation
(1) The donation contract shall be concluded in authentic form.
(2) Failure to comply with the authentic form shall not affect the validity of the donation contract if the donated property has been handed over to the donee. However, if the object of the donation is property for the sale (alienation) of which a certain form of the contract is provided for by law, the same form shall be required for the donation contract.
(3) Regardless of the nature of the property, the preliminary donation contract shall be concluded in authentic form.
The right to demand the forced performance in kind of the preliminary donation contract is excluded.
Article 1201. The notary’s obligation to provide information
pRE
If the object of the donation is a residential property, the notary who authenticates the donation contract is obliged, before concluding the contract:
a) to send to the donor, who is a natural person, against signature, information on paper, written in simple and intelligible language, in a language in which the donor can communicate, that the donee does not bear, based on the donation contract, any obligation to maintain the donor and has no obligation to provide the donor with housing, unless such a task has been stipulated in the donation contract;
b) to explain to the individual donor, in a language in which he can communicate, the information transmitted according to letter a).
Article 1202. Donation contract in the form of
of periodic payments
If the donation contract stipulates the obligation regarding material support in the form of periodic payments, this obligation ceases upon the death of the donor unless otherwise provided in the contract.
Article 1203. Inadmissibility of donation
It is prohibited, under penalty of absolute nullity, to make a donation, except for insignificant donations, to fulfill moral obligations:
a) on behalf of a minor or a person in respect of whom a judicial protection measure has been established. This rule does not apply to donations which, according to the law, can be granted independently by the minor or the adult in respect of whom a judicial protection measure has been established;
b) owners, administrators or workers of medical, educational, social assistance and other similar institutions on behalf of the person residing in them or on behalf of his/her spouse or relatives up to the fourth degree inclusive. This rule does not apply to relationships between relatives up to the fourth degree inclusive;
c) in relations between legal persons with a profit-making purpose;
d) by legal persons with a profit-making purpose, if the object of the donation is securities.
Article 1204. Conditional donation
(1) The parties may agree that the effects of the donation shall be conditioned on the performance of a task or the achievement of a purpose. The purpose may also be of public utility. Only the excess of the expenses incurred in performing the task or achieving the purpose shall constitute a donation.
(2) The performance of the task may be requested, apart from the donor, by any person in whose interest the task is stipulated.
(3) If the donee fails to fulfill the task, the donor may exercise the legal means of defense of the creditor provided by law in case of non-performance of obligations.
Article 1205. Lack of obligation to pay interest
of delays or penalties
The donor who is in arrears is not obliged to pay late payment interest or, as the case may be, penalties.
Article 1206. Donor’s liability for defect
the donated property
(1) If a defect in the donated property is concealed with deceit or gross negligence, the donor is obliged to compensate the donee for the damage caused thereby. In this case, the donee may not demand the delivery of another property or the free remedy of the defect under art. 913.
(2) If the donee declares the termination of the donation due to the defect of the donated property, the provisions of art. 929 paragraph (3) shall not apply.
(3) In the case of a donation under conditions or with encumbrances, within the limit of their value, the donor is liable for hidden defects as well as the seller.
Article 1207. Irrevocability of donation and its exceptions
(1) The donation is irrevocable, except in cases where the donor’s right of revocation is provided for by law or contract.
(2) In particular, the contract may provide for the right of revocation, either in the event that the donee predeceases the donor, or in the event that both the donee and his descendants predecease the donor.
(3) The donor exercises his right of revocation by notification addressed to the donee or his heirs.
(4) In the event of revocation of the donation pursuant to art. 1210, the right of revocation may also be exercised by any heir of the donor.
(5) In the event of revocation of the donation pursuant to art. 1211, the right of revocation may also be exercised indirectly by creditors who have the legal right to receive maintenance from the donor.
(6) The declaration of partial revocation of the donation shall be interpreted as revocation of the entire donation if the donated property is indivisible.
Article 1208. Deadline for revocation of donation
The donor or, in the case provided for in art. 1207 paragraph (4), his heir is deprived of the right to revoke the donation under the law if the notice of revocation is not given within 1 year from the moment when he became aware or, reasonably, should have become aware of the circumstance that entitles him to revoke, but no later than 3 years from the moment when the donee acquired the right of ownership over the donated property.
Article 1209. Effects of revocation of donation
(1) In the event of revocation of the donation, the unfulfilled obligations of the parties arising from the contract shall be extinguished. In the event of partial revocation, the unfulfilled obligations shall be extinguished only in the part corresponding to the partial revocation.
(2) In the event of revocation of the donation, the donee is obliged to return the donated property. The provisions of art. 1990-1995 shall apply accordingly, subject to the application of the provisions of art. 1210 paragraph (3).
(3) The death of the donor after the revocation of the donation does not extinguish the donee’s obligation to restitution.
Article 1210. Revocation of donation for ingratitude
(1) The donor has the right to revoke the donation if the donee has attempted to kill the donor or a person close to him, if he is guilty of another unlawful act against the donor or a person close to him, which attests to serious ingratitude, or if he refuses without good reason to grant the donor the maintenance due.
(2) Revocation for ingratitude is excluded if the donor, knowingly, forgives the donee.
(3) In the case of revocation for ingratitude, the donee may not invoke the exception of diminution of enrichment provided for in art. 1994.
Article 1211. Revocation of donation in case of state
of need
(1) The donor has the right to revoke the donation if he is unable to support himself from his property or income.
(2) It is presumed that the donor is unable to support himself if the conditions established by law for requesting maintenance from another person or for receiving social security benefits in the public system are met, even if the donor has not exercised these rights.
(3) The right of revocation is suspended for the period during which the donee maintains the donor and the latter has the legal right to be maintained. During the same period, the period for revocation of the donation is suspended. If the donee ceases to maintain and the donor revokes the donation, the donee’s obligation to restitution shall be reduced by the amount of the maintenance provided.
(4) The donor who is unable to support himself within the meaning of paragraphs (1) and (2) or who is imminently in this situation may suspend the performance of his remaining unfulfilled obligations arising from the donation contract. The provisions of paragraph (3) shall apply accordingly to the right to suspend performance. If the donor suspends performance, the donee may declare the termination of the donation.
(5) The provisions of this article shall also apply if the revocation of the donation depends on either the donor’s ability to fulfill the maintenance obligations provided for by law or by court decision, or the occurrence of those obligations.
Article 1212. Right of revocation for other reasons
BASED
(1) The donor has the right to revoke the donation in the event that there are other decisive circumstances that formed the basis for the conclusion of the contract (fatal illness of the donor, intention to marry or marriage of the donee, marital relationship between the donor and the donee, etc.) and which have changed essentially after the conclusion of the contract, if as a result of this change:
a) the benefit offered to the donee is manifestly inappropriate or excessive; or
b) it is manifestly unfair to force the donor to respect the donation.
(2) The right of revocation provided for in paragraph (1) arises only if:
a) the change in circumstances was so unforeseeable that the donor, at the time of the conclusion of the contract, could not reasonably have foreseen it; and
b) the donor did not assume the risk of this change in circumstances.
Chapter IV
ALIENATION OF THE GOOD WITH THE CONDITION
LIFETIME MAINTENANCE
Article 1213. Contract for the alienation of property
with the condition of lifelong maintenance
(1) Under the contract of alienation of property subject to maintenance for life, one party (the beneficiary of maintenance) undertakes to transfer to the other party (the acquirer) ownership of an immovable or movable property, and the acquirer undertakes to provide the beneficiary with maintenance in kind – housing, food, care and necessary assistance during his or her lifetime, as well as burial. This contract is for a consideration and is contingent.
(2) In the case of multiple parties, the maintenance obligation is indivisible, both actively and passively.
(3) The maintenance claim cannot be transferred to another person nor pursued by creditors.
(4) The rules regarding life annuity shall apply accordingly to the contract for the alienation of property subject to lifelong maintenance, if this is stipulated in the contract.
(5) Any clause of the contract for the alienation of property subject to lifelong maintenance that derogates from the provisions of this chapter to the detriment of the maintenance beneficiary is null and void.
Article 1214. Form of the alienation contract
of the good subject to maintenance
for life
(1) The contract for the alienation of property subject to lifelong maintenance shall be concluded in writing.
(2) If the alienation of the property requires compliance with the authentic form by law, the contract shall be concluded in authentic form.
Article 1215. Extension of the maintenance obligation
(1) The acquirer owes the maintenance beneficiary benefits established in an equitable manner, taking into account the value of the alienated property and the previous social condition of the maintenance beneficiary.
(2) Unless otherwise provided in the contract, the acquirer is obliged to provide the beneficiary, in particular, with food, clothing, footwear, housekeeping, as well as the use of suitable housing. Maintenance also includes the necessary care and expenses in case of illness.
(3) Any clause by which the maintenance beneficiary obliges himself to provide services is absolutely null and void.
Article 1216. Amendment of the alienation contract
of the property with the condition of lifelong maintenance
(1) In the event of non-performance by the acquirer of the maintenance obligation, the maintenance beneficiary may request through judicial means the establishment of the maintenance obligation by making periodic payments in money.
(2) The maintenance obligation may also be established by agreement of the parties.
Article 1217. Guarantees for the maintenance recipient
(1) During the life of the beneficiary of the maintenance, the acquirer shall not have the right to alienate the property. In the case of real estate and other property to which rights are acquired, according to the law, by registration in a public register, this prohibition shall be noted in the respective register.
(2) Pledge or otherwise encumber the property is permitted only with the consent of the maintenance beneficiary.
Article 1218. Risk of loss of property
The destruction or diminution of the value of the property for reasons not attributable to the maintenance beneficiary does not relieve the acquirer of the obligations he assumed under the contract.
Article 1219. Resolution of the alienation of property
with the condition of lifelong maintenance
(1) The beneficiary of maintenance is entitled to request termination under the law.
(2) The acquirer may declare the termination if the material situation does not allow him to continue performing the contractual obligations by virtue of circumstances beyond his control.
Article 1220. Effects of the resolution of the alienation of property
with the condition of lifelong maintenance
(1) In the event of termination by the maintenance beneficiary, he has the right to request either the return of the property or the payment of its value.
(2) Except in the case where the acquirer declares, under the law, the termination on the grounds of non-performance of the maintenance beneficiary’s obligation, the value of the maintenance provided by the acquirer must not be returned.
Article 1221. Effects of the death of the acquirer
(1) Upon the death of the acquirer, his rights and obligations pass to the heirs.
(2) The heir has the right to choose between the performance of obligations or resolution.
Chapter V
RENT
Article 1222. Rent
(1) Annuity is constituted by a contract under which one party (the annuitant) undertakes to pay periodically, free of charge or for a fee, a royalty to the other party (the annuitant).
(2) The rent may be paid in cash or in kind.
(3) The annuity may be established in favor of a third party.
(4) The legal provisions regarding donations shall apply accordingly to the annuity established free of charge.
(5) Any clause of the annuity contract that derogates from the provisions of this chapter to the detriment of the annuitant is null and void.
Article 1223. Term of the annuity
(1) An annuity is life annuity if its duration is limited by the life span of one or more persons.
(2) The annuitant must, in case of doubt, make the payment of the annuity during the life of the annuitant.
Article 1224. Form of the annuity contract
The contract that provides for the obligation to transmit the annuity in the future must be notarized.
Article 1225. Amount of the annuity
(1) The amount of the annuity is established by the parties.
(2) In the event of the death of one of the annuitants, the annuity shall be paid in full to the survivors unless otherwise provided in the contract.
Article 1226. Payment of annuity
(1) The periodicity and timing of the payment of the annuity shall be established by agreement of the parties, taking into account the form of the annuity.
(2) The life annuity is paid in advance.
(3) Cash annuity shall be paid in advance for 3 months unless otherwise provided in the contract. For other forms of annuity, the term of advance payment shall be established depending on the nature and purpose of the annuity.
(4) If at the beginning of the period for which the annuity is paid the annuitant is alive, he must be given the full annuity for this period.
Article 1227. Prohibition of alienation of property
received by the annuitant
(1) During the life of the annuitant, the debirentee may not, without the consent of the annuitant, alienate, mortgage or otherwise encumber the property transferred by the person who created the annuity. Enforcement of these property for other obligations of the debirentee is not permitted, except for the enforcement of a mortgage created with the consent of the annuitant.
(2) If an immovable property has been transferred to the debirentier, the prohibitions stipulated in paragraph (1) shall be entered in the immovable property register.
Article 1228. Changing the form of annuity payment
In the contract for the payment of an annuity in kind, the parties may agree to replace it with a sum of money paid periodically.
Article 1229. Preservation of the obligation in case of destruction
or accidental damage to the property
The obligation of the annuitant is not extinguished by the accidental destruction or damage of the property that was transmitted to him in connection with the establishment of the annuity.
Article 1230. Termination of annuity at the request of the person
who is entitled to maintenance
(1) The court shall pronounce the termination of the annuity upon the request of the third party who is entitled to be supported by the person obligated to pay the annuity if the latter, due to the annuity, cannot fulfill his obligations towards the third party. In the event of the termination, the property given by the person who constituted the annuity shall return to him.
(2) The annuitant may not claim from the annuitant the return of the installments paid.
Article 1231. Resolution of the annuity by one of the
part
(1) Both the annuitant and the annuitant have the right to terminate the annuity if, following non-performance of obligations or for other valid reasons, the continuation of these relations is no longer possible.
(2) Except in the case where the annuitant declares the termination due to non-performance of the annuitant’s obligations, the service provided by the annuitant is not refunded.
Article 1232. Stipulation of the imperceptible nature of the rent
The annuity contract can stipulate the imperceptible nature of the annuity only if it was established free of charge.
Article 1233. Consequences of the death of the annuitant
(1) In the event of the death of the debirentier, his obligation passes to the successors who inherited the property.
(2) The heir has the right to choose between the performance of obligations or the termination of the annuity.
Chapter VI
COMODATE
Article 1234. Commodity contract
(1) Through a contract of commodation, one party (commodator) undertakes to give an property for use free of charge to the other party (commodatoree), and the latter undertakes to return the property upon expiry of the term for which it was given.
(2) The contract of commodation may provide for compensation by the commodator for the wear and tear of the property.
Article 1235. Liability of the guarantor
(1) The bailor is liable only for intent or gross negligence.
(2) If the grantor does not fulfill the obligation to give the property, the grantee may only request compensation for the damage.
(3) If the grantor has cunningly concealed the defects of the property transferred for free use, the grantor is obliged to compensate the beneficiary for the damage caused in this way.
Article 1236. Wear and tear of property
The lessee is not liable for any modification or deterioration of the condition of the property if this occurs as a result of its use in accordance with the purpose established in the contract.
Article 1237. Obligations of the co-borrower
(1) The bailor must keep and care for the property with the diligence of a good owner and use it only for the purpose established in the contract or determined by the nature of the property.
(2) The lessee shall be liable for the expenses necessary for the use of the property. The lessee may claim compensation for extraordinary, necessary and urgent expenses that he was forced to incur for the preservation of the property.
(3) The lessee may not give the property for use to third parties except with the consent of the lessor.
Article 1238. Liability of the borrower
(1) If the lessee fails to fulfill his obligations stipulated in art. 1235, the lessor may immediately demand the return of the property and compensation for the damage caused.
(2) In case of non-performance of the obligations stipulated in art.1235, the lessee shall also be liable for the cause beyond his control if he does not prove that the damage would have occurred even if he had fulfilled his obligations. This rule shall also apply if the lessee does not return the property within the deadline.
(3) If several persons have jointly taken the same property in commodity, they shall bear joint and several liability towards the commodifier.
Article 1239. Obligation to return property
(1) The borrower is obliged to return, upon expiry of the term of the loan, the property received for free use.
(2) If the contract does not stipulate the term of the loan, the loanee is obliged to return the property at the end of its use for the purpose specified in the contract. The loaner may request the return of the property earlier if a sufficient period has passed for its use.
(3) If the term of the loan cannot be determined based on the purposes of use of the property, the loaner is entitled to request the return of the property at any time.
Article 1240. Retention of property
The lessee does not have the right to retain the property for claims against the lessor, except for claims regarding extraordinary, necessary and urgent expenses incurred for the preservation of the property.
Article 1241. Right to termination of the loan
The grantor may declare the resolution of the grantee if:
a) due to unforeseen circumstances, the grantor himself needs the property;
b) the lessee uses the property for purposes other than those established in the contract, gives the property, without the consent of the lessor, to a third party or subjects the property to great danger as a result of failing to exercise due care;
c) the borrower has died;
d) the legal person borrower has ceased its activity.
Chapter VII
LOAN
Article 1242. Loan agreement
(1) Through the loan contract, one party (lender) undertakes to give the other party (borrower) ownership of money or other fungible goods, and the latter undertakes to return the money in the same amount or goods of the same type, quality and quantity upon expiry of the term for which they were given.
(2) The loan agreement is free of charge unless the law or the agreement provides otherwise.
(3) Until proven otherwise, a loan for a sum of money is presumed to be for consideration, except in the case where both parties are natural persons who do not have the status of businesss.
(4) A contract shall not be considered a loan contract merely because it provides for a term for the performance of the pecuniary obligation, except in the case where the borrower is obliged to pay interest in addition to that pecuniary obligation.
(5) However, the parties may agree that an amount due under an existing obligation shall be paid in the future under the terms of a loan agreement.
Article 1243. Failure to fulfill the obligation to lend
If the lender does not fulfill the obligation to lend, the borrower can only demand compensation for the damage thus caused.
Article 1244. Interest under a loan agreement
(1) Under the loan agreement, the parties may also provide for the payment of interest, the annual rate of which may not exceed double the CHIBOR reference rate recorded on the banking day preceding the date on which the parties stipulated the interest rate. For the purposes of this paragraph, the CHIBOR reference rate is the rate calculated in the manner established by the National Bank of Moldova, based on the indicative/firm quotations of the contributing banks for the placement of funds in Moldovan lei with other banks, for a period of 12 months.
(2) The prohibition provided for in paragraph (1) shall not apply to interest charged or paid by the Ministry of Finance, the National Bank of Moldova, commercial banks, savings and loan associations, non-bank lending organizations, on the basis of loans granted through crowdfunding platforms, as well as in other cases provided for by law.
(3) The interest rate that violates the provisions of paragraph (1) shall be reduced by law to the maximum rate permitted under paragraph (1). Any clause to the contrary shall be null and void.
(4) For the purposes of this article, interest means both the amounts calculated in money under this title, as well as other benefits, under any title or name, to which the borrower undertakes as the price of using the loan.
(5) The amount of money borrowed shall bear interest from the day it was remitted to the borrower.
(6) Interest shall be paid at the end of each year for the period between the time indicated in paragraph (5) and the time of repayment of the loan, unless otherwise provided in the contract.
(7) If the borrower does not pay the interest on time, the lender may request the immediate repayment of the loan and the related interest.
Article 1245. Resolution for the worsening
the borrower’s situation
The lender has the right to declare the resolution and be released from the obligation to grant the loan if the borrower’s financial situation worsens substantially, which would jeopardize the repayment of the loan, even if the deterioration occurred before the conclusion of the contract and became known to the lender later.
Article 1246. Purpose of the loan
If the contract provides that the loan will be used for a stipulated purpose, the borrower is obliged to provide, at the lender’s request, the information necessary to allow the lender to verify compliance with the purpose.
Article 1247. Loan repayment
(1) The borrower must repay the loan within the term and in the manner established in the contract. If no interest has been established, he has the right to repay the loan before the expiration of the term. Such repayment shall have the effect of terminating the loan.
(2) The borrower must return goods of the same quality and quantity as the goods received and nothing more, even if prices have increased or decreased.
(3) If he has borrowed an amount of money, the borrower is obliged to repay the nominal amount received without taking into account the variations in the value of the money.
(4) If neither the repayment term nor the notice period is established in the loan contract, the loan must be repaid within 30 days from the date on which the borrower received the repayment request.
Article 1248. Effects of non-repayment of the loan
(1) If the borrower does not repay the loan on time, the provisions of art. 942 shall apply accordingly unless the law or the contract provides otherwise.
(2) If the contract provides for the repayment of the loan in installments and the borrower does not repay them in the established manner, the lender may request the immediate repayment of the entire loan and the related interest under the conditions established in art. 864 para. (2) and (4).
(3) If the borrower cannot return the property, he must pay its value calculated according to the place and time of performance of the obligation.
Article 1249. Effects of failure to comply with obligations
guarantee of performance
If the borrower fails to comply with his obligations regarding the guarantee of the return of the property, the lender may demand its immediate return and the related interest.
Article 1250. Liability of the lender
for the vices of good
(1) The lender is liable for defects in the property lent without interest in accordance with the rules of liability of the mortgagor.
(2) The lender is liable for defects in the property loaned with interest in accordance with the rules of seller’s liability.
Chapter VIII
lease
Article 1251. Lease contract
Through the lease agreement, one party (lessor) undertakes to give the other party (lessee) an individually determined property for temporary use or temporary use and possession, and the latter undertakes to pay rent.
Article 1252. Form of the lease agreement
The lease agreement for a real estate property must be drawn up in writing.
Article 1253. Maximum term of lease
The lease term cannot exceed 99 years.
Article 1254. Characteristics of the leased property
(1) The lessor is obliged to deliver the property to the lessee in the appropriate condition, according to the destination agreed upon in the contract, and to maintain the property in this condition during the lease term.
(2) The property given by the lessor must be free from any material or legal defect.
(3) The good is considered free from any material defect when it has the agreed characteristics.
The good is free from material defects if it can be used according to the intended purpose established in the contract, if no specific characteristics have been agreed upon, or according to the usual intended purpose of such goods if no use has been agreed upon.
(4) The property is considered free from any legal defect if no third party can exploit rights over this property during the period for which the contract was concluded.
(5) The lessor guarantees against material or legal defects even if he was not aware of them at the time of concluding the contract.
(6) Before exercising his rights, the lessee must inform the lessor about the defects of the property discovered.
Article 1255. Reduction of rent due to defect
the leased property
(1) If the property is affected by a defect, the tenant is released from paying a part of the rent in proportion to the reduction in the use of the property. The right to pay a reduced rent ceases when the defect is remedied. Insignificant defects are not taken into account.
(2) In the case of renting a dwelling, agreements that derogate from paragraph (1) to the detriment of the tenant are null and void.
Article 1256. Reparation of damage caused by defects
the leased property
(1) If a defect that reduces the use of the property exists at the time of conclusion of the contract or appears subsequently due to a cause for which the lessor is liable or if the lessor is in delay with regard to his obligation to remedy the property, the lessee may claim, in addition to his claims for a reduced rent, compensation for the damage caused.
(2) In the event of the lessor’s delay, the lessee may remedy the defect himself, requesting reimbursement of the useful expenses.
Article 1257. Effects of knowledge of the defect by
TENANT
If, at the time of concluding the lease agreement, he knew or should reasonably have known about the defect in the property and did not make claims in relation to this fact, the lessee will not benefit from the rights provided for in articles 1255 and 1256.
Article 1258. Nullity of the clause regarding the exemption
liability or its reduction
The clause on the basis of which the lessor is exempted from liability for defects or his liability is diminished cannot be invoked in the part where it refers to defects that the lessor has not previously brought to the attention of the consumer tenant. Any contrary clause to the detriment of the consumer is struck by absolute nullity.
Article 1259. Liability of the lessor for the act
third
(1) The lessor is obliged to repair the damage resulting from the disruption of the use of the property by a third party only if the third party is a tenant or if the lessor has allowed the third party to use the property or access it.
(2) If the use of the property is diminished, the lessee retains the right to other means he has against the lessor.
Article 1260. Effects of delay or refusal
handover of the leased property
If the lessor does not hand over the leased property on time or refuses to hand it over, the lessee is entitled to demand the performance of this obligation and the repair of the damage or the termination of the lease and the repair of the damage thus caused.
Article 1261. Prohibition of changing the form or
the destination of the leased property
Neither the lessor nor the lessee has the right to change the form or destination of the property during the lease.
Article 1262. Method of payment of rent
(1) The rent may be paid in full upon the expiry of the lease term. If the rent is paid for certain periods, it must be paid upon their expiry.
(2) Without prejudice to the provisions of art. 1264 paragraph (1) letter c), the payment of additional expenses is mandatory only if there is an agreement between the parties.
(3) If obstacles arise in the use of the leased property due to the fault of the lessee, he shall not be exempted from paying the rent.
Article 1263. Grounds and conditions for amendment
of the rent
(1) The amount of rent may be changed by agreement of the parties. The lessor may request the court to change the rent by court order only once a year and only if the economic conditions make the non-adjustment unfair, except in the case where the lessor has assumed the risk of changing economic conditions.
(2) The tenant has the right to request a reduction in the rent if the conditions stipulated in the contract for the use of the property or its condition have worsened, in accordance with the provisions of art. 933. The provisions of art. 901-946 remain applicable.
Article 1264. Obligations of the tenant
(1) The tenant is obliged:
a) to use the good for its intended purpose and in accordance with the terms of the contract;
b) to preserve and ensure the integrity of the property;
c) to cover the current expenses of use and maintenance in normal condition of the property;
d) to carry out routine repairs to the property.
(2) Current repairs involve interventions necessary as a result of the intended use of the property and which, in a fair manner, can be attributed to the lessee, taking into account in particular the nature of the property, the purpose for which it is used and the term of the lease.
(3) The tenant is not obliged to carry out current repairs only to remove the effects of normal wear and tear of the property.
Article 1265. Liability for wear and tear of property
rent
(1) The lessee is not liable for normal wear and tear of the leased property if it has been used for its intended purpose and in accordance with the terms of the contract.
(2) Normal wear and tear implies the usual and inevitable signs of prudent use accompanied by proper maintenance.
Article 1266. Obligation of the tenant in relation to others
residents
(1) The tenant has the obligation to act in a manner that does not prevent the normal use of the property by other tenants. The tenant is obliged to compensate the landlord and the other tenants for any damage that may result from the failure to perform this obligation, whether caused by him or by the persons to whom he has allowed the use of the property or access to it.
(2) The lessor has the right to terminate the lease in the event of non-fulfillment of the obligation provided for in paragraph (1).
Article 1267. Tenant’s right in case of disturbance
its use by another tenant
(1) The tenant whose use is disturbed by another tenant or by persons to whom he has allowed use of the property or access to it may obtain, depending on the circumstances, a reduction in rent or termination of the lease if he notifies the joint lessor of the violations affecting his use and if these persist.
(2) In addition to those provided for in paragraph (1), the tenant may request the joint lessor to repair the damage, except in the case where the latter demonstrates that he acted with prudence and diligence.
(3) The lessor may turn against the lessee who is guilty of the damage.
Article 1268. The lessor’s right to inspect
the leased property and to carry out
works on him
The lessor has the right to inspect the leased property, to carry out work on it and, in the case of real estate, to present it to potential buyers or tenants, being obliged to exercise these rights in a reasonable manner.
Article 1269. Compensation for damage suffered by the lessor
(1) The lessee is required to repair the damage suffered by the lessor through losses incurred to the leased property unless he proves that the losses are not due to his fault or the fault of the persons to whom he allowed the use of the property or access to it.
(2) If the leased property is a building, the lessee is not liable for the damage caused by fire unless it is proven that it is due to the act of the lessee or the persons to whom he has allowed use or access to the building.
Article 1270. Sublease or assignment of lease
(1) The lessee shall have the right to sublease the leased property or to assign the lease only with the consent of the lessor. For this purpose, he shall be obliged to inform the lessor of his intention and to indicate the name or designation, address of the person to whom he intends to sublease the property or assign the lease.
(2) The lessor may not refuse to consent to the sublease or assignment of the lease if, after the conclusion of the lease agreement, the lessee has a legitimate interest in giving the property, in whole or in part, to a third party. This provision shall not apply if the person of the third party constitutes an impediment, the leased premises thus becoming overloaded or if, for other valid reasons, the lessor cannot be required to allow the sublease or assignment of the lease.
(3) If the lessor does not consent to the sublease or assignment of the lease, the lessor is obliged to communicate the reasons to the lessee within 15 days; otherwise, it is considered that he has consented.
(4) The lessor who consents to the sublease or assignment of the lease may only demand compensation for reasonable expenses that may result from the sublease or assignment.
(5) In the case of sublease, the lessee retains his liability towards the lessor.
(6) The term of the sublease may not exceed the term of the lease.
(7) The assignment of the lease releases the previous lessee from obligations. If the object of the lease is a residential property, any clause contrary to this paragraph is null and void.
Article 1271. Direct actions against the subtenant
(1) In case of non-payment of the rent due under the lease, the lessor may pursue the subtenant up to the competition of the rent that the latter owes to the lessee. The subtenant may not oppose payments made in advance.
(2) Payment made by the subtenant, either pursuant to a clause of the sublease contract communicated to the lessor, or in accordance with local customs, is not considered to have been made in advance.
(3) The lessor retains the right provided for in paragraph (1) when the claim relating to the rent due under the sublease has been assigned.
(4) The lessor may also take direct action against the sublessee to compel him to perform the other obligations assumed under the sublease contract.
Article 1272. Effects of non-performance of obligations
by the subtenant
If the subtenant’s failure to perform an obligation causes substantial damage to the lessor or other tenants, the lessor may request the termination of the sublease.
Article 1273. Effects of non-performance of obligations
by the lessor
If the lessor does not fulfill his obligations, the sublessee may exercise the rights of the lessee to force him to fulfill his obligations.
Article 1274. Obligation to carry out capital repairs
(1) The lessor is obliged to carry out major repairs to the leased property unless the law or the contract provides otherwise.
(2) Major repairs shall be carried out within the time limit established in the contract or when it arises from a pressing necessity.
(3) Failure by the lessor to comply with the obligation provided for in paragraphs (1) and (2) shall entitle the lessee to carry out the major repairs and to charge the costs of the major repairs to the rent.
(4) Capital repairs involve all interventions necessary to fulfill the lessor’s obligation provided for in art. 1254 paragraph (1), with the exception of current repairs.
(5) In any case, the lessor shall be required to carry out the necessary repairs to remove the damage caused to the leased property by an event beyond the control of the lessee or the persons to whom he has allowed use of the property or access to it.
The presumption provided for in art. 1269 remains applicable.
(6) The lessor is not obliged to carry out the necessary repairs only to remove the effects of normal wear and tear of the property.
(7) The lessor may charge the lessee with the costs of capital repairs to the extent that the repairs are necessary to repair the damage for which the lessee is liable according to art. 1269.
Article 1275. The tenant’s obligation to inform
(1) The tenant is obliged to inform the lessor about the damage to the leased property or the existence of any danger, about any right or claim of a third party, if these circumstances require the intervention or defense of the lessor.
(2) The tenant is obliged to inform the landlord in accordance with paragraph (1) within a reasonable time after first becoming aware of that circumstance and its nature.
(3) The tenant is presumed to have known the circumstance and its nature if he reasonably should have known it.
Article 1276. Effects of change of owner
the leased property
(1) If the leased property is alienated by the lessor to a third party, the latter shall be subrogated to the lessor by law in the rights and obligations arising from the lease if the lease is enforceable against the third party.
(2) The lease is enforceable against a third party who acquires the ownership right or other real right over the leased property if, at the date of acquisition, the third party knew or should have known of the existence of the lease or if the leased property was in the possession of the lessee.
(3) In the case of goods over which the right of ownership is acquired, according to the law, by registration in a public register provided for by the law, the lease shall also be enforceable against the third party acquirer if, at the date of acquisition, it was noted in that register. In the absence of such notation, the lease shall be enforceable under paragraph (2) only if its term does not exceed 3 years, in the case of immovable property, or 1 year, in the case of other goods over which the right of ownership is acquired, according to the law, by registration in a public register provided for by the law.
(4) The original lessor remains liable for the damage caused to the lessee prior to the alienation.
(5) When the lessee of the alienated property has given guarantees to the lessor for the fulfillment of his obligations, the acquirer is subrogated to the rights arising from these guarantees, under the terms of the law.
(6) The restoration of ownership rights, due to nullity, termination or other grounds in accordance with the law, to the original lessor shall have the effect of reestablishing the lease relationship. This rule shall not affect the services performed before the date of reestablishment.
Article 1277. Effects of expropriation of leased property
(1) The total expropriation of the leased property terminates the lease from the date on which the expropriator has the right to take possession of the property.
(2) If the expropriation of the property is partial, the tenant may, depending on the circumstances, obtain a reduction in the rent or the termination of the lease.
Article 1278. Death of the tenant or lessor
The lease does not terminate upon the death of the tenant, nor upon the death of the landlord, unless the contract provides otherwise or unless, depending on the circumstances, the contract can no longer be maintained.
Article 1279. Termination of the lease
The lease terminates:
a) upon expiry of the lease term;
b) in the event of the destruction of the leased property;
c) in other cases provided for by law or contract.
Article 1280. Extension of the lease agreement
(1) If the contractual relations continue tacitly after the expiry of the lease term, it shall be considered extended for an indefinite period.
(2) Upon expiration of the lease term, the lessee has the priority right to conclude the contract for a new term if:
a) has previously honored its contractual obligations;
b) the property is leased for a new term;
c) agrees to the new contractual conditions established by the lessor.
(3) The guarantee provided by a third party for the performance of obligations by the lessee does not extend to the renewed lease.
Article 1281. Termination of the lease
(1) In the case of an indefinite lease, either party has the right to terminate the lease with a notice period of 3 months for real estate and one month for movable property.
(2) Notification made without respecting the notice period established by law or contract shall not take effect until the expiry of that period.
(3) If the dwelling or any other room intended for living is in a condition that creates a real danger to health, the tenant has the right to terminate the lease without observing the notice period. The tenant has this right even if, at the time of concluding the contract, he knew about the danger and did not submit claims in connection with it.
(4) The termination of the lease also has the effect of terminating the sublease unless otherwise provided in the lease agreement.
Article 1282. Termination of the lease at the initiative of the lessor
(1) The lessor is entitled to request the termination of the lease if the lessee:
a) does not use the leased property for its intended purpose or in accordance with the provisions of the contract;
b) intentionally or negligently admits the deterioration of the condition of the property or creates a real danger of such deterioration;
c) does not pay the rent within 3 months after the expiry of the payment term unless otherwise provided in the contract;
d) concludes a sublease agreement without the lessor’s consent.
(2) The law or the contract may also provide for other reasons for termination of the lease at the lessor’s initiative.
Article 1283. Resolution of the lease on the initiative
lessee
(1) The tenant is entitled to request the termination of the lease if:
a) has lost his/her working capacity and cannot use the leased property;
b) is deprived of liberty and cannot fulfill his contractual obligations.
(2) The law or the contract may provide for reasons other than those in paragraph (1) for termination of the lease at the tenant’s initiative.
Article 1284. Return of leased property
(1) After the termination of the contractual relations, the lessee is obliged to return the leased property in the condition in which it was given to him or in the condition provided for by the contract.
(2) The damage caused by the deterioration of the condition of the property shall be repaired by the lessee unless he proves his lack of guilt. The lessee shall be equally liable for the deterioration caused by members of his family, by the subtenant or by third parties to whom he has allowed access to the leased property.
(3) The lessee is liable for damage to the property to the extent that its value has decreased, unless otherwise provided in the contract.
Article 1285. Fate of improvements to the leased property
(1) Upon expiration of the term or termination of the lease, the lessee has the right to separate the improvements, made with the lessor’s permission, which can be separated without damaging the property or to request compensation for their value from the lessor unless the law or the contract provides otherwise.
(2) The lessee has the right to separate improvements made without the lessor’s permission if they can be separated without damaging the property and if the lessor refuses to compensate for their value. If the improvements made without the lessor’s permission cannot be separated without damaging the property, they become the property of the lessor.
(3) At the request of the lessor, constructions not authorized by him shall be demolished by the lessee or at his expense.
Article 1286. Consequences of failure to make timely restitution
of the leased property
If, after the termination of the contractual relationship, the tenant does not return the leased property, the landlord has the right to demand payment of the rent for the entire duration of the delay. Compensation for the damage not covered by the rent may be demanded.
Article 1287. Limitation of the right to claim missed rent
(1) If the lessor has terminated the lease agreement due to the tenant’s unjustified failure to perform his obligations, the lessor shall not be entitled to claim the rent that he will miss due to the early termination of the lease. This rule shall not prevent the lessor from claiming, in accordance with the provisions on failure to perform his obligations, compensation for the damage caused.
(2) The provisions of paragraph (1) apply in particular when the lessee has renounced, contrary to the terms of the lease, the use of the property, and the lessor has accepted its return.
Chapter IX
LEASE
Section 1
General provisions
Article 1288. Lease contract
(1) Through the lease agreement, one party (lessor) undertakes to give the other party (lessee) agricultural land and/or other agricultural goods in possession and use for a specified period, and the latter undertakes to pay the lease.
(2) For the purposes of this chapter, agricultural property mean fixed property (land for agricultural purposes, including within the built-up areas of localities, and of the reserve fund, machinery, equipment and installations intended for agricultural works, constructions, including hydrotechnical constructions, platforms and storage spaces intended for the storage of agricultural production, with the related land, animals used in the agricultural process) and, where applicable, current property.
(3) The provisions regarding the lease shall apply accordingly to the lease agreement, to the extent that this chapter does not provide otherwise.
Section 2
The emergence of the right to lease, the modification
and its cessation
Article 1289. Conclusion of the lease agreement
(1) The lease agreement shall be concluded in writing.
(2) Unless the parties agree otherwise, the right of possession and use over the leased agricultural property arises from the moment of signing the lease contract and can be exercised only after signing the handover-receipt deed.
(3) The lease agreement must provide data regarding:
a) the subject of the contract;
b) the term of the lease;
c) the composition, form and amount of the rent payment;
d) the conditions of use of objects located on the land, including agricultural machinery and equipment.
(4) At the request of one of the parties, a copy of the cadastral plan of these lands shall be attached to the agricultural land lease contract.
(5) In the event that a part of a divisible land or of a capital construction is leased, a copy of the cadastral plan of the land or construction shall be attached to the handover-reception act, marking the part that is leased.
Article 1290. Description of the leased agricultural property
(1) At the beginning and at the termination of the lease, the contracting parties are obliged to draw up, within 5 working days, documents of handover-receipt of the leased agricultural property.
2) The act of handover-receipt of the leased agricultural land will contain data regarding:
a) the cadastral number of the land;
b) the surface;
c) creditworthiness;
d) how to use it;
e) the condition of the land (cultivated, uncultivated, cultivated, etc.);
f) material and legal defects;
g) other data, at the request of the parties.
(3) The act of handing over-receiving leased agricultural property, other than land, shall contain data regarding:
a) the name and destination of the goods;
b) technical condition;
c) the year of manufacture or commissioning, the general term and the remaining term of exploitation of the goods;
d) carrying out the last current and capital repairs;
e) the real value of agricultural goods assessed according to the legislation;
f) conditions of use;
g) material and legal defects;
h) other data, at the request of the parties.
(4) From the moment of signing, the handover-reception act becomes an integral part of the lease agreement. Failure to include any information provided for in paragraph (2) or (3) does not affect the validity of the handover-reception act.
Article 1291. Lease term
(1) The lease term shall be established by the contracting parties, but shall not be less than 1 year and greater than 30 years.
(2) When leasing agricultural land for the purpose of planting multi-annual plantations, the lease term shall be at least 25 years, unless another term is provided for in the contract.
Article 1292. Extension of the lease agreement
(1) The lease agreement may be extended by mutual agreement of the parties.
(2) Unless the contract provides otherwise, the party that intends not to extend the lease contract is obliged to notify the other party at least 3 months before the expiration of the contract term.
(3) If the lease term expires and the lessor does not request the surrender of the leased property and the lessee continues to exploit them, the lease contract shall be considered extended for one agricultural year.
Article 1293. Lease notation, lease registration
(1) The lease of agricultural land concluded for a term exceeding 5 years must be noted in the real estate register.
(2) If a tenant concludes lease contracts with several lessors, at the initiative of the local public administration authority, the receipt of requests for recording the lease in the real estate register is carried out by the registrar of the territorial cadastral body on the territory of the locality.
(3) The territorial cadastral body shall submit, within one month of the registration, to the first-level local public administration authority in its area of activity the respective information from the real estate register regarding the lease rating or changes to the rating, as well as the deletion of ratings.
(4) The lease of agricultural land concluded for a term of up to 5 years inclusive shall be registered at the town hall of the locality in whose territorial radius the land is located. The registration of the lease according to this paragraph does not produce the legal effects of the notation in the real estate register.
(5) The lessee, within 3 months from the date of conclusion of the lease agreement, shall ensure the notation of the lease in accordance with paragraph (1) or, as the case may be, ensure the registration of the lease in accordance with paragraph (4). Failure to note the lease shall render the contract unenforceable against third parties.
(6) In case of failure to register the lease within the term provided for in paragraph (5), the lessee shall bear the liability provided for by law.
(7) The voluntary registration of a lease concluded for a term of up to 5 years at the territorial cadastral body exempts the lessee from the obligation to register it at the city hall.
Article 1294. Registration of the lease in the register
lease contracts
(1) The lease concluded for a term of up to 5 years inclusive shall be registered in the register of lease contracts kept by the town hall of the locality within whose territorial radius the leased lands and other agricultural property are located. In case the lands and other agricultural property leased are located on the territory of several localities, the lease shall be registered at the town hall of each of these localities.
(2) The City Hall shall keep the register of lease contracts in the manner established by this chapter, other legislative acts and the regulation approved by the Government.
(3) To register the lease at the city hall, the lessee (his representative) presents:
a) 3 copies of the lease agreement, one of which is the original or a copy authenticated under the law;
b) the extract from the advertising register in which the lessee is registered;
c) the document confirming the powers of attorney of the lessee’s representative, as applicable;
d) the payment receipt for the registration.
(4) The register of lease contracts is kept by the cadastral engineer, the secretary of the local council or another person designated in the established manner.
(5) The lease contract register shall record data regarding:
a) the contracting parties, their domicile or registered office;
b) cadastral numbers, surface area, creditworthiness and method of use of the leased land;
c) the term of the lease;
d) the payer of taxes applied to the leased agricultural property;
e) other data, as appropriate.
(6) The registration of the lease is confirmed by applying the stamp of the city hall, by noting the date of registration in the contract and by the signature of the person authorized to carry out the registration.
(7) The lessee shall be given two copies of the registered lease agreement.
(8) The registration of the lease, of the amendments introduced in the contract, of the documents regarding the termination of the lease, as well as the issuance of the respective extracts shall be carried out against payment, the maximum amount of which shall be established by the Government. The said payment shall be paid to the budget of the administrative-territorial unit.
(9) The maintenance of the register of lease contracts shall be coordinated with the maintenance of the land cadastre, the fiscal information system and other systems, in the manner provided for by legislation.
Section 3
Rights and obligations of the parties to the contract
for rent
Article 1295. Rights of the parties
(1) The lessor has the right to verify at any time how the lessee exploits his leased property, without intervening in his current activity, and to obtain the necessary information.
(2) Agricultural property, other than land, transferred to the lessee but not used in the technological production process, may be preserved or sold with the consent of the lessor. The expenses related to the preservation or sale of these property shall be charged to the lease payment unless the contract provides otherwise.
(3) The lessee (or the owner of the land adjacent to the leased land) has the priority right to conclude the lease contract for a new term if:
a) has honored its previously entered into contractual obligations;
b) the leased property are leased for a new term;
c) accepts the new contractual clauses established by the lessor.
(4) The lessee has the right of pre-emption in the event of the sale by the lessor-owner of the leased property.
(5) The provisions of paragraph (4) shall not apply if the lease is unenforceable against a third party purchaser. The right of the lessee to claim compensation for the damage from the lessor who has violated the right of pre-emption shall remain unaffected.
Article 1296. Obligations of the parties
(1) The lessor is obliged:
a) to hand over the leased agricultural goods within the terms and conditions stipulated in the contract;
b) to act in a manner that does not impede the normal use of the leased property;
c) to pay the lessee, in the event of termination of the lease before the end of the agricultural year, the value of the fruits which, although not yet separated, can be separated before the end of the agricultural year under normal farming conditions;
d) to hand over to the lessee the field history book, drawn up at least 3 years before the date of conclusion of the lease agreement;
e) to execute other conditions provided for by law or contract.
(2) Upon conclusion of the lease agreement, the lessor shall be obliged to inform the lessee about the rights of third parties over the leased property. Failure to comply with this provision shall entitle the lessee to a reduction in the amount of the lease payment or to termination of the lease, as well as to compensation, except in the case where the lessee knew or should reasonably have known of the existence of the third party right.
(3) The lessee is obliged:
a) to use the leased property as an owner, according to the terms of the contract;
b) to maintain the productive potential of the leased property, to return them, upon expiry of the term stipulated in the contract, in a condition corresponding to the contract clauses, taking into account the degree of wear and tear;
c) to pay the rent within the established time and manner;
d) to pay taxes and other payments provided for by law, unless the contract provides otherwise;
e) to hand over to the lessor the field history book, drawn up at least 3 years before the date of termination or resolution of the lease;
f) to comply with other conditions provided for by law or contract.
Article 1297. Termination of the lease
(1) The lease terminates upon the expiration of the term for which it was agreed.
(2) Early termination of the lease shall take place in accordance with the law or the contract.
Article 1298. Lease termination
(1) Except in other cases provided for by law or contract, the lessor has the right to declare the termination of the lease if the lessee:
a) did not record the lease in the real estate register or, as the case may be, did not register the contract in the lease contract register within the term provided for in art. 1293 paragraph (5);
b) refuses without justification to lease the agricultural goods stipulated in the contract;
c) has worsened the condition of the goods in such a way that it cannot be restored until the lease term expires.
(2) The lessee has the right to declare the termination of the lease if:
a) the lessor refuses to lease the goods stipulated in the contract, has not delivered them on time or makes it impossible to exploit the leased goods, except in the case where these circumstances are attributable to the lessee;
b) the leased goods have become unusable due to events beyond its control.
Article 1299. Consequences of the termination of the lease
a field
If the termination of the lease of agricultural land takes place before the end of the agricultural year, the lessor is obliged to pay the lessee the value of the fruits which, although not yet separated, can be separated before the end of the year under normal management conditions. When offsetting the value of the fruits, the debts of the parties at the time of termination of the lease are also taken into account.
Section 4
Payment for agricultural land lease.
Amount and method of payment.
Sublease of agricultural land
Article 1300. Payment for the lease of agricultural land
(1) Payment for the lease of agricultural land shall be established in monetary units, shall be made in kind, in money or in kind and in money or in another form, according to the agreement between the contracting parties, and shall be made within the term and in the place provided for in the lease contract.
(2) Payment in kind for the lease of agricultural land shall be established in a determined quantity of agricultural products or in a determined percentage of the volume of production. The products with which the lease is paid shall be established by the parties, depending on the specifics of the agricultural activity and the area.
(3) The terms and place of payment in kind for the lease of agricultural land, as well as the quality of the products, are established by the parties to the contract, depending on the type of products and the specifics of their obtaining.
(4) The agricultural production released by the lessee as payment for the lease of agricultural land is estimated at prices that do not exceed those in force on the local market for this production at the time of its release, unless the contract provides otherwise.
Article 1301. Contractual allocation of risks
(1) In the lease agreement, the contracting parties may establish, by mutual agreement, the cases and limits of bearing damages caused by natural disasters.
(2) By mutual agreement, the parties may provide for the distribution of losses, total or partial, of the leased property, as a result of events beyond the control of the lessee that make it impossible or difficult for one of the parties to fulfill its obligations.
Article 1302. Reduction of rent
If more than half of the fruits obtained through the lease are lost due to an event beyond the control of the lessee, the lessee is entitled to a proportional reduction in the rent for that period. The right to a reduction only exists until the fruits are separated.
Article 1303. The lessor’s right of pledge
(1) The lessor, in order to guarantee his claims arising from the lease agreement, has the right of pledge over the goods brought by the lessee and over the fruits of the leased property.
(2) The lessor’s pledge is not enforceable against the pledgee who registered his pledge before the maturity of the claim invoked for the exercise of the pledge.
Article 1304. Sublease of agricultural land
(1) In order to sublease agricultural land, the lessee is obliged to obtain the consent of the lessor and to conclude a separate contract. In case of failure to comply with this obligation, the lessor has the right to terminate the lease and return possession of the agricultural land from the lessee or, as the case may be, the sublessee.
(2) The lessor shall indicate in his approval the agricultural land that may be subleased, as well as the term and purpose of the sublease.
(3) The agricultural land sublease contract shall contain information about the lease contract and the lessor’s approval on the basis of which the sublease contract was concluded.
(4) The sublease of leased agricultural land does not absolve the lessee from liability towards the lessor.
(5) The term of the sublease of agricultural land cannot exceed the term of the lease contract.
(6) Sublease by the sublessee is not allowed.
Section 5
How to use leased agricultural property
Article 1305. Lease of agricultural property
(1) The lessor is obliged to transfer to the lessee the possession and use of the goods in a condition that meets the requirements provided for in the contract.
(2) If the material defects and legal defects of the leased agricultural property were stipulated in the contract or the lessee knew about them or should have reasonably known about them in another way, the lessor is absolved of liability.
(3) If the lessor, within the established term, does not sign the handover-receipt act of the leased goods, the lessee is entitled to request these goods, as well as compensation for damages caused by the delay, or to request the termination of the lease and compensation for damages caused by the failure to fulfill the lease agreement.
Article 1306. Purchase of agricultural property by
tenant
If, during the lease term, the lessee and the lessor conclude a sale-purchase contract regarding the leased agricultural property, the clause providing that the lease payment paid prior to the sale is deducted from the price is void.
Article 1307. Restitution of leased agricultural property
(1) The return of leased agricultural property shall be carried out on the basis of the handover-receipt deed, drawn up in accordance with art. 1290.
(2) Upon expiration of the lease term, the lessee is obliged to return the leased agricultural property to the lessor in the condition in which he took them over, taking into account the wear and tear of the property (soil quality), specified in the contract.
(3) The lessee is entitled to separate the improvements to the leased agricultural property made with the permission of the lessor, which can be separated without damaging the property, or to request compensation for their value from the lessor unless the contract provides otherwise.
Section 6
Leasing of owned agricultural land
of the state or administrative-territorial unit
Article 1308. Leasing of agricultural land
property of the state or unit
administrative-territorial
(1) Agricultural land owned by the state or the administrative-territorial unit is leased by the Government or the entity under whose management it is located or, as the case may be, by the local public administration authorities, within the limits of competence and under the conditions of the legislation.
(2) The leasing of agricultural land owned by the state or the administrative-territorial unit shall be done through public auction unless the law provides otherwise.
(3) The annual payment for the lease of agricultural land owned by the state or an administrative-territorial unit shall be at least 2% of the normative price of the leased land. In case of failure to comply with these minimum requirements, the lease payment shall be deemed to be equal to the minimum requirement established by law.
Section 7
The particularities of the lease of agricultural goods,
other than land
Article 1309. Method of calculating payment for
lease of agricultural property, others
than the lands
(1) The method of calculating the amount of payment for the lease of agricultural property, other than land, shall be established by the Government, depending on the degree of wear and tear of the property.
(2) When leasing agricultural property, other than land, the lessee is obliged to calculate their depreciation and reflect it in his off-balance sheet account.
(3) For the purposes of this section, wear and tear of agricultural property means the reduction in the value of agricultural property, other than land, through their prolonged use.
Article 1310. Method of payment of rent
(1) The method of payment for the lease of agricultural property, other than land, shall be established by agreement of the contracting parties. The payment shall be paid annually or shall be accumulated in the balance sheet account of the lessee.
(2) If the lease payment is accumulated in the lessee’s balance sheet, the lessee, with the lessor’s consent, carries out major repairs, reconstruction or renovation of the leased agricultural property, other than land, and procures new property.
Article 1311. Use of leased agricultural property,
other than land
(1) The lessee uses the leased agricultural property, other than land, according to the conditions stipulated in the contract.
(2) The lessor shall lease agricultural property, other than land, in the appropriate condition stipulated in the contract.
(3) If during the lease the agricultural property, other than the land, require routine repairs, this shall be carried out at the expense of the lessee.
(4) The lessee shall record the leased agricultural property, other than land, in the respective off-balance sheet accounts and insure them against civil liability in the established manner.
(5) During the lease period of means of transport and agricultural equipment, the lessee is considered their legal owner and bears civil liability for their damage.
(6) Without the consent of the lessor, it is prohibited to dispose of, pledge, sell, or otherwise dispose of leased agricultural property, other than land.
Article 1312. Capital repairs
(1) The lessor is obliged to carry out major repairs to the leased agricultural property, other than land, unless the contract provides otherwise.
(2) Failure by the lessor to comply with the obligation provided for in paragraph (1) grants the lessee the right to carry out the capital repair at his own expense and to transfer the expenses incurred to the payment account for the lease of the agricultural property.
Article 1313. Expiration of the lease term of goods
agricultural, other than land.
Restitution of goods
(1) Upon expiration of the lease term of agricultural property, other than land, the lessee is obliged to return them to the lessor in the condition in which he took them over, taking into account the degree of wear and tear.
(2) If, according to the contract, the payment for the lease of agricultural property, other than land, is accumulated in the lessee’s balance sheet account, the lessee, upon the expiration of the lease term, by agreement of the parties, shall return to the lessor, by means of money or by other property from his property, the unpaid lease payment, as well as the amounts intended for the capital repair of agricultural property, other than land, but not used for this purpose.
(3) In the case of leasing working capital, upon expiration of the lease term, the lessee is obliged to return them to the lessor in kind, taking into account wear and tear, or to return the cash equivalent of these property.
Chapter X
LEASE
Article 1314. Leasing contract
(1) Through the leasing contract, one party (lessor) undertakes to ensure to the other party (lessee), during an agreed term exceeding 1 year (the leasing term), the possession and use of an property purchased by the lessor, as well as to grant the lessee the option to acquire ownership of the property, to extend the leasing term or to return the property upon expiry of the leasing term, and the lessee undertakes to make the agreed periodic payments (leasing installments).
(2) The leasing rate represents the periodic payment composed of a share of the input value of the property and the leasing interest.
(3) The input value of the property is composed of the cost at which the property was purchased by the lessor, including the taxes and duties provided for by law (except for those which, according to the law, are to be refunded to the lessor), as well as, where applicable, any other expenses covered by the lessor related to the purchase, delivery and commissioning of the property provided for by the leasing contract.
(4) The residual value represents the amount, additional to the leasing installments, which, if expressly stipulated in the leasing contract, must be paid by the lessee for the benefit of the lessor in the event of exercising the option to acquire the property.
(5) The total value represents the sum of all payments scheduled to be made by the lessee to the lessor under the leasing contract, including all leasing installments, advances, commissions provided for by the leasing contract for the lessee, to which is added, if expressly stipulated, the residual value.
Article 1315. Scope of application
(1) The contract that complies with the provisions of art. 1314 paragraph (1) is considered a leasing contract even if the parties have excluded or limited the option to extend the leasing term.
(2) The legal provisions regarding the rental contract shall apply accordingly to the leasing contract.
(3) The provisions of art. 1244 shall apply accordingly to leasing interest.
(4) The provisions of this chapter shall also apply accordingly if the lessor acquires the property through a construction contract or other contract for consideration.
(5) The seller may meet the status of lessee if he leases the property sold by him (lease-back).
Article 1316. The landlord’s right to information.
Change in financial situation
of the tenant
(1) The lessor has the right to request from the lessee documents reflecting his financial status and/or the condition of the property requested by the lessee and to verify the financial status of the lessee and/or the condition of the property requested by the lessee.
(2) The lessor has the right to declare the termination and to be released from the obligation to transfer the property to the possession and use of the lessee if the lessee’s material situation worsens substantially, which would jeopardize the performance by the lessee of his contractual obligations, even if the deterioration occurred before the conclusion of the contract and became known to the lessor later.
Article 1317. Conclusion, form and content of the contract
leasing
(1) The leasing contract shall be concluded in writing. If the law requires a certain form for the sale of the property under penalty of nullity, then the same formal requirement shall apply to the leasing contract that has as its object such property.
(2) The leasing contract must state:
a) the input value of the good;
b) total value;
c) leasing interest;
d) the leasing term;
e) the size of the leasing installments and their maturity.
Article 1318. Leased property
(1) Consumable goods may be leased only as part of a universality that predominantly contains non-consumable goods.
(2) The movable property that is the subject of the leasing contract retains its movable nature during the period of leasing, even if it is attached to or incorporated into a real estate, to the extent that it does not lose its individuality.
Article 1319. Tenant’s right of choice
(1) The right to choose the property and/or the seller belongs to the lessee. In this case, the lessor must reasonably coordinate with the lessee the content of the sale-purchase contract.
(2) If the lessee has provided the specifications of the good or its production to the lessor or seller, the lessee is obliged to compensate the lessor or, as the case may be, the seller in the event that the lessor’s or, as the case may be, seller’s compliance with those specifications has generated claims from third parties whose rights over the intellectual property object or other rights have been thus violated.
Article 1320. The rights of the lessee against the seller
(1) The lessor must ensure that the lessee can effectively exercise the rights of the buyer of the property against the seller to the extent necessary for the lessee to independently:
a) take possession of the property at the beginning of the leasing term; and
b) to enjoy the possession and continued peaceful and useful use of the property, including to benefit from the remedy of defects in the property sold or the replacement of the defective property under the terms of the sale-purchase contract.
(2) The lessee shall benefit from the rights of the buyer of the property if he is a contracting party or is named as a third party beneficiary of these rights in the sale-purchase contract. The seller shall not be liable to the lessor and the lessee for the same damage.
(3) If the lessee is not named as a third party beneficiary of the buyer’s rights, the lessor shall personally bear the obligations provided for in paragraph (1) towards the lessee until the date on which the lessor assigns or otherwise grants these rights to the lessee against the seller.
(4) From the moment the seller has learned that the lessee benefits from the rights of the buyer under the terms of this article, the modification or termination of the sale-purchase does not produce legal effects without the consent of the lessor and the lessee. From the same moment, the replacement of the defective good with another by the seller cannot take place without the consent of the lessor and the lessee.
(5) Any clause in the leasing contract that derogates from the provisions of this article to the detriment of the consumer lessee is absolutely null and void.
Article 1321. Ownership of property
and the enforceability of the lease
(1) The lessor acquires from the seller the right of ownership over the property under the terms of the sale-purchase contract concluded between them.
(2) The lessor has the right to alienate the property for the benefit of third parties without the consent of the lessee.
(3) The lease becomes enforceable against third parties:
a) by noting in the real estate register, in the case of real estate;
b) by noting in the publicity register provided for by law, in the case of movable property over which the ownership right is acquired, according to the law, by registration in the respective register;
c) by registration in the register of movable collateral, in the case of movable property other than those provided for in letter b).
(4) Even if the corresponding formality provided for in paragraph (3) has not been fulfilled, the leasing is enforceable against the third party who became aware of it in another way.
(5) If the leasing is enforceable against the third party acquiring the property, the provisions of art. 1276 shall apply.
Article 1322. Limits of the lessor’s liability
in the leasing contract
(1) The lessor is not liable for the seller’s failure to fulfill its obligations towards the lessee, except in the case where:
a) the seller was chosen by the lessor;
b) the failure to perform the obligation by the seller is justified by the failure by the lessor to perform its obligations, including payment, resulting from the sale-purchase contract.
(2) Except in the case where the lessor is liable under the provisions of paragraph (1), the lessee may not invoke the seller’s failure to perform its obligations towards the lessee in order to suspend the performance of its obligations towards the lessor, reduce them or resort to the termination of the lease.
(3) Except in the case where the lessor is liable under the provisions of paragraph (1), the consumer lessee may, if the good has not been supplied to him or has been supplied only in part or the good does not comply with the provisions of the sales contract, invoke the seller’s failure to perform his obligations towards the lessee, in order to suspend the performance of his obligations towards the lessor, reduce them or resort to the termination of the lease, only if he has not succeeded in obtaining satisfaction from the seller of the claims to which he is entitled under the sales contract. Any clause in the lease contract that derogates from the provisions of this paragraph to the detriment of the consumer lessee shall be struck by absolute nullity.
(4) Until the lessee exercises the option to acquire ownership of the property, the lessor shall be liable for the lessee’s guarantee against legal defects of the property in accordance with the legal provisions regarding the lease, except for the cases provided for in paragraph (1).
(5) The lessor shall not bear any liability towards the lessee or third parties for the damage caused by the property or resulting from the use of the property until the lessor takes direct possession of the property.
Article 1323. Bearing the risk and costs
(1) The risk of destruction (including loss or theft) or damage to the property, whether caused by the act of a third party or in other circumstances, passes to the lessee at the moment when he takes or should have taken possession of the property.
(2) After the risk has passed to the lessee, the lessee may not invoke the deprivation of use of the property or its disturbance, including due to its loss, theft, destruction or damage, in order to suspend the performance of his obligations towards the lessor, reduce them or resort to the termination of the lease. The provisions of art. 1322 paragraph (3) remain applicable.
(3) The termination of the lessor’s obligation to ensure possession and use of the property as a result of the impossibility of performance does not entail the termination of the lessee’s correlative obligation to pay the leasing installments, except in the case where the impossibility is caused by a legal defect of the property that was chosen by the lessor.
(4) The tenant is obliged to bear the costs of maintenance and capital and current repairs of the property.
Article 1324. Insurance of property
(1) The leasing contract may provide for the obligation to contract insurance of the property against the stipulated insured risks. If the party obliged to contract insurance of the property has not performed this obligation, the other party may perform the obligation and request from the obliged party the reimbursement of the insurance premium and other expenses related to the insurance.
(2) Regardless of whether the insurance of the property against risks is contracted by the lessor or the lessee, the contractor must indicate the lessor or the lessor’s creditor as the primary insured of the insurance indemnity and the lessee as the subsidiary insured.
(3) The insurance contractor shall provide the other party to the leasing contract with a copy of the insurance contract. Each party shall be bound to comply with the terms of the insurance contract to the extent that compliance with these terms is within its reasonable control.
(4) The lessor shall have the right to collect the insurance compensation within the limit of the total unpaid value and shall be obliged to direct the receipts to the account of the settlement of the total unpaid value. In this case, the total value shall be reduced by the leasing interest related to the amount collected, for the period between the date of collection and the date when the leasing term was to expire. The leasing contract may provide that, in addition to the total value, the lessor shall be entitled to an early payment fee.
(5) The remaining part of the insurance compensation after applying the provisions of paragraph (4) shall be paid to the lessee.
(6) By way of derogation from the provisions of paragraphs (4) and (5), if the insured event constitutes damage to the property, the lessee may request from the lessor the transmission of the insurance compensation actually received from the insurer to the extent that the lessee has previously repaired the property at his own expense.
(7) Any clause in the leasing contract that derogates from the provisions of paragraphs (2)-(5) to the detriment of the consumer lessee is subject to absolute nullity.
(8) The provisions of this article do not affect the priority rights of the creditor who holds a pledge or mortgage over the property or of other creditors who are recognized by law as having a priority right over the insurance compensation.
Article 1325. Dispositional acts concerning rights
results from the leasing contract
(1) The lessor may assign or otherwise dispose of his rights over the property or the rights arising from the leasing contract. The assignment or other disposition does not release the lessor from the obligations arising from the contract nor does it change the nature or legal regime of the contract.
(2) The lessee may transfer the property for use to third parties or may assign or encumber other rights resulting from the leasing contract only with the consent of the lessor and in compliance with the rights of third parties.
Article 1326. Exercise of the option to acquire property
(1) The lessee may exercise the option to acquire ownership of the property by notifying the lessor, at any time within the leasing term.
(2) The lessee may also exercise the option to acquire the property by notifying the lessor within a period of 30 days or such longer period as may be provided for in the leasing contract, under penalty of forfeiture. The respective period shall begin to run from the date of expiry of the leasing term or, as the case may be, from the date of termination of the leasing by the lessor.
(3) In the event of exercising the option to acquire the property, the lessee is required to pay the unpaid portion of the total value.
(4) If the option is exercised before the expiry of the leasing term, the leasing interest for the period between the date of effective payment of the amounts provided for in paragraph (3) and the date when the leasing term was to expire shall be deducted from the total value. The leasing contract may also provide for the payment by the lessee of an early payment fee.
5) The notification of the exercise of the option to acquire the property takes effect, and the lessor is obliged to consent to the transfer of the property in favor of the lessee, only if the lessee has fully paid the amounts due in connection with the exercise of the option to the lessor within 7 days from the date of the exercise of the option to acquire the property, under penalty of forfeiture.
(6) The lessor guarantees the lessee against legal defects of the property in accordance with the legal provisions on sale and purchase. The term of liability for legal defects runs from the date of transfer of ownership to the lessee. The lessor does not guarantee the lessee against material defects of the property.
(7) If the lessor has pledged or mortgaged or established other third-party rights over the property, the lessor is obliged to ensure that the lessee acquires ownership of the property free from third-party rights, even if the lessee has previously consented to the establishment of third-party rights.
(8) The provisional registration of the buyer’s ownership right shall be justified, and the buyer shall become the unconditional owner, by the handover-receipt deed concluded after the commissioning and, in the case of reservation of ownership, by the written confirmation issued by the seller of the full payment of the price. In this case, the seller’s ownership right shall be removed from the real estate register.
(9) In the case of immovable property or movable property over which the right of ownership is acquired, according to the law, by registration in a public register, the lessee acquires the right of ownership on the date of registration in the appropriate register, on the basis of the leasing contract and the document issued by the lessor confirming the full performance of the obligations by the lessee. In the case where the right of ownership of the lessee has been provisionally registered in accordance with art. 432 para. (2) lett. b), the provisional registration is justified by the document issued by the lessor confirming the full performance of the obligations by the lessee.
(10) Any clause in the leasing contract that derogates from the provisions of this article to the detriment of the consumer lessee is absolutely null and void.
Article 1327. Obligations in case of restitution of property
(1) The lessee’s obligation to return the property to the lessor upon expiration of the leasing term or upon termination of the leasing must be performed even if the term for exercising the lessee’s option has not yet expired.
(2) In the case provided for in paragraph (1), the lessor is obliged to receive the property.
Article 1328. Acceleration of the maturity of leasing installments
remaining lease termination
(1) The lessor has the right, at its option, to demand immediate performance by the lessee of the unpaid part of the total value or to resort to the termination of the lease if:
a) insolvency proceedings have been filed against the tenant, with the exceptions provided for by Insolvency Law No. 149/2012;
b) the lessee did not provide the personal or real guarantees provided for in the leasing contract or reduced the guarantees provided without the consent of the creditor;
c) a leasing installment is not paid, at least partially, more than 45 days after the due date;
d) during any period of 12 consecutive months, three or more leasing installments have not been paid in full when due;
e) one of the circumstances provided for in art. 1282 paragraph (1), except letter c, occurs;
f) other circumstances provided for by law or contract arise.
(2) If the lessor has requested payment of the unpaid part of the total amount before the expiry of the leasing term, the leasing interest for the period between the date of effective payment of the unpaid part of the total amount and the date when the leasing term should have expired shall be deducted from its amount. The lessor’s right to compensation for the damage caused shall remain unaffected.
(3) In the event of termination of the lease by the lessor due to the lessee’s failure to fulfill his obligations, the lessor shall not return the lease installments and other amounts received under the lease agreement. In this case, the lessor shall be entitled to compensation equal to the unpaid part of the total amount, from which the leasing interest shall be deducted for the period between the date of effective payment of the compensation and the date when the leasing term was to expire. The lessor’s right to the early payment fee provided for in the contract or to compensation for other damage shall remain unaffected.
(4) After regaining possession of the property, the lessor is obliged to sell the property within a reasonable period of time and at a reasonable commercial price. The legal provisions regarding the reasonable commercial price in the event of the sale of the pledged property shall apply accordingly. The price thus obtained shall be used to settle the lessee’s debt to the lessor, after which the difference shall be paid to the lessee. If the price obtained from the sale of the property is not sufficient to settle the lessee’s obligation to the lessor, the lessee shall pay the difference in price, which shall be paid to the lessor within the period established by the lessor. The price shall be considered reasonable commercially even if it was possible to sell at a higher price, unless the price difference is substantial.
(5) In the event of termination of the lease by the lessee due to the lessor’s failure to fulfill its obligations, the common legal provisions regarding termination shall apply.
(6) Instead of selling the property according to paragraphs (2)-(4), the lessor may notify the lessee that he intends to keep the property in his ownership, paying him compensation equal to the market price of the property from which the lessee’s debt to the lessor is deducted.
(7) Any clause in the leasing contract that derogates from the provisions of this article to the detriment of the consumer lessee is absolutely null and void.
Chapter XI
COMPANY AND SERVICES
Section 1
General provisions regarding
in business and service provision
Article 1329. Freedom to choose the method of performance
of works or provision of services
The contractor or service provider is free to choose the way in which the works are carried out or the services are provided. There is no relationship of subordination between the contractor or service provider and the beneficiary.
Article 1330. Remuneration
(1) Remuneration is considered tacitly agreed if, in relation to the circumstances, such work or services are performed only in exchange for remuneration.
(2) If the amount of remuneration is not established, it is considered that an agreement has been reached, in the case of the existence of tariffs, on the tariff remuneration, and in the case of the absence of tariffs, on the usual remuneration.
Article 1331. Estimated quote
(1) If, upon conclusion of the contract, the price of the works or services was the subject of an evaluation, the contractor or service provider must justify the increase in remuneration.
(2) The beneficiary is not obliged to pay the increase from paragraph (1) except to the extent that it results from works, services or expenses that the contractor or service provider could not foresee at the time of concluding the contract.
Article 1332. Reporting by the entrepreneur
or the provider
If the remuneration is established depending on the value of the works, services or goods provided, the contractor or service provider is obliged, at the request of the beneficiary, to provide him with a report on the progress of the works, the services and the expenses incurred.
Article 1333. Lump sum price
(1) If the work or service was contracted at a flat rate, the beneficiary is obliged to pay the agreed remuneration and cannot claim a reduction in remuneration on the grounds that the work or service required less work or fewer expenses than expected.
(2) Similar to paragraph (1), the entrepreneur or service provider may not request an increase in remuneration for contrary reasons.
(3) The lump sum price remains the same even if changes have been made to the initial terms or conditions of performance, unless the parties have agreed otherwise.
Article 1334. Personal benefit
(1) The contractor or service provider is obliged to perform the service personally only when this obligation arises from the contract, the circumstances or the nature of the service.
(2) The contractor or service provider retains supervision and liability in any case.
(3) To the extent that the beneficiary chooses the subcontractor or subsupplier or the tools and materials are provided by the beneficiary, the liability of the contractor or the supplier is governed by the provisions of Articles 1340 and 1341.
Article 1335. Pre-contractual information obligations
(1) The contractor or service provider has a pre-contractual obligation to inform the beneficiary if he becomes aware of a risk that the work or service requested:
a) cannot achieve the result foreseen or envisaged by the beneficiary;
b) may prejudice other interests of the beneficiary; or
c) it could become more costly or take longer than the beneficiary reasonably expected.
(2) The obligation to inform provided for in paragraph (1) does not arise if the beneficiary knows or should reasonably have known of the risk referred to in paragraph (1).
(3) If a risk referred to in paragraph (1) occurs and the entrepreneur or service provider has breached his obligation to inform about that risk, the entrepreneur or service provider is deprived of the right of unilateral modification under art. 1344 based on the materialization of that risk, unless the entrepreneur or service provider proves that the beneficiary, had he been properly informed, would have concluded the contract anyway. This provision does not affect any other legal means of defense of the creditor, including means based on error, which the beneficiary may have.
(4) The beneficiary has a pre-contractual obligation to inform the contractor or service provider if he becomes aware of unusual facts that could make the work or service more expensive or take longer than the contractor or service provider expected or that could cause any damage to the contractor or service provider or third parties during the performance of the work or provision of the service.
(5) If the facts referred to in paragraph (4) are fulfilled and the contractor or service provider was not properly informed, the contractor or service provider has the right:
a) to claim compensation for the damage suffered due to the lack of information; and b) to obtain an additional deadline for the performance of the work or the provision of the service.
(6) For the purposes of paragraph (1), it is presumed that the contractor or service provider is aware of the risks mentioned if they are evident from all the facts and circumstances known to the contractor or service provider, taking into account the information that the contractor or service provider must gather about the result agreed or envisaged by the beneficiary and the circumstances in which the work is to be performed or the service is to be provided.
(7) For the purposes of paragraph (2), it shall be deemed that the beneficiary should not reasonably have known of a risk merely because he was competent in the relevant field or was consulted by third parties competent in the relevant field, except where the third parties acted on behalf of the beneficiary, in which case the provisions of art. 1011 shall apply.
(8) For the purposes of paragraph (4), it is presumed that the beneficiary knows the mentioned facts if they are evident from all the facts and circumstances known to the beneficiary without investigation.
Article 1336. Beneficiary’s obligation to inform
The contractor or service provider is required, before the conclusion of the contract, to provide the beneficiary, to the extent that circumstances permit, with all information relating to the nature of the work or service, the goods and the term necessary for the work or service.
Article 1337. Obligation to cooperate
(1) The Parties are obliged to cooperate with each other, in particular:
a) the beneficiary must respond to reasonable requests from the contractor or service provider to provide information to the extent necessary to enable the contractor or service provider to perform its obligations under the contract;
b) the beneficiary must give instructions regarding the performance of the work or the provision of the service to the extent that they are necessary to enable the contractor or service provider to perform its obligations arising from the contract;
c) to the extent that the beneficiary must obtain permits or authorizations, he is obliged to obtain them within the necessary time limits to allow the contractor or service provider to perform its obligations arising from the contract;
d) the contractor or service provider must give the beneficiary the reasonable opportunity to check whether the contractor or service provider is fulfilling its obligations under the contract; and
e) the parties must coordinate their efforts to the extent necessary for the performance of their obligations under the contract.
(2) If the beneficiary does not perform the obligations provided for in paragraph (1) letter a) or b), the contractor or service provider has the right to suspend the performance or to base, in the performance process, on the expectations, preferences and priorities that the beneficiary could reasonably have had, taking into account the information and instructions received, provided that the beneficiary is informed in accordance with art. 1341.
(3) If the beneficiary does not fulfill the obligations provided for in paragraph (1) and this fact has caused the work or service to become more expensive or take longer than agreed in the contract, the contractor or service provider has the right:
a) to claim compensation for the damage suffered due to the non-performance; and
b) to obtain additional time for the performance of the work or the provision of the service.
Article 1338. Obligation of competence and prudence
(1) The contractor or service provider must perform the work or provide the service:
a) with the skill and care that a reasonable provider would have exercised in the circumstances of the case; and
b) in accordance with the law or other mandatory rules applicable to the work or service in question.
(2) If they profess a higher level of competence and prudence, the entrepreneur or service provider must apply that higher level.
(3) If the contractor or service provider is a member of a group of business service providers for whom an authority has set certain standards or the group itself has set certain standards, the contractor or service provider must exercise the competence and care required by those standards.
(4) In determining the level of competence and prudence that can be expected of the beneficiary, the following shall be taken into account, in particular:
a) the nature, extent, frequency and predictability of the risks in the performance of the work or the provision of the service for the benefit of the beneficiary;
b) if damage has been caused, the expenses related to precautionary measures that would have prevented that damage or similar damage;
c) whether the entrepreneur or service provider is a business;
d) the amount of remuneration; and
e) the deadline allocated for the performance of the work or the provision of the service.
(5) The obligations provided for in this Article in particular require the contractor or service provider to take reasonable precautions to prevent damage from being sustained as a result of the performance of the work or the provision of the service.
Article 1339. Obligation to achieve the result
(1) The contractor or service provider must achieve the concrete result agreed or envisaged by the beneficiary at the time of conclusion of the contract, and in the case of a result that was not agreed, but only envisaged by the beneficiary:
a) the intended result was one that the beneficiary could reasonably have foreseen; and
b) the beneficiary had no reason to believe that there was a substantial risk that the result would not be achieved through the work or service.
(2) To the extent that the beneficiary is transferred ownership of the result, he must be free from any right or reasonable claim of a third party. The provisions of art. 1122 shall apply accordingly.
Article 1340. Beneficiary instructions
(1) The contractor or service provider must follow all instructions given at the appropriate time by the beneficiary regarding the performance of the work or the provision of the service, provided that the instructions:
a) are provided for in the contract or are specified in a document to which the contract refers;
b) results from the choice that the beneficiary is to make according to the terms of the contract; or
c) results from the choice that the parties left for a moment after the conclusion of the contract.
(2) If the failure to perform one or more of the obligations of the contractor or service provider provided for in art. 1338 or 1339 is the consequence of compliance with the instruction that the contractor or service provider is required to comply with according to the provisions of par. (1), he shall not bear the liability provided for in the said articles if he has informed the beneficiary according to art. 1341.
(3) If the contractor or service provider considers that an instruction referred to in paragraph (1) constitutes a modification of the contract within the meaning of Article 1344, he shall inform the beneficiary accordingly. Unless the beneficiary revokes the instruction without undue delay, the contractor or service provider shall comply with the instruction and the instruction shall have the effect of a modification of the contract.
Article 1341. Contractual obligation to inform
of the contractor or service provider
(1) The contractor or service provider is obliged to inform the beneficiary if he becomes aware of a risk that the work or service requested:
a) cannot achieve the result foreseen or envisaged by the beneficiary at the time of conclusion of the contract;
b) may prejudice other interests of the beneficiary; or
c) could become more costly or take longer than provided for in the contract either as a result of compliance with information or instructions given by the beneficiary or gathered in preparation for performance, or as a result of the materialization of any other risk.
(2) The contractor or service provider must take reasonable steps to ensure that the beneficiary understands the information thus provided.
(3) The obligation to inform provided for in paragraph (1) does not arise if the beneficiary knows or should reasonably have known of the risk referred to in paragraph (1).
(4) If a risk referred to in paragraph (1) occurs and the entrepreneur or service provider has breached his obligation to inform about that risk, the entrepreneur or service provider is deprived of the right to unilaterally modify the contract under art. 1344 based on the materialization of that risk.
(5) For the purposes of paragraph (1), it is presumed that the entrepreneur or service provider is aware of the risks mentioned if they are evident from all the facts and circumstances known to the entrepreneur or service provider without investigation.
(6) For the purposes of paragraph (3), the beneficiary shall be deemed to have reasonably been aware of a risk if he was competent in the relevant field or was consulted by third parties competent in the relevant field. Where third parties acted on behalf of the beneficiary, the provisions of Article 1008 shall apply.
Article 1342. Supply of goods by the entrepreneur
or provider
(1) The contractor or service provider is obliged to provide all the goods necessary for the performance of the contract unless otherwise stipulated.
(2) The goods must be of good quality for the performance of the works and the provision of the services. The contractor or service provider owes the same guarantees for the goods as the seller owes.
(3) It is a sale-purchase contract, not a contract for the provision of services, if the works or services are only an accessory in relation to the goods supplied.
(4) The contractor or service provider must ensure that the means and materials used to perform the work or provide the service comply with the contract and the legislation and are suitable for achieving the purpose pursued by the contract.
Article 1343. Use of the beneficiary’s property
(1) If the goods are provided by the beneficiary, the entrepreneur or service provider is obliged to use them with care and to keep records of their use.
(2) If the goods are obviously unsuitable for their intended use or are affected by an obvious defect or a hidden defect that becomes known, the entrepreneur or service provider is required to immediately inform the beneficiary, failing which he shall be liable for the damage that may arise from the use of the goods.
(3) The contractor or service provider is obliged to present to the beneficiary a report on the use of the goods provided by him and to return the remaining part.
Article 1344. Unilateral modification of the contract
(1) Without prejudice to the beneficiary’s right to terminate pursuant to art. 1348, each party may, by notification to the other party, modify the work to be performed or the service to be provided, if the modification is reasonable having regard to:
a) the result to be achieved;
b) the interests of the beneficiary;
c) the interests of the entrepreneur or provider; and
d) the circumstances existing at the time of the change.
(2) A modification shall be considered reasonable only if it is:
a) necessary to allow the entrepreneur or service provider to act in the manner provided for in art. 1338 or, as the case may be, art. 1339;
b) the consequence of an instruction given pursuant to art. 1340 paragraph (1) and is not revoked without undue delay after receipt of the information pursuant to art. 1340 paragraph (3);
c) a reasonable response to information received after the conclusion of the contract from the contractor or service provider according to art. 1341; or
d) required by the change in circumstances that justify the modification of the obligations of the contractor or service provider according to art. 1083.
(3) The additional remuneration due as a result of the modification must be reasonable and shall be determined using the same calculation methods that were used to establish the initial remuneration.
(4) If the modification consists of reducing the work or service, the saved expenses and any possibility for the contractor or service provider to use the released capacity for other purposes shall be taken into account when calculating the remuneration due following the modification.
(5) Modification of the work or service could, depending on the circumstances, lead to an adjustment of the performance deadline in proportion to the additional effort required in relation to the initial effort.
Article 1345. Risk of accidental loss or damage
of goods
The risk of accidental loss or damage to the goods necessary for the performance of the contract is borne by the person who supplied them, unless otherwise provided in the contract.
Article 1346. Rights of the entrepreneur or his
to the provider in case of non-acceptance
the work or service provided
(1) The contractor or service provider may claim appropriate compensation without being obliged to perform any subsequent work or service if the beneficiary does not accept the work or service offered. The beneficiary is also obliged to pay compensation when he does not perform the actions necessary for the work or service.
(2) The amount of compensation shall be determined according to the duration of the delay and the amount of remuneration, with the deduction of what the entrepreneur or service provider saves as a result of the delay or refusal or what he could have gained by using his labor force in another way.
Article 1347. The beneficiary’s obligation to notify
early non-performance
(1) The beneficiary is obliged to notify the contractor or service provider if he becomes aware, during the performance of the work or the provision of the service, that the contractor or service provider will not be able to perform his obligation provided for in art. 1339.
(2) For the purposes of paragraph (1), the beneficiary is presumed to know if, taking into account all the facts and circumstances known to him without investigation, there is reason for the beneficiary to know.
(3) If the failure to fulfill the obligation set out in paragraph (1) causes the work or service to become more expensive or take longer than agreed in the contract, the contractor or service provider has the right to claim compensation for the damage suffered due to the failure to fulfill and to obtain additional time for the performance of the work or the provision of the service.
Article 1348. Resolution by the beneficiary
(1) The beneficiary may declare the termination at any time, with or without good reason, until the work or service is fully completed, being obliged to pay the contractor or service provider the remuneration for the work performed or the services provided and to repair the damage caused by the termination.
(2) If the termination was declared for good reason, the beneficiary does not owe compensation for it.
(3) For the purposes of paragraph (2), the beneficiary is considered to have declared the termination for good cause if he:
a) had the right to terminate according to the terms of the contract and complied with the conditions stipulated in the contract for termination;
b) have the right to termination in accordance with the legal provisions regarding non-performance of obligations; or
c) had the right to termination pursuant to art. 1085 and sent a reasonable notice in the manner established in art. 1085.
Article 1349. Resolution by the entrepreneur
or provider
(1) If there is no valid reason for termination, the contractor or service provider may declare termination only in such a way that the beneficiary obtains the work or service in another way. If there is a valid reason, the obligation to pay compensation is excluded.
(2) In the event of termination, the contractor or service provider is required to return the advance received.
(3) If the contractor or service provider declares the termination, he may request a proportional share of the remuneration for the works or services performed, to the extent that the beneficiary has an interest in these works or services.
Article 1350. Death of the beneficiary
The death of the beneficiary does not result in the termination of the contract unless its performance becomes impossible or unnecessary.
Article 1351. Death or the institution of a measure
of judicial protection regarding
the contractor or service provider
The death or the establishment of a judicial protection measure regarding the entrepreneur or service provider entails the termination of the contractual relationship only if the contract was concluded due to his personal qualities or cannot be continued in an appropriate manner, including with the support of the protector, in which case the beneficiary has the right to declare the resolution.
Section 2
Antrepriza
Article 1352. Enterprise contract
(1) Through the contract of employment, one party (contractor) undertakes to perform, at its own risk, a certain work for the other party (client), and the latter undertakes to receive the work and pay the agreed price.
(2) The object of the construction contract may be both the production or transformation of a good, and the obtaining of other results by performing works.
Article 1353. Transfer of ownership
If the contractor performs the work with his own material, he must transfer ownership of the goods to the client.
Article 1354. Warranty against defects
(1) The contractor must deliver the work to the client free from any material or legal defect.
(2) The work is free from material defects if it has the agreed qualities. If no qualities have been agreed upon, the work is free from material defects if it is suitable for the use assumed under the contract or, if no such use can be inferred, for normal use.
(3) The situation in which the contractor produces a work other than the one ordered or produces the work in a quantity or of a smaller size is assimilated to a material defect, if this performance can be considered, based on the circumstances, as performance of the contract.
(4) The work is free from legal defects when no third party can assert rights against the client.
Article 1355. Significantly exceeding the estimate
(1) In the event of a need to significantly exceed the estimate, the contractor is obliged to immediately inform the client of this fact. Failure to comply with such an obligation entitles the client to declare the termination of the contract and to demand compensation for the damage caused or to be released from the obligation to cover the costs exceeding the agreed estimate.
(2) If the essential exceeding of the estimate was unforeseeable at the conclusion of the contract, the contractor is entitled only to the additional expenses incurred, and the client is entitled to accept this exceeding or to request the termination of the contract.
Article 1356. Information obligations of the entrepreneur
(1) The contractor is obliged to inform the client that:
a) the material presented by the client is unusable or of poor quality;
b) material defects will cause the final product to be affected by defects;
c) compliance with the client’s instructions threatens the durability or usefulness of the work;
d) there are other circumstances beyond the contractor’s control that threaten the durability or usefulness of the work.
(2) In the event that the contractor fails to fulfill the obligation stipulated in paragraph (1), the client has the right to demand compensation for the damage.
Article 1357. The entrepreneur’s right to termination
If the client, having been informed by the contractor in a timely and appropriate manner, does not replace the unusable or substandard material within the agreed term, does not change the instructions regarding the method of performing the work or does not remove other circumstances that threaten the durability or usefulness of the work, the contractor is entitled to declare the termination of the contract and demand compensation for the damage.
Article 1358. The entrepreneur’s right of retention and pledge
The contractor has a right of retention and pledge over the movable property produced or improved by him if, in the course of production or improvement, the property came into his possession. This provision does not apply if the contractor knew, at the time of taking possession, that the owner did not agree to the production or improvement.
Article 1359. Establishment of mortgage on land
construction
If the subject of the contract is a construction or part of a construction, the contractor is entitled, in order to guarantee the rights resulting from the construction contract, to request the establishment of a mortgage on the client’s construction land.
Article 1360. Term for performance of the contract
entrepreneurial
(1) The contracting parties may agree on a general performance deadline, and if necessary, on the deadline for starting the works, on the deadline for executing parts of the work and on the deadline for finishing the work.
(2) The term may be modified only with the mutual agreement of the parties.
(3) If the parties agree, performance may take place within a short period of time or immediately, in the presence of the client.
Article 1361. Effects of the impossibility of completing the work
(1) If the completion of the work becomes impossible for reasons beyond the control of the parties, the contractor shall not have the right to demand payment of remuneration.
(2) The contractor is entitled to remuneration if the impossibility of completing the work occurs due to poor-quality material presented by the client or his instructions, provided that the contractor has fulfilled his information obligations.
Article 1362. Risk of accidental loss or damage
of the object of the contract
(1) The risk of accidental loss or damage to the object of the contract until its receipt shall be borne by the contractor. This risk shall pass to the client upon receipt of the work.
(2) If the client is late in receiving the work, the risk passes to him from the date on which he became late.
Article 1363. Reception
(1) After the performance of the work, the client is obliged to receive the work in the manner, at the place and within the time limit established by legislation or the contract.
(2) Acceptance is a declaration by which the client accepts the work, with or without reservations.
(3) The situation in which the client does not take over the work within the deadline established for this purpose by the contractor is considered to be acceptance.
Article 1364. Documentation of receipt
(1) The defects and deviations found must be stipulated in the acceptance document signed by the parties or drawn up unilaterally, which establishes the manner, conditions and deadlines for eliminating the defects and deviations found.
(2) Defects and deviations shall be eliminated at the contractor’s expense.
(3) The client who has accepted the work without reservations nevertheless retains rights against the contractor in the event of hidden defects.
Article 1365. Complaints
Complaints regarding hidden defects or deviations from the terms of the contract that could not be discovered at the time of receipt of the work shall be presented to the contractor immediately after their discovery.
Article 1366. Remedy of defects
(1) If the work has defects, the client may request their remediation. The contractor may choose either to remedy the defects or to perform new work.
(2) The contractor shall bear the expenses necessary for the remediation, in particular the costs of transport, travel, labor, as well as the price of materials.
(3) The contractor may refuse to remedy the defect if it is only possible with disproportionate costs.
Article 1367. The entrepreneur’s right in the event of
the creation of a new work
If he performs new work, the contractor may request the client to return the work affected by the defects, according to the provisions regarding termination.
Article 1368. The customer’s right to remedy the defect
(1) The customer may, following the unsuccessful expiry of the term set by him for remedy, remedy the defect himself and request compensation for the necessary expenses if the contractor does not refuse the remedy due to disproportionate costs.
(2) Article 1057 shall apply to the situation referred to in paragraph (1) in the appropriate manner. It is not necessary to set a deadline even if the remedy has failed.
(3) The client may request an advance payment from the contractor for the costs of remedying the defect.
Article 1369. Resolution of the enterprise due to
vicious
(1) The client may declare the termination of the contract for a defect in the work according to the legal provisions regarding non-performance of obligations.
(2) For the purposes of art. 916, non-performance is essential when the remedy of the defect has failed.
(3) The contractor must repair the damage caused to the client.
Article 1370. Decrease in the value of the work
The client who did not request the remedy of the defect after the appropriate deadline established for this purpose by the contractor and did not declare the termination of the contract may only reduce the remuneration by an amount corresponding to the decrease in the value of the work due to the defect.
Article 1371. Effects of cunning
If the defects were cunningly concealed, the contractor cannot invoke a convention whereby the customer’s rights regarding the defects are excluded or restricted.
Article 1372. Payment of remuneration according to the contract
entrepreneurial
(1) After receiving the work, the client is obliged to pay the remuneration agreed upon by the parties, unless the legislation or the contract provides for payment in installments, or in another manner.
(2) The client has the right to withhold from the remuneration an amount sufficient to cover the reservations he made upon receipt regarding the defects of the work, until the necessary repairs or corrections are made.
(3) The customer may not exercise the right stipulated in paragraph (2) if the entrepreneur provides sufficient guarantees for the performance of his obligations.
Article 1373. Entrepreneur’s economy
(1) The reduction by the contractor of the cost of the work in relation to that stipulated in the contract without reducing the quality and quantity of the work does not release the client from the obligation to pay the established remuneration.
(2) The parties may agree on another way of distributing the savings obtained as a result of reducing the cost of the work.
Article 1374. Term for discovery of defects
and the limitation period in the business contract
(1) The provisions of Articles 1126 and 1127 shall apply accordingly with regard to defects in the work.
(2) If the contract provides for the receipt of the work in parts, the term for discovering defects runs from the day of receipt of the work as a whole.
Section 3
Services
Article 1375. Service contract
(1) Through the service contract, one party (provider) undertakes to provide the other party (beneficiary) with certain services, and the latter undertakes to pay the agreed remuneration.
(2) The object of the service contract is services of any nature.
(3) Employment contracts are regulated by labor legislation.
Article 1376. Payment term
(1) Payment for services shall be made after the services have been provided.
(2) If the payment for services is calculated over certain periods, the amounts will be granted after the end of each period.
Article 1377. Delay in taking over services
If the beneficiary delays in taking over the services, the provider is entitled to demand payment of the agreed amount for the services that could not be performed due to the delay and is not obliged to provide services for this amount. However, he must accept that the payment amount be deducted from the value of the savings he made by not performing the services or for the income obtained by providing services to others during the same period, or for the services that he does not provide in bad faith.
Article 1378. Ensuring the conditions for the provision of services
(1) The beneficiary, if he is liable, must arrange and maintain the premises, equipment or devices that he must procure for the provision of services and regulate the provision of services that must be carried out under his direction and in accordance with his provisions in such a way that the provider is protected against risks to life and health to the extent that the nature of the service provided allows.
(2) The obligations incumbent on the beneficiary under paragraph (1) cannot be excluded or limited in advance by a contract.
Article 1379. Termination of the relations under the contract
of service provision
(1) The relationships in the service contract shall cease upon expiry of the period for which they were established or upon completion of the service provision.
(2) If the duration of the contractual relationship has not been agreed upon or if the nature or purpose of the services does not provide for a term, either party may declare the termination.
Article 1380. Term of resolution
The resolution pursuant to art. 1379 paragraph (2) may be carried out:
a) daily, starting at the end of the following day, if payment is made daily;
b) no later than the first working day of a week, starting with the end of the following Saturday, if the payment is calculated per week;
c) no later than the 15th of the month, starting with the end of the calendar month, if the payment is calculated per month;
d) with respect for the 6-week notice period, starting with the end of a calendar quarter, if the payment is calculated on a quarterly or longer basis;
e) at any time if the payment is not made depending on time intervals. In the event that the service provision relations occupy the entire working time of the service provider, the notice period must be 2 weeks.
Article 1381. Service contracts
long term
If the service contract is concluded for periods longer than 5 years, the provider may declare the termination after 5 years. The notice period is 6 months.
Article 1382. Tacit extension of the contract
of service provision
If the relations between the parties continue, with the knowledge of the other party, after the end of the term, the service contract is considered extended indefinitely to the extent that the other party does not immediately reject this extension.
Article 1383. Certificate of work performed
by provider
Upon termination of a long-term relationship, the provider may request a written certificate from the other party about the work performed and the period of work.
Section 4
Design services
Article 1384. Scope of application
(1) The provisions of this section apply to contracts in which one party (designer) undertakes to design for the other party (client):
a) an immovable structure to be built by or for the benefit of the client; or
b) a movable or intangible property to be constructed or a service to be provided by or for the benefit of the client.
(2) The contract by which a party undertakes to design and provide a service consisting of the performance of the project shall be subject to the legal provisions regarding the undertaking or, as the case may be, the provision of services, the provisions of this section applying in addition.
Article 1385. Pre-contractual obligation to provide information
The designer has a pre-contractual obligation to inform the client, in particular, that the designer does not possess special knowledge in specific issues that require the involvement of specialists.
Article 1386. Obligation of competence and prudence
Under the obligation of competence and prudence, the designer is obliged in particular:
a) to adjust the project to the works of other designers who have established contractual relationships with the client, in order to allow for the efficient provision of all services involved;
b) integrate the work of other designers that is necessary to ensure the project’s compliance with the contract;
c) include information explaining the project necessary for an average user (or a specific user, who was introduced to the designer at the time of contract conclusion) to be able to execute the project;
d) to enable the user of the project to execute the project without any violation of mandatory legal provisions or without prejudice to the rights of third parties, of which the designer was aware or should reasonably have been aware; and
e) to provide a project that allows for an economically and technically efficient implementation.
Article 1387. Compliance
(1) The project is in accordance with the contract if it offers the user the possibility of achieving a specific result by executing the project with the skill and care that can be reasonably expected.
(2) The customer may not exercise a creditor’s right for non-conformity if the cause of the non-conformity is the indication given by the customer and the designer has fulfilled his obligation to inform.
Article 1388. Project submission
(1) If the designer considers the project (or a part thereof which is capable of being carried out independently of the completion of the rest of the project) to be sufficiently completed and wishes to transfer it to the client, the client must accept it within a reasonable time from the time of being notified.
(2) The client may refuse to accept the project when it (or a relevant part of it) does not conform to the contract and such non-conformity constitutes a fundamental failure to perform.
Article 1389. Data
(1) After the performance of other contractual obligations of both parties, the designer must, at the request of the client, transmit to him all relevant data or copies thereof.
(2) The designer must retain, for a reasonable period, the relevant data that has not been transmitted. Before destroying it, the designer must provide it again to the client.
Article 1390. Limitation of liability
In contracts between businesss, the clause limiting the designer’s liability for non-performance to the value of the structure, good or service to be built or performed by or on behalf of the client according to the design is presumed not to be abusive, except to the extent that it limits liability for damage caused by intentional act or gross negligence committed by the designer or by a person for whose actions the designer is liable.
Section 5
Information and consultation services
Article 1391. Scope of application
(1) The provisions of this section apply to contracts under which one party (supplier) undertakes to provide the other party (client) with information or advice.
(2) The provisions of this section apply, in addition, to the information obligation arising in the provision of treatment services.
(3) The provisions of this section on the provision of information shall apply accordingly to the provision of consultation.
Article 1392. Obligation to collect preliminary data
(1) The provider must, to the extent reasonably necessary for the provision of the service, collect data regarding:
a) the specific purpose for which the client requests the information;
b) the client’s preferences and priorities in relation to information;
c) the decision the client plans to make based on the information; and
d) the client’s personal situation.
(2) Where the information is intended for a group of persons, the data collected must be related to the purposes, preferences, priorities and personal situations that can reasonably be expected of the persons within that group.
(3) If the provider needs to obtain data from the client, the provider will explain to the client what data they need to provide.
Article 1393. Obligation to obtain and use
Specialized knowledge
The provider must obtain and use specialized knowledge to which it has or should have access in its capacity as a business information provider or business consultant, to the extent that this can be reasonably considered necessary for the provision of the service.
Article 1394. Obligation of competence and prudence
(1) Under the obligation of competence and prudence, the provider is obliged in particular to:
a) take reasonable steps to ensure that the client understands the content of the information;
b) act with the competence and prudence that a reasonable provider would demonstrate, in the circumstances of the case, in the process of providing evaluative information; and
c) in any case where the client is to make a decision based on the information, inform the client of the risks involved, to the extent that these risks may reasonably influence the client’s decision.
(2) When expressly or implicitly committing to provide the client with a recommendation to enable him to make a subsequent decision, the provider must:
a) base the recommendation on an analysis based on specialized knowledge collected in relation to the client’s goals, priorities, preferences and personal situation;
b) inform the client about the options he can personally propose in relation to the subsequent decision, as well as about their advantages and risks, compared to those of the recommended decision; and
c) to inform the customer about other options that he cannot provide personally, unless the provider expressly informs the customer that a limited number of options are proposed or if this is clearly evident from the situation.
Article 1395. Compliance
(1) The provider must provide information in accordance with the quantity, quality and description required by the contract.
(2) The factual information provided by the provider to the client must represent a correct description of the current situation.
Article 1396. Data
To the extent reasonably necessary, taking into account the interests of the client, the provider must retain data on the information provided under this section and make such data or extracts from them available to the client upon his reasonable request.
Article 1397. Conflict of interest
(1) If, explicitly or implicitly, it undertakes to provide the client with a recommendation to enable him to make a subsequent decision, the provider must disclose any possible conflict of interest that could influence the performance of its obligations.
(2) As long as the contractual obligations have not been fully executed, the service provider may not establish a relationship with another party that could give rise to a conflict of interest with the client, without informing the client and without obtaining his express or implicit consent.
Article 1398. Relevance of the client’s competence
(1) The involvement of other persons in the provision of services for the benefit of the client or the simple fact that the client is competent in the field does not diminish the obligations of the provider provided for in this section.
(2) The provider is released from these obligations if the client already knows the information or there are reasons to believe that he knows it.
(3) For the purposes of paragraph (2), there are reasons to believe that the client knows the information if it should be obvious to the client without investigation.
Article 1399. Causal link
If the provider knows or should reasonably have known that a subsequent decision will be based on the information provided and if the customer takes such a decision and suffers damage as a result thereof, any failure by the provider to perform an obligation arising from the contract shall be presumed to have caused the damage if the customer proves that, if the provider had provided him with all the necessary information, he would have been reasonably inclined to take a different decision.
Section 6
Treatment services
Article 1400. Scope of application
(1) The provisions of this section apply to contracts in which one party (the treatment service provider) undertakes to provide medical treatment to the other party (the patient).
(2) The provisions of this section shall apply accordingly to contracts by which the treatment service provider undertakes to provide any other service for the purpose of changing the physical or mental state of the person.
(3) If the patient is not a contracting party, he/she is considered a third party to whom the contract grants rights correlative to the obligations that the treatment service provider bears under this section.
Article 1401. Preliminary examination
The treatment service provider must, to the extent reasonably necessary for the provision of the service:
a) ask the patient questions regarding his/her health status, symptoms, illnesses, allergies, previous or other current treatments, as well as treatment preferences and priorities;
b) to carry out the analyses necessary to diagnose the patient’s health status;
c) consult any other treatment service providers involved in the patient’s treatment.
Article 1402. Obligations regarding instruments,
medicines, materials, facilities
and the rooms
(1) The treatment service provider must use instruments, medicines, materials, installations and premises that are at least of the quality required within the framework of accepted and prudent business practice, that correspond to the legal provisions in force, and that are adequate to achieve the specific purpose for which they will be used.
(2) Any clause that derogates from the provisions of this article to the detriment of the patient is absolutely null and void.
Article 1403. Obligation of competence and prudence
(1) Under the obligation of competence and care, the treatment service provider must in particular provide the patient with the level of competence and care that a reasonable treatment service provider would provide in similar circumstances.
(2) If he lacks the experience or competence to treat the patient with the necessary level of competence and caution, the treatment service provider must refer the patient to another treatment service provider capable of providing this level.
(3) Any clause that derogates from the provisions of this article to the detriment of the patient is absolutely null and void.
Article 1404. Obligation to inform
(1) In order to provide the patient with a free choice regarding treatment, the treatment service provider must inform him in particular about the following:
a) the patient’s current health status;
b) the nature of the proposed treatment;
c) the advantages of the proposed treatment;
d) the risks of the proposed treatment;
e) alternatives to the proposed treatment, as well as their advantages and risks compared to those of the proposed treatment; and
f) the consequences if treatment is not sought.
(2) The treatment provider must, in all circumstances, inform the patient of any risk or alternative that could reasonably influence the patient’s decision to accept or refuse the proposed treatment. A risk is presumed to be capable of reasonably influencing the decision if its materialisation would cause serious harm to the patient. Unless otherwise provided, the provisions of Section 5 on the obligation to inform shall apply accordingly.
(3) Information must be provided to the patient in a way that he or she understands.
Article 1405. Obligation to inform in the event of
treatment that is not necessary
or experimental treatment
(1) If the treatment is not necessary to maintain or improve the patient’s health, the treatment service provider must disclose all known risks.
(2) If the treatment is experimental, the treatment service provider must disclose all information regarding the objectives of the experiment, the nature of the treatment, its benefits and risks, as well as its options, even when these are a mere possibility.
(3) Any clause that derogates from the provisions of this article to the detriment of the patient is absolutely null and void.
Article 1406. Exceptions to the obligation to inform
(1) Information that should normally have been provided under the information obligation may not be disclosed to the patient:
a) if there are objective reasons to believe that his health or life will be seriously and negatively influenced; or
b) if he expressly expresses his desire not to be informed, provided that non-disclosure of the information does not harm the health or safety of third parties.
(2) The obligation to provide information may not be fulfilled when treatment is provided in an emergency situation. In such a case, the treatment provider must provide the information later, to the extent possible.
Article 1407. Obligation not to treat without consent
(1) The treatment service provider shall not treat if the patient has not expressed informed consent to it.
(2) The patient may revoke his consent at any time.
(3) As long as the patient is incapable of expressing consent, the treatment service provider may only perform the treatment if:
a) informed consent was obtained from a person or institution empowered by law to make decisions on behalf of the patient regarding treatment;
b) all legal provisions or procedures that allow the treatment to be provided without such consent have been complied with; or
c) treatment must be provided in an emergency situation.
(4) In the situation provided for in paragraph (3), the treatment service provider shall not commence treatment until it has taken into account, to the extent possible, the opinion of the patient incapable of giving consent regarding the treatment, as well as any possible opinion expressed by the patient before he or she became incapable of giving consent, brought to the attention of the treatment service provider.
(5) In the situation provided for in paragraph (3), the treatment service provider has the right to provide only the treatment intended to improve the patient’s health.
(6) In the situation provided for in art. 1405 paragraph (2), consent must be expressed expressly and with reference to the specific treatment.
(7) Any clause that derogates from the provisions of this article to the detriment of the patient is absolutely null and void.
Article 1408. Data
(1) The treatment service provider must record appropriate data about the treatment. This data must relate in particular to the information collected in preliminary interviews, examinations or consultations, information on the patient’s consent and information on the treatment provided.
(2) The treatment service provider, upon reasonable request, must:
a) ensure access to data by the patient or, if the patient is incapable of expressing consent, by the person or institution empowered by law to make decisions on behalf of the patient; and
b) to answer, to the extent reasonable, questions regarding the interpretation of the data.
(3) If the patient has suffered an injury and claims that this is the result of the treatment service provider’s failure to comply with the obligation of competence and prudence, and the treatment service provider does not comply with the provisions of paragraph (2), it shall be presumed that the obligation of competence and prudence was not performed and that there is a causal link between the failure to perform and the injury.
(4) The treatment provider shall retain the data and provide information on their interpretation for a reasonable period of at least 10 years after the end of the treatment, depending on the usefulness of the data for the patient or his successors or representatives and for subsequent treatments. Data that may reasonably be of importance after the reasonable period shall be retained by the treatment provider after the expiry of that period. If, for any reason, the treatment provider ceases to operate, the data shall be archived or transmitted to the patient for future consultation.
(5) Any clause that derogates from the provisions of paragraphs (1)-(4) to the detriment of the patient is absolutely null and void.
(6) The treatment service provider is prohibited from disclosing information about the patient or other persons involved in the patient’s treatment to third parties, unless disclosure is necessary for the protection of third parties or in the public interest. The treatment service provider may use the data anonymously for statistical, educational or scientific purposes.
Article 1409. Legal remedies in case of
of non-performance
In the event of any type of non-performance of the obligation resulting from the treatment services contract, the legal provisions regarding the creditor’s legal means of defense in the event of non-performance apply, with the following adaptations:
a) the treatment service provider may not exercise the right to suspend performance or terminate the contract if this would expose the patient’s health to serious danger; and
b) to the extent that it has the right to suspend performance or has the right of termination and plans to exercise this right, the treatment service provider must recommend another treatment service provider to the patient.
Article 1410. Obligations of medical and sanitary institutions
(1) If, in the process of performing the obligations arising from the treatment services contract, the activities take place in a hospital or in the premises of another medical and healthcare institution, and the hospital or medical and healthcare institution is not a party to the treatment services contract, the hospital or institution must clearly inform the patient that it is not a contracting party.
(2) If the treatment service provider cannot be identified, the hospital or healthcare institution where the treatment took place bears the rights and obligations of the treatment service provider, unless the hospital or healthcare institution informs the patient, within a reasonable time, of the identity of the treatment service provider.
(3) Any clause that derogates from the provisions of this article to the detriment of the patient is absolutely null and void.
Chapter XII
TRANSPORTATION
Section 1
General provisions
regarding transportation
Article 1411. Contract of carriage
(1) Through the contract of carriage, one party (carrier) undertakes to the other party (passenger or consignor) to transport the passenger together with his luggage or, respectively, to transport the goods to the place of destination, and the other party undertakes to pay the agreed remuneration.
(2) The free transportation of a person or property, except when it is carried out in the course of entrepreneurial activity by a person who offers transport services to the public, is not governed by the rules provided for in this chapter and the carrier bears only an obligation of prudence and diligence.
(3) The provisions of this chapter do not apply to transport falling under the scope of the Commercial Maritime Navigation Code of the Republic of Moldova.
(4) The legal provisions regarding the provision of services shall apply to the transport contract to the extent that they do not contradict the provisions regarding the transport contract.
Article 1412. Obligation to conclude a transport contract
The person who makes public the offer of transport of persons and goods is obliged to conclude a transport contract, except in cases where there is a serious reason for refusal.
Article 1413. Successive transport and transport
compound
(1) Successive transport is transport carried out by several successive carriers using the same mode of transport (vehicle).
(2) Combined transport is transport in which carriers take turns using different modes of transport (vehicles).
Article 1414. Substitution of the carrier
(1) In the event that the carrier transfers, in whole or in part, the performance of his obligations, the person who substitutes him is considered a party to the contract of carriage.
(2) The payment made by the passenger or sender to one of the carriers is acquittal.
Article 1415. Term of passenger transportation
or the good
(1) The carrier is obliged to transport the passenger and the luggage or the goods within the time limits established by law or the contract, and in the absence of such time limits, within a reasonable time limit.
(2) Transportation must be carried out by the shortest and most reasonable route.
Article 1416. Transport fee
(1) For the transportation of the passenger and luggage or goods, the transportation fee agreed upon by the parties shall be paid unless the law provides otherwise.
(2) The transport fee is paid until the passenger and luggage or goods are transported, unless the law or the contract provides otherwise.
(3) The carrier has the right of retention over the luggage and goods until the transportation fee is paid.
Section 2
Passenger transport
Article 1417. Ticket (travel document)
(1) The contract of carriage of persons shall be confirmed (documented) by a ticket (travel ticket) or other document giving the right to carriage. The ticket may be issued in electronic format.
(2) The ticket (travel ticket) is transferable unless it has been expressly stipulated that it is non-transferable. The possibility of transfer ceases at the latest at the beginning of the journey.
(3) Any clause that derogates from the provisions of this section to the detriment of the passenger consumer is absolutely null and void.
Article 1418. Charter contract
(1) The charter contract is the transport contract by which the carrier undertakes to transport the charterer or passenger using the means of transport that the carrier grants to the charterer or passenger in full use, together with the operator, for the purpose of transport, and the charterer undertakes to pay the agreed fee. The charter contract may be concluded for a fixed or indefinite period.
(2) By means of a charter contract, the carrier requires the operator of the means of transport to comply with the instructions of the charterer or the passenger to the extent stipulated in the contract. The carrier is responsible for the compliance with the instructions.
(3) The legal provisions regarding lease do not apply to the charter party.
Article 1419. Scope of the obligation
(1) Passenger transport includes embarkation, transhipment, transport and disembarkation operations.
(2) The carrier is obliged to transport the passenger to the destination safely.
Article 1420. Carrier’s liability
(1) The carrier shall be liable to compensate for the damage caused by the death of the passenger, personal injury to the passenger, destruction or damage to his property, subject to the provisions of Article 1421, or by the breach of the term of carriage, unless such damage is the result of an impediment beyond the control of the carrier and the carrier could not reasonably have been required to avoid or overcome the impediment or its consequences or if it is the result of the passenger’s state of health or his act. The carrier shall also be liable to compensate for the damage if it is due to his state of health, that of his servants or the condition or operation of the means of transport.
(2) The carrier’s liability may not be excluded or limited by contract. Any clause to the contrary shall be absolutely null and void.
(3) Limitations on the amount of compensation and the fixed amount of compensation for certain categories of violations or damages, including those of an extra-contractual nature, in public passenger transport are approved by the Government, unless other limitations are established by law.
(4) The carrier is liable, as for his own actions or inactions, for the actions and inactions of his agents and of any other persons whose services he uses for the performance of the transport, if these agents or these persons act in the exercise of their functions.
Article 1421. Carrier’s liability
for luggage
(1) The carrier is liable for the loss of or damage to luggage entrusted to him by the passenger, unless he proves an impediment beyond his control and if he could not reasonably have been required to avoid or overcome the impediment or its consequences, or unless he proves the inherent defect of the goods or the fault of the passenger.
(2) The carrier shall not be liable for the loss of documents, money or other valuables, unless the nature or value of the goods has been declared to him and he has agreed to carry them. The carrier shall not be liable for the loss of hand luggage which has remained under the passenger’s care, unless the latter proves the carrier’s fault.
Article 1422. Baggage claims
(1) In the event of apparent damage to hand luggage, the passenger must notify the carrier of the damage upon leaving the means of transport. In the event of apparent damage to other luggage, notification of the damage must be made upon receipt.
(2) If the luggage is damaged, but the damage is not apparent, notification of the damage shall be made in textual form within 7 days of exiting the means of transport or, if the luggage is received later, of receipt of the luggage.
(3) If hand luggage is lost, the passenger must notify the carrier of the loss upon leaving the means of transport. In the case of loss of other luggage, the passenger must notify the carrier of the loss within 7 days from the date on which the luggage should have been received.
(4) If the passenger does not comply with the provisions of paragraphs (1)-(3), it is presumed that he has received all the luggage in good condition.
(5) The passenger shall forfeit the right to claim compensation, under the law and the contract, for the loss or damage referred to in this article if he fails to notify the carrier of the loss or, as the case may be, damage within one month of arrival at the place of destination.
Article 1423. Carrier’s liability in the event of
successive or combined transport of
people
In the case of successive or combined transport of persons, the person carrying out the transport during which the damage was caused is liable, unless, by express stipulation, one of the carriers has assumed liability for the entire journey.
Article 1424. Joint and several liability of the carrier
and the actual carrier
(1) If the carriage is performed in whole or in part by a person (actual carrier) other than the carrier, the actual carrier shall bear the same liability as the carrier for damage resulting from the death of the passenger, bodily injury to the passenger, loss of or damage to his property, violation of the term of carriage or other failure to perform the obligations arising from the contract of carriage of persons during the performance of the carriage by the actual carrier. The agreement between the carrier and the actual carrier on the extension of the carrier’s liability, compared to that provided for by law, shall apply to the actual carrier only if he has accepted it in textual form.
(2) The actual carrier may raise the same exceptions that the carrier may raise under the contract of carriage concluded with the passenger.
(3) The carrier and the actual carrier are jointly and severally liable towards the passenger.
Article 1425. Exceptions to the limitation of liability
of the carrier
(1) The carrier may not invoke legal provisions that exclude or limit his liability or that reverse the burden of proof if the damage was caused intentionally or through gross negligence.
(2) The provisions of paragraph (1) shall apply accordingly if the acts are committed intentionally or through gross negligence by the carrier’s agents or any other persons whose services he uses for the performance of the transport, if these agents or persons act in the exercise of their functions. In such a case, the agents or other persons shall not be entitled to invoke, with regard to their liability, legal provisions which exclude or limit their liability or which reverse the burden of proof.
Article 1426. Obligations of passengers
(1) During the carriage, passengers must behave in a manner that would not endanger the safety of the means of transport and would not violate the conditions of carriage. Passengers must comply with the instructions of the carrier, the operator of the means of transport or another competent person.
(2) The passenger must present his baggage for carriage in a manner that would not encourage its loss or damage and that would not cause damage to the carrier. If the baggage contains dangerous things, the passenger must notify the carrier of their existence and of the general nature of the danger.
Article 1427. Liability of the charterer
(1) If a passenger or all passengers or their luggage are not ready for carriage at the agreed time for any reason, the carrier may declare the termination of the charter contract or may commence the voyage. If the carrier suffers damage because a passenger or all passengers or their luggage are not ready for carriage at the agreed time for any reason, the charterer shall be liable to compensate the carrier.
(2) The charterer is obliged to compensate the carrier for the damage caused by the fact that a passenger does not possess the necessary documents for which the charterer is responsible.
(3) In the case of carriage under a charter party, the charterer is required to compensate the carrier for the damage caused by the carrier’s compliance with the charterer’s or a passenger’s instructions in the course of performing the contractual obligations, unless the operator of the means of transport does not act reasonably in carrying out the instructions.
Article 1428. Passenger liability
The passenger is liable for damages caused to the carrier by his conduct or by the nature or condition of the hand luggage, except in the case where the damage arose despite the diligent conduct of the passenger. The passenger cannot invoke the defects or nature of his own luggage to release himself from liability.
Article 1429. Termination of the transport contract
of people
(1) The passenger may declare the termination of the passenger transport contract at any time if this does not cause delays. He is obliged to pay the carrier the compensation caused by the termination.
(2) If circumstances within the carrier’s sphere become known about which the passenger could not have known and which, if known, would have given him a valid reason not to conclude the passenger transport contract, the passenger may declare the termination of the passenger transport contract.
(3) The passenger may also declare the termination of the passenger transport contract when it is foreseeable that delays will occur in relation to the agreed time and duration. In this case, the obligation to pay compensation does not arise.
Article 1430. Provisions applicable to the carriage of luggage
In addition to the provisions of this section, the provisions of Articles 1438, 1444, 1446, 1447, 1452 and 1455 shall apply to the carriage of luggage unless the parties have agreed otherwise.
Section 3
Transport of goods
§1. Conclusion and performance of the contract
transportation of goods
Article 1431. Transport with several vehicles
If the vehicle on which the goods being transported are loaded travels a portion of the journey by sea, by rail, by river or canal or by air, and the goods are not unloaded (transshipped), the provisions of this section shall apply to the entire transport.
Article 1432. Form of the transport contract
(1) The transport contract is evidenced by a consignment note (bill of lading or other equivalent document).
(2) The absence, loss or damage of the consignment note does not affect the validity of the transport contract.
Article 1433. Preparation of the consignment note
(1) The consignment note shall be drawn up by the sender unless the parties have agreed otherwise.
(2) The consignment note shall be drawn up in at least 3 copies which shall be signed by the consignor and the carrier, these signatures being able to be printed or replaced by the stamps of the consignor and the carrier. The first copy shall be kept by the consignor, the second shall accompany the goods, and the third shall be given to the carrier.
(3) If the goods are loaded into several vehicles or if they are goods of different types or goods distributed in different lots, both the carrier and the consignor may request the drawing up of a number of consignment notes equal to the number of vehicles used or the number of types of goods or lots of goods.
Article 1434. Contents of the consignment note
(1) The consignment note must contain the following data:
a) place and date of preparation;
b) the name and address of the sender;
c) the name and address of the carrier;
d) the place and date of receipt of the goods and the place provided for their release;
e) the name and address of the recipient;
f) the current name of the nature of the good and the type of packaging, and for dangerous goods, their generally recognized name;
g) the number of packages, their special markings and numbers;
h) the gross weight or otherwise expressed quantity of the goods;
i) transportation expenses (transportation tax, ancillary expenses, customs duties and other expenses incurred from the conclusion of the contract until release);
j) the necessary instructions for customs formalities and others, as appropriate.
(2) Where applicable, the consignment note must also contain the following information:
a) prohibition of transhipment;
b) the expenses that the sender bears;
c) the total reimbursement amounts to be collected upon release of the goods;
d) the declared value of the property and the amount representing the special interest upon release;
e) the sender’s instructions to the carrier regarding the insurance of the goods;
f) the agreed time limit within which the transport must be carried out;
g) list of documents submitted to the carrier.
(3) The parties may include in the consignment note any other indication they consider useful.
Article 1435. Incorrectness of entered data
in the consignment note
(1) The sender is liable for all expenses and damage caused to the carrier due to the inaccuracy or insufficiency of:
a) the indications referred to in art. 1434 paragraph (1) letters b), d)-h) and j);
b) the indications referred to in art. 1434 paragraph (2);
c) any other indications or instructions given by him for the issuance of the consignment note or to be included therein.
(2) If, at the request of the consignor, the carrier enters in the consignment note the particulars indicated in paragraph (1), it shall be deemed, until proven otherwise, that he acted on behalf of the consignor.
Article 1436. Obligations of the carrier upon taking over
PROPERTY
(1) Upon taking over the goods, the carrier is obliged to verify:
a) the accuracy of the statements in the consignment note regarding the number of packages, as well as their marking and numbers;
b) the external appearance of the good and its packaging;
c) the method of loading and arranging the goods in the vehicle.
(2) If he does not have the appropriate means to verify the data referred to in paragraph (1) letter a), the carrier shall record his reasoned reservations in the consignment note. He shall also state the reasons for his reservations regarding the external condition or packaging of the goods. The reservations shall not bind the consignor unless he has expressly accepted them in the consignment note.
(3) The sender may request the carrier to verify the gross weight or otherwise expressed quantity of the goods and the contents of the packages. The carrier shall be entitled to compensation for the costs of verification. The result of the verification shall be recorded in the consignment note.
Article 1437. Shipper’s liability for packaging
The sender is liable to the carrier for damage caused (by improper packaging of the goods) to persons, transport equipment or installations or other goods, as well as for all expenses generated by such packaging, unless the carrier has made no reservations regarding the deficiencies, although these were obvious or known to him upon takeover.
Article 1438. Annexes to the consignment note
(1) The sender must attach to the consignment note the documents necessary for customs clearance (as applicable) or other similar operations prior to delivery to destination, or make these documents available to the carrier with all the necessary information.
(2) The carrier is not obliged to check whether the documents or indications are appropriate and sufficient. The consignor is liable to the carrier for damage caused by errors or by the incomplete or false nature of the documents or indications if the carrier is not partly at fault.
(3) The carrier shall be liable, in accordance with the legal provisions on the mandate, for the loss or improper use of the documents attached to the consignment note or handed over to him. However, he shall not be liable for compensation greater than that for the loss of the goods.
Article 1439. Effects of signing the consignment note
(1) The consignment note serves as evidence, until proven otherwise, of the conclusion and content of the transport contract, as well as of the takeover of the goods by the carrier.
(2) If the consignment note does not contain the carrier’s justified reservations, it shall be presumed, until proven otherwise, that the goods and packaging were, upon receipt, in good condition, and that the number of packages, as well as their markings and numbers, corresponded to the data in the consignment note.
Article 1440. Right to terminate the contract
transportation by the sender
(1) The sender has the right to terminate the transport contract at any time.
(2) If the sender declares the termination of the contract of carriage for reasons other than non-performance by the carrier, the latter may demand payment of the carriage charge and other expenses, with the deduction of the savings that the carrier has obtained or should obtain as a result of the termination.
(3) Instead of the claim based on the provisions of paragraph (2), the carrier may request payment of one third of the transport fee.
(4) If the goods have already been loaded before the termination, the carrier may request instructions from the consignor regarding further operations with the goods or may request the unloading of the goods without undue delay. If he does not receive instructions within a reasonable time, the carrier may take the measures provided for in Article 1446 at the expense of the consignor.
(5) If, in the case provided for in paragraph (4), the consignor gives instructions to unload the goods, the carrier is obliged to unload the goods only if this is possible without hindering its current activity and without causing damage to other consignors or consignees.
(6) If the sender declares the termination due to non-performance by the carrier, the latter is obliged to unload the goods without undue delay, at his own expense.
Article 1441. The sender’s right to dispose of the goods
(1) The consignor has the right to dispose of the goods. He may, in particular, request the carrier not to transport the goods further, to change the place of delivery or the consignee mentioned in the consignment note.
(2) The right provided for in this article in paragraph (1) shall cease when the second copy of the consignment note is handed over to the consignee or when he exercises his right provided for in article 1443 paragraph (2). From that moment on, the carrier must comply with the consignee’s instructions.
(3) The right of disposal arises for the recipient at the time of drawing up the consignment note if the sender enters a note to this effect in the consignment note.
(4) If the recipient, exercising his right of disposal, has ordered the delivery of the goods to a third party, the latter does not have the right to designate, in turn, another recipient.
(5) The exercise of the right of disposal is subject to the following rules:
a) the sender or recipient mentioned in paragraph (3) must, if he wants to exercise his right of disposal, present the first copy of the consignment note, in which the new instructions given to the carrier are entered, and bear the damage, including the expenses incurred by the carrier in fulfilling these instructions;
b) the fulfillment of the instructions must be possible at the moment they reach the person who is to fulfill them and must not hinder the carrier’s current activity nor cause damage to other senders or recipients;
c) the indications must not lead to a fragmentation of the transport.
(6) If the carrier cannot comply with the instructions received pursuant to paragraph (5) letter b), he must immediately notify the person who gave the instructions.
(7) The carrier who does not comply with the instructions given in compliance with the provisions of this article or who complies with such instructions without requesting the first copy of the consignment note shall be liable to the person entitled for the damage thus caused.
Article 1442. Negotiable bill of lading
(1) The consignment note is not negotiable unless it contains an express mention to this effect or unless the law provides otherwise.
(2) If negotiable, the order bill of lading shall be transmitted by endorsement, and the bearer bill of lading shall be transmitted by remittance.
(3) When the bill of lading is to order or to bearer, the ownership of the goods is transferred by the effect of the transmission of this bill of lading.
(4) The form and effects of endorsements, the cancellation and replacement of the bill of lading are subject to the provisions regarding bills of exchange and promissory notes.
(5) The last endorser of an uninterrupted series of endorsers who is in possession of the title shall be deemed to be the owner. The debtor who fulfils his obligation arising from the title shall be released, unless there has been fraud or gross negligence on his part.
Article 1443. Rights of the recipient upon receipt
PROPERTY
(1) After the goods arrive at the place designated for delivery, the recipient has the right to request from the carrier, against a receipt, the second copy of the consignment note and the handover of the goods.
(2) If the loss of the goods has been ascertained or if the goods have not arrived within the period provided for in art. 1451, the recipient may, in his own name, assert against the carrier the rights arising from the transport contract.
(3) The consignee who exercises his rights under paragraphs (1) and (2) must pay the total amount of the payments resulting from the consignment note. In the event of any discrepancy in this respect, the carrier is obliged to deliver the goods only if the consignee provides guarantees.
Article 1444. Impossibility of performance of the contract
(1) If, for any reason, before the goods have reached their destination, the performance of the contract under the conditions set out in the consignment note is or becomes impossible, the carrier must ask the entitled party for instructions on how to dispose of the goods in accordance with art. 1441.
(2) If circumstances allow the carriage to be carried out under conditions other than those established in the consignment note and he cannot obtain instructions from the entitled party within a reasonable time in accordance with art. 1441, the carrier must take the measures he considers best in the interests of the entitled party.
Article 1445. Circumstances preventing surrender
PROPERTY
(1) If, after the arrival of the goods at the place of destination, impediments to release arise, the carrier shall request instructions from the consignor. If the consignee refuses to take over the goods, the consignor shall have the right to dispose of them without presenting the first copy of the consignment note.
(2) The recipient may, even in the event of refusal to take over the goods, still request their delivery as long as the carrier has not received a contrary indication from the sender or has not disposed of the goods.
(3) If an impediment to delivery arises after the recipient has given instructions, based on his prerogatives provided for in art. 1441 paragraph (3), that the goods be delivered to a third party, then, when applying the provisions of paragraphs (1) and (2) of this article, the recipient takes the place of the sender, and the third party – the place of the recipient.
Article 1446. The carrier’s right to compensation
expenses for fulfilling the instructions
SENDER
(1) The carrier is entitled to compensation for the expenses incurred in the request and fulfillment of the instructions if he is not obliged, under the contract or the law, to bear these expenses.
(2) In the cases referred to in Article 1444, paragraph (1) and Article 1445, the carrier may immediately unload the goods at the expense of the person entitled to dispose of them. After unloading, the transport shall be deemed to have been completed. The carrier shall retain the goods for the person entitled to dispose of them. He may, however, entrust them to a third party and shall be liable, in such case, only for the diligence of the third party’s choice. The goods shall remain subject to the claims arising from the consignment note as well as to all other expenses.
(3) The carrier may organize the sale of the goods without waiting for instructions from the entitled party if the goods are perishable or if the condition of the goods justifies such a measure, or if the costs of storage are disproportionate to the value of the goods. He may also organize the sale in other cases if he does not receive contrary instructions from the entitled party within an appropriate period of time, the performance of which he may be required to comply with on the basis of the principle of equity.
(4) If the goods are sold in accordance with the provisions of this article, the price obtained shall be made available to the person entitled to dispose of the goods after deduction of the costs incurred in respect of the goods. If these costs exceed the price obtained, the carrier may claim the difference.
(5) The method of sale shall be determined according to the laws or customs of the place where the property is located.
Article 1447. Right of retention on property
The carrier has the right of retention over the goods as long as he can dispose of the goods for all costs arising from the transport contract.
§2. Carrier’s liability
Article 1448. Grounds for the carrier’s liability
(1) The carrier is liable for the destruction, total or partial loss or damage to the goods to the extent that the destruction, loss or damage occurred between the time of takeover and the time of delivery, as well as for exceeding the delivery deadline.
(2) The carrier is liable, as for his own actions or inactions, for the actions and inactions of his servants and of any other persons whose services he uses for the performance of the transport, if these servants or these persons act in the exercise of their functions.
Article 1449. Exoneration from liability
(1) The carrier is exempt from liability for the destruction, loss, damage to the goods or exceeding the delivery deadline if:
a) these are due to the fault of the person entitled to dispose of the property;
b) they are due to the instructions of the person entitled to dispose of the goods, if they were not caused by the carrier’s fault;
c) these are due to an inherent defect of the good;
d) they are due to circumstances which the carrier could not avoid and the consequences of which he could not prevent.
(2) The carrier cannot be exempted from liability due to defects in the vehicle it uses to perform the transport, nor due to the fault of the lessor or the latter’s agents.
(3) Subject to the provisions of art. 1450 paragraphs (2)-(5), the carrier is exempt from liability if the destruction, loss or damage to the goods results from the special risks inherent in one or more of the following circumstances:
a) the use of open vehicles, without a tarpaulin, if this use has been expressly agreed and recorded in the consignment note;
b) lack of or defects in packaging for goods exposed by their nature to loss or damage, if these goods are not packaged or are packaged improperly;
c) the handling, loading, stacking or unloading was carried out by the consignor, consignee or a third party acting for the consignor or consignee;
d) the nature of goods exposed, due to their very nature, either to total or partial loss or to deterioration, in particular through breakage, rust, internal and spontaneous deterioration, drying, leakage, normal loss or through the action of insects or rodents;
e) insufficiency or imperfection of markings or package numbers;
f) transportation of live animals.
(4) If, under the provisions of this article, the carrier is not liable for some factors which caused the damage, his liability shall be incurred only to the extent that the factors for which he is liable, under the provisions of this article, contributed to the damage.
Article 1450. The burden of proof
(1) The burden of proof that the destruction, loss, damage to the goods or the exceeding of the delivery deadline is due to one of the circumstances mentioned in art. 1449 paragraph (1) lies with the carrier.
(2) If the carrier claims that, depending on the circumstances, the destruction, loss or damage to the goods could have occurred due to one or more of the risks referred to in art. 1449 paragraph (3), it shall be presumed that the damage occurred in this way. The person entitled to dispose of the goods may, however, prove that the damage did not occur or did not occur exclusively due to one of these risks.
(3) The presumption provided for in paragraph (2) does not operate in the case referred to in art.1449 paragraph (3) letter.
a) for abnormal losses or for the loss of entire packages.
(4) When transporting goods by a vehicle equipped with special installations to protect the goods against the effects of heat, cold, temperature changes or air humidity, the carrier may invoke the provisions of art. 1449 paragraph (3) letter d) only if he proves that he has taken all possible measures, taking into account the circumstances, to select, maintain and use these special installations and that he has complied with the special instructions given in this regard.
(5) The carrier may invoke the provisions of art. 1449 paragraph (3) letter f) only if he proves that he has taken all the measures that, normally, taking into account the circumstances, must be taken and that he has complied with the special instructions he has received.
Article 1451. Violation of the delivery term of the goods
The delivery period is breached when the goods have not been delivered within the agreed period or, if no period has been agreed, when the actual duration of the transport exceeds the period that can reasonably be granted to a diligent carrier, taking into account the circumstances and, in particular, in the case of a partial load, the time required to assemble a full load under normal conditions.
Article 1452. Presumption of loss of property
(1) The person entitled to dispose of the goods may, without providing further evidence, consider the goods lost if they have not been delivered within 30 days of the expiry of the delivery period or, if no such period has been agreed upon, within 60 days of the goods being taken over by the carrier.
(2) The person entitled to dispose of the property may request in writing, upon receipt of compensation for the lost property, to be immediately notified if the property has been found within one year of the payment of the compensation. This request must be confirmed in writing by the person liable.
(3) The person entitled to dispose of the goods may, within 30 days of receiving the notification referred to in paragraph (2), demand that the goods be delivered to him against the satisfaction of the claims arising from the consignment note and the return of the compensation received, withholding, as the case may be, the costs of recovering the damage. His claims for compensation for breach of the delivery deadline pursuant to art. 1455 and, possibly, art. 1458 remain unaffected.
(4) If the request provided for in paragraph (2) has not been made or no indication has been given within the period mentioned in paragraph (3), or if the goods have been found more than one year after the payment of compensation, the carrier may dispose of the goods at his own discretion.
Article 1453. Delivery of goods without taking cash on delivery
If the goods are delivered to the recipient without taking over the cash on delivery which, according to the contract, the carrier was supposed to take over, the carrier, while retaining its right of recourse against the recipient, is obliged to compensate the sender up to the value of the cash on delivery.
Article 1454. Rules for shipping goods
dangerously
(1) The consignor must inform the carrier, if he delivers dangerous goods, of the exact nature of the danger and indicate the necessary safety measures. If all this is not recorded in the consignment note, the consignor or the consignee must prove in some other way that the carrier was aware of the exact nature of the dangers associated with the carriage of the goods.
(2) If the carrier was not aware of the danger under the conditions of paragraph (1), the dangerous goods may be unloaded, destroyed or rendered harmless by the carrier at any time and without the obligation to pay compensation. The consignor shall be liable, in addition, for the damage, including the costs, caused by the handover, transport, unloading and destruction of such goods.
Article 1455. Determining the value of property upon loss
and the payment of compensation
(1) If, under the provisions of this section, the carrier is required to pay compensation for the total or partial loss of the goods, the compensation shall be calculated on the basis of the value of the goods at the place and time of takeover.
(2) The value of the good is determined based on the stock exchange price, and in the absence of such a price, based on the market price, and in the absence of such prices, at the usual price of goods with the same characteristics.
(3) However, the compensation may not exceed 8.33 units of account per kg of missing gross weight.
(4) In addition to the payment of compensation provided for in paragraph (1), transport fees, customs duties and other transport costs shall be refunded, namely, in the case of total loss of the goods – in full, and in the case of partial loss – in part. No other compensation for loss shall be due.
(5) If the goods were delivered with delay, and the person entitled to dispose of them proves that he suffered damage as a result, the carrier shall pay compensation, which shall not exceed the amount of the transport fee.
(6) A higher compensation may only be claimed in case of declaration of the value of the goods according to art. 1456 or declaration of special interest upon delivery according to art. 1458.
(7) The unit of calculation referred to in paragraph (3) represents the unit of Special Drawing Rights as defined by the International Monetary Fund.
(8) The amounts calculated according to paragraph (3) shall be recalculated at the official exchange rate of the Moldovan leu valid on the date of takeover of the goods by the carrier or on any other date agreed upon by the parties.
Article 1456. Declaration of the value of the property
The sender may declare in the consignment note, against payment of an agreed price supplement, a value of the goods that exceeds the limit referred to in art. 1455 paragraph (3) and, in this case, the declared value replaces this limit.
Article 1457. Liability for damage to property
(1) In the event of damage to the goods, the carrier shall bear liability equal to the depreciation of the goods.
The extent of the compensation is determined according to art. 1455 para. (1), (2) and (4).
(2) However, the compensation may not exceed:
a) if the total value of the property is depreciated by deterioration, the amount that would have been paid in the event of total loss;
b) if only part of the property has been depreciated by deterioration, the amount that would have to be paid in the event of loss of the depreciated part.
Article 1458. Special interest of the sender
(1) In exchange for a supplement to the transport charge, the sender may establish, by recording in the consignment note, the amount that represents his interest in ensuring that the goods are not lost, damaged or delivered late.
(2) If the special interest in the delivery has been communicated, compensation equal to the additional damage for which proof has been provided may be claimed, independently of the compensation provided for in Articles 1455, 1456 and 1457 and up to the equivalent of the declared interest.
Article 1459. The right to interest of the entitled party
to dispose
The person entitled to dispose of the goods may claim interest on the compensation due at the rate of 5% per annum. Interest shall commence to run from the moment the claim is filed against the carrier or, if no such claim has been filed, from the moment he is summoned to court.
Article 1460. The carrier’s right in the event of
non-contractual claims
(1) If the destruction, loss, damage or delay occurring during carriage covered by the provisions of this section give rise, in accordance with the applicable law, to non-contractual claims, the carrier may oppose them by invoking the provisions of this section which exclude his liability or which determine or limit the extent of the compensation due.
(2) If extra-contractual claims for destruction, loss, damage or delay are made against an employee, he may also invoke the provisions of this section to the extent that they exclude his liability or determine or limit the extent of the damages due.
Article 1461. Prohibition of carrier exemption
of responsibility
(1) The carrier may not invoke the provisions of this section which exclude or limit his liability or which reverse the burden of proof if the damage was caused intentionally or through gross negligence.
(2) The provisions of paragraph (1) shall apply accordingly if the acts are committed intentionally or through gross negligence by the carrier’s servants or by any other persons whose services he has recourse to for the performance of the carriage, if these servants or such persons are acting in the exercise of their functions. In such a case, the servants or such other persons shall not be entitled to rely, in respect of their liability, on the provisions of this section which exclude or limit their liability or which reverse the burden of proof.
§3. Claims and actions
Article 1462. Presentation of claims
(1) If the consignee has received the goods without having properly checked their condition in contradiction with the carrier or if, at the latest at the time of delivery, in the case of apparent loss or damage, or within 7 days, excluding Sundays and public holidays, from the date of delivery, in the case of non-apparent loss or damage, he has not made reservations to the carrier, indicating the general nature of the loss or damage, then it is presumed, until the contrary is proven, that he has received the goods in the condition described in the consignment note. In the case of non-apparent loss or damage, the reservations mentioned above must be made in writing.
(2) If the consignee and the carrier have jointly checked the condition of the goods, evidence to the contrary to the result of this check shall be admissible only in the case of losses or damage that cannot be recognized upon external (apparent) examination, provided that the consignee has made written objections to the carrier within 7 days, excluding Sundays and public holidays, from the date of that check.
(3) Compensation may be claimed for breach of the delivery deadline only if, within 21 days from the moment the goods were made available to the recipient, a written objection is submitted to the carrier.
(4) The carrier and the consignee are obliged to grant each other all appropriate facilities for the necessary findings and verifications.
Article 1463. The limitation period in relations
transportation
(1) The limitation period in transport relations is one year. In the case of intent or gross negligence, the limitation period is 3 years.
(2) The limitation period begins to run:
a) in case of partial loss, damage to the goods or violation of the delivery deadline – from the day the goods are handed over to the recipient;
b) in the case of total loss – on the 30th day after the expiration of the transportation term, and if this term is not established by the parties or by law – on the 60th day from the day the goods are taken over by the carrier;
c) in all other cases – on the day of expiry of a period of 3 months from the date of conclusion of the transport contract.
(3) A written claim suspends the limitation period until the day on which the carrier rejects the claim in writing and returns the attached documents. In the event of partial acceptance of the claim, the limitation period shall resume only for the part of the claim that remains in dispute. The burden of proof of receipt of the claim or of the response and of the return of the documents shall lie with the party invoking this fact. Subsequent claims having the same subject matter shall not suspend the limitation period.
§4. Provisions relating to the transport carried out
by successive carriers
Article 1464. Liability of successive carriers
(1) If a transport which is the subject of a single contract is performed by several successive carriers, each of them is liable for the performance of the entire transport.
(2) The second carrier and any subsequent carrier shall, by taking over the goods and the consignment note, become parties to the contract to the extent of the conditions set out in the consignment note.
Article 1465. Taking over the goods from the carrier
previous
(1) The carrier who takes over the goods from the previous carrier must give the latter a dated and signed acknowledgement of receipt. He must enter his name and address on the second copy of the consignment note. If applicable, he shall enter his reservations in accordance with Art. 1436 para. (2) on the second copy of the consignment note and on the acknowledgement of receipt.
(2) The relations between successive carriers are regulated by the provisions of art. 1439.
Article 1466. Filing claims against carriers
success
(1) An action for compensation for the destruction, loss or damage of the goods or for the breach of the delivery term may be brought only against the first carrier, the last carrier or the one who performed that part of the transport in which the event or fact that caused the destruction, loss, damage or delay occurred.
(2) One and the same action may be brought against several of these carriers.
Article 1467. Right of recourse
If it has paid compensation under the provisions of this chapter, the carrier has the right of recourse, for the amount paid, together with interest and expenses incurred, against the carriers who participated in the performance of the transport contract, according to the following rules:
a) if the damage was caused by a carrier, he must bear alone the compensation paid by him or by another carrier;
b) if the damage was caused by the act of two or more carriers, each shall pay an amount proportional to his share of liability. If the share of liability of each cannot be determined, the carriers shall be liable according to their share of the transport charge;
c) if it cannot be established which of the carriers is liable for the damage, the compensation shall be distributed among all carriers in the proportion determined according to the rule referred to in letter b).
Article 1468. Inability to pay of one of the carriers
If a carrier is unable to pay, the part of the compensation due to it and which it has not paid shall be borne by the other carriers in proportion to their share of the transport fee.
Article 1469. Exceptions to the action for recourse
(1) The carrier against whom the right of recourse is exercised, pursuant to articles 1467 and 1468, may not object that the carrier exercising the recourse has paid the injured party without owing if the compensation has been established by court decision and if the carrier against whom the recourse is exercised has been duly informed of the ongoing process and has the possibility to intervene in this process.
(2) The provisions of Article 1463 shall apply to actions for redress between carriers. However, the limitation period shall run either from the date of a final judgment fixing the compensation to be paid under the provisions of this section or, in the absence of such a judgment, from the date of actual payment.
Article 1470. Carriers’ right to derogate
from the provisions of this code
Carriers have the right, without prejudice to the interests of the sender or the recipient, to agree among themselves on rules that derogate from the provisions of articles 1467 and 1468.
Article 1471. Nullity of conventions
(1) Without prejudice to the provisions of art. 1470, any clause which, directly or indirectly, derogates from the provisions of this section shall be absolutely null and void. The nullity of such clauses shall not result in the nullity of the other clauses in the contract.
(2) In particular, any agreement that would cede the benefit of insurance of the goods to the carrier, as well as any similar agreement, is void.
(3) The agreement on the basis of which the burden of proof is reversed is also void.
Chapter XIII
MANDATE
Article 1472. Mandate contract
(1) Through the mandate contract, one party (principal) empowers the other party (agent) to represent it in concluding juridical acts or in another way to directly affect the legal position of the principal in relation to a third party, and the agent, by accepting the mandate, undertakes to act in the name and on behalf of the principal.
(2) The provisions regarding the mandate shall apply accordingly also when the agent has only the right, but not the obligation, to act in the name and on behalf of the principal.
(3) The principal is obliged to cooperate with the agent for the purpose of exercising the mandate. The principal is obliged, in particular:
a) respond to requests from the trustee to provide information to the extent that this information is necessary to enable the trustee to fulfill its contractual obligations;
b) to give instructions regarding the performance of contractual obligations to the extent required by the contract or resulting from a request to give instructions pursuant to the provisions of art. 1486.
Article 1473. Acceptance of mandate
Acceptance of the mandate is express or tacit. Acceptance is tacit if it results from the acts or even from the silence of the mandate holder.
Article 1474. Form of mandate
(1) The mandate given for the conclusion of a juridical act subject, according to the law, to a certain form must comply with that form, under the sanction applicable to the respective juridical act.
(2) The formal requirement of the mandate provided for in paragraph (1) shall be considered met even when only the power of attorney issued by the principal bears that form.
Article 1475. Special mandate and general mandate
(1) The mandate may be specific for a legal operation or for certain specific operations (for a business or for certain businesses) or general (for all the business of the principal).
(2) The mandate formulated in general terms only confers the power to conclude administration and conservation acts. The power to conclude other acts shall be formulated only by an express clause, with the exception of the mandate for future protection.
Article 1476. Remuneration of the trustee
(1) The principal is obliged to pay the agent remuneration only in the cases provided for by law or contract.
(2) The mandate performed by a business is presumed to be for a fee.
(3) In the case of a onerous mandate, the principal is obliged to pay the agent the remuneration established by contract, based on the law, by custom or depending on the value of the services provided.
(4) The agent has the right to withhold from the amounts he must remit to the principal what the principal owes him for the performance of the mandate. He has the right to withhold from the amounts entrusted for the performance of the mandate what is due to him.
(5) The remuneration shall be paid at the time when the mandate has been fulfilled and the agent has reported on it to the principal.
Article 1477. Remuneration of the trustee after termination
the mandate contract
(1) If the parties have agreed on the payment of remuneration for the services provided, the mandate contract has terminated, but the mandate has not been fulfilled, the remuneration shall be paid from the moment the mandated person reports on the performance of the obligations arising from the contract.
(2) If the mandate is given for the conclusion of a juridical act, and the principal concluded the juridical act independently or another person designated by the principal concluded the juridical act on behalf of the principal, the agent is entitled to remuneration or a proportional share of the remuneration if the conclusion of the juridical act can be attributed, in whole or in part, to the performance of the agent’s obligations arising from the contract.
(3) If the mandate is given for the conclusion of a juridical act and it is concluded after the termination of the mandate contract, the principal must pay the remuneration if the following conditions are cumulatively met:
a) the remuneration was agreed only for the conclusion of the juridical act;
b) the conclusion of the juridical act is mainly the result of the efforts of the agent;
c) the juridical act is concluded within a reasonable period after the termination of the mandate contract.
Article 1478. Powers of the agent
(1) The powers of the agent are not limited to the express provisions of the mandate, but extend to everything that can be deduced from its content and essence, with the exceptions provided for in art. 1475 paragraph (2).
(2) The agent may conclude all acts that can be deduced from his powers of attorney and that are necessary for the fulfillment of the mandate.
(3) The powers granted to a person to conclude acts related to the profession or function he exercises and which result from their nature do not have to be expressly stipulated.
Article 1479. Obligation to act in the interest of the principal
(1) The agent must act in accordance with the interests of the principal, to the extent that they have been communicated to him or it could reasonably be expected that the agent knows them.
(2) If he does not know the principal’s interests sufficiently to allow him to properly execute the obligations arising from the contract, the agent is required to request information from the principal.
Article 1480. Obligation of competence and prudence
(1) The agent is required to perform his obligations arising from the contract with the competence and prudence that the principal is entitled to expect in the circumstances.
(2) If he professes a higher level of competence and prudence, the trustee is required to demonstrate that level of competence and prudence.
(3) If the trustee is or claims to be a member of a group of businesss for which there are standards (codes of conduct, ethics, deontology, etc.) established by a competent authority or by the group itself, the trustee is required to demonstrate the competence and prudence required by those standards.
(4) In determining the level of competence and prudence that the principal can be expected to exercise, the following shall be taken into account, in particular:
a) the nature, extent, frequency and predictability of the risks inherent in the performance of obligations;
b) if the obligations are performed by a person who is not a business or if the mandate is free of charge;
c) the amount of remuneration for the performance of obligations;
d) the time reasonably available for the performance of the obligations.
Article 1481. Transmission of the performance of the mandate
to a third party
(1) The agent is obliged to execute the mandate personally unless he is expressly allowed to delegate the powers to a third party. It is allowed to attract help to assist the agent in the exercise of the mandate.
(2) If the interests of the principal so require, the agent must delegate the powers to a third party if, due to unforeseeable circumstances, he cannot exercise the mandate and is unable to inform the principal about it in a timely manner.
(3) For the acts of the person to whom he delegated powers without being authorized, the agent is liable as for his own acts.
(4) If the delegation of powers to a third party is permitted, the agent is liable only for the fault attributable to him in relation to the choice of the third party and for the manner in which he transmitted the instructions.
(5) The principal has in all cases the right to bring an action against the person who assisted or substituted the agent.
(6) The provisions of paragraphs (1), (3)-(5) shall apply accordingly to the assignment of powers of attorney by the agent to a third party (substitution of the agent).
Article 1482. Appointment of several agents
(1) If, for the conclusion of a juridical act, several agents are appointed, any of them may conclude the act independently, except in the case where the need for the consent of the other agents expressly results from the law or the contract.
(2) If it has been stipulated that the agents are to conclude all the acts referred to in the mandate together, they are jointly liable for the performance of the obligations assumed.
(3) If the agent alone concludes the juridical acts that he was empowered to conclude together with another person, the agent exceeds his powers, except in the case when he concludes the juridical act under more advantageous conditions for the principal than those agreed upon.
Article 1483. Double representation
(1) The agent who accepts to represent, for the conclusion of the same act, persons whose interests are or could be in conflict is obliged to inform each principal, except in the case when the customs or the knowledge by the principals of the dual representation exempts the agent from this obligation.
(2) In the case of dual representation, the agent shall act impartially towards each principal.
(3) The principal who is not able to be aware of the double representation may, if he has suffered damage, request the declaration of nullity of the act concluded by the agent.
Article 1484. Concluding an act with oneself
(1) The agent may not conclude juridical acts on behalf of the principal with himself, even through a representative, except when expressly authorized or when the principal is aware of the fact and does not object to it.
(2) Only the principal may request the declaration of nullity of the juridical act concluded in violation of the rule provided for in paragraph (1).
Article 1485. Deviation from the principal’s instructions
(1) The principal has the right to give instructions to the agent, and the agent is obliged to carry them out.
(2) The agent is entitled to deviate from the instructions of the principal if, depending on the circumstances, he can assume that the principal, having knowledge of the situation created, would have approved such a deviation. Until the deviation from the instructions of the principal, the agent is obliged to notify him of the new circumstances and await his decision, except in the case where the postponement poses a danger to the performance.
(3) The agent is required to warn the principal in one of the following cases:
a) if the indication makes the performance of the obligations arising from the contract significantly more costly or take significantly longer than initially agreed;
b) if the indication contradicts the purpose of the contract or otherwise harms the interests of the principal.
(4) If the principal does not revoke the indication without undue delay after being warned by the agent, the indication shall be considered an amendment to the agency contract pursuant to art. 1489
Article 1486. Request to give an indication
(1) The agent is required to request an indication upon receipt of information that requires the principal to take a decision regarding the performance of the obligations arising from the contract or regarding the content of the juridical act.
(2) The agent is required to request an indication if the mandate consists of concluding a juridical act, and the contract does not provide whether the juridical act is to be concluded in the name of the principal or in the name of the agent, but on the principal’s account.
Article 1487. Consequences of failure to receive the indication
(1) If the principal does not give the necessary indication according to the contract or according to art. 1486 paragraph (1), the agent may, as the case may be:
a) to resort to the creditor’s legal means of defense in case of non-performance of obligations;
b) to perform its obligations based on the expectations, preferences and priorities that the principal would reasonably have had, taking into account the information and indications accumulated.
(2) In the case provided for in paragraph (1) letter b), the agent is entitled to a proportional adjustment of the remuneration and the time granted or necessary for the conclusion of the juridical act.
(3) If the principal does not give an indication required under art. 1486 paragraph (2), the agent has the right to choose either one of the options provided for in art. 1486 paragraph (2), or to suspend the performance of the obligations under the law.
(4) The adjusted remuneration provided for in paragraph (2) must be reasonable and be determined using the same calculation methods as those used to establish the initial remuneration for the performance of the obligations arising from the contract.
Article 1488. Lack of time to ask or wait
an indication
(1) If he is required to request an indication pursuant to art. 1486, but must act before being able to contact the principal to request an indication or before receiving the indication, the agent may perform his obligations on the basis of the expectations, preferences and priorities that the principal would reasonably have had, taking into account the information and indications accumulated.
(2) In the case provided for in paragraph (1), the agent is entitled to a proportional adjustment of the remuneration and of the time granted or necessary for the performance of the obligations arising from the contract to the extent that this adjustment is reasonable, taking into account the circumstances of the case.
Article 1489. Amendments to the mandate contract
(1) The mandate contract is considered amended:
a) if the principal significantly modifies the mandate of the agent;
b) if the principal does not revoke an indication without undue delay after being warned in accordance with the provisions of art. 1485 paragraph (3).
(2) In the event of a modification of the mandate contract pursuant to paragraph (1), the mandate holder has the right, at his/her choice:
a) to a proportional adjustment of the remuneration and the time granted or necessary for the performance of the obligations arising from the contract;
b) to compensation, according to art. 19, to put the agent in the situation he would have been in if the agency contract had not been amended.
(3) In the event of a modification of the mandate contract pursuant to paragraph (1), the agent may also declare the termination of the mandate, unless the modification is minor or is to the advantage of the agent.
(4) The adjusted remuneration provided for in paragraph (2) letter a) must be reasonable and be determined using the same calculation methods as those used to establish the initial remuneration for the performance of the obligations arising from the contract.
Article 1490. Obligation to present information and give
important about the performance of the mandate
(1) The agent is obliged:
a) to transmit to the principal, to the extent reasonable under the circumstances, all information about negotiations or other actions with a view to the possible conclusion of the juridical act, as well as about subsequent developments;
b) to provide the clarifications requested by the principal regarding the performance of the mandate;
c) upon performance of the mandate, to promptly inform the principal and to submit a report on the manner in which he has executed his obligations, including the identity of the third party with whom the juridical act was concluded, as well as on the goods transmitted or received and the expenses incurred in the performance of his obligations. This obligation also arises in the event of termination of the mandate contract without the full fulfillment of the mandate.
(2) The agreement on the basis of which the obligations of the agent provided for in paragraph (1) are, for the future, excluded or limited shall be made in writing.
Article 1491. Confidentiality of known information
by trustee
(1) The agent is obliged not to disclose information that becomes known to him in the course of his activity if the principal has a justified interest in keeping it secret and if there is no obligation to disclose it under legal provisions or disclosure is not permitted by the principal.
(2) The obligation to maintain confidentiality shall continue after the termination of the mandate.
Article 1492. The obligation of the trustee to deliver
to the principal the results of the performance
The agent is obliged to return to the principal everything he received for the performance of the mandate and did not use for this purpose, as well as everything he acquired in the performance of his contractual obligations.
Article 1493. Prohibition of using information
or goods for personal interest
(1) The agent has no right to use to his advantage the information he obtains or the goods he receives or which he is obliged to administer in the exercise of the mandate if he does not have the consent of the principal or if the right of use does not result from the law or from the mandate.
(2) In addition to the compensation to which he is liable for the damage caused, the agent, in the case of the use of information or goods without authorization, must pay the principal for the use of the information an amount equivalent to his enrichment due to its use, and in the case of the use of goods, an appropriate rent. If he uses for himself the money that he is required to remit to the principal or to use in his favor, the agent shall owe interest from the time the money is spent.
Article 1494. Protection of the rights of the principal
The property acquired by the agent, in his name but on the account of the principal, in the performance of contractual obligations or which were transmitted to him by the principal for the performance of the mandate are considered, in relation to the agent’s creditors, property of the principal.
Article 1495. Compensation for expenses incurred
by trustee
(1) Expenses incurred by the agent in the performance of contractual obligations and which, depending on the circumstances, he considers necessary must be compensated by the principal. This rule applies even if the contract of agency has terminated without the mandate being fulfilled.
(2) No claim may be made under paragraph (1) where the expenses are to be compensated by remuneration. Expenses which are usually incurred in the performance of obligations of the kind stipulated in the contract or expenses which would have been incurred by the agent in the absence of the contract shall be deemed to be compensated by remuneration if their reimbursement is not usually made and unless otherwise agreed.
(3) At the request of the agent, the principal is obliged to pay him an advance for the expenses necessary for the performance of the mandate.
Article 1496. Compensation for damage caused to the trustee
(1) The principal is also obliged to repair the damage caused through no fault of his that the agent suffered in the performance of the mandate if the damage is the result of a danger related to the contractual obligation or occurred following the performance of an instruction of the principal.
(2) A claim under paragraph (1) may not be made where damage of the kind suffered is to be covered by remuneration or where the damage was actually caused by an action which was not necessary for the performance of the agent’s contractual obligations or by an omission on his part. If the coverage of the damage by remuneration is contested, the burden of proof shall be on the agent.
Article 1497. Solidarity of principals
When several persons, for a common business, have appointed a representative, each of them is jointly and severally liable for all the effects of the mandate.
Article 1498. Liability of the trustee in the event of
free mandate
If he fulfills the mandate free of charge, the agent will only be liable for his intentional acts or for gross negligence.
Article 1499. Resolution and revocation of the mandate
(1) Either party may declare the termination of the mandate at any time and without giving reasons. The revocation of the mandate is equivalent to the termination of the mandate.
(2) The revocation of the mandate notified only to the agent cannot be opposed to third parties who, without knowing about the revocation, contracted in good faith with the agent. In this case, the principal has a right of recourse against the agent.
(3) The agent may revoke the mandate only in such a way that it is possible for the principal to continue to take care of the documents on which he contracted, unless there is a valid reason for revoking.
(4) If the principal has revoked the mandate under this Article, he shall be liable to the agent for all expenses incurred in the performance of the contract. If the mandate is for a fee, the principal shall pay the agent the agreed remuneration.
(5) Any clause that excludes or limits the right of a party to terminate the mandate is void unless the law provides otherwise.
Article 1500. Death or the institution of a measure
of judicial protection regarding
principal
(1) Contractual relationships do not terminate upon the death or the establishment of a judicial protection measure with respect to the principal unless otherwise agreed or unless otherwise resulting from the content of the contractual obligation.
(2) If the contractual relationship is terminated by the death or the institution of a judicial protection measure in respect of the principal, the agent must continue the performance of the contractual obligations if the postponement would be connected with the danger of losses for the principal or his successors. The performance of the mandate continues until the successor or legal representative of the principal can take all necessary measures. The contractual relationship is considered valid in this respect.
(3) If the contractual relations terminate by the death or by the establishment of a judicial protection measure with respect to the principal, the contract shall be considered valid towards the agent until the moment when the latter becomes aware or should have become aware of the reason for the termination.
Article 1501. Termination of contractual relations
by the death of the trustee
(1) Contractual relationships shall terminate upon the death of the agent unless otherwise agreed or unless otherwise provided for by the contractual obligation.
(2) The heir of the agent must promptly inform the principal of the agent’s death and take the necessary measures to protect the principal’s rights.
Article 1502. Termination of the mandate relationship in the event of
of plurality of agents
In the absence of a contrary agreement, the mandate given to several agents obliged to conclude acts together shall terminate even when the cause of termination concerns only one of them.
Chapter XIV
TRUST ADMINISTRATION
Article 1503. Fiduciary management contract
(1) Through the fiduciary administration contract, one party (founder of the administration, fiduciary) hands over property in fiduciary administration to the other party (fiduciary administrator), and the latter undertakes to administer the property in the interest of the founder of the administration.
(2) The contract may designate a third party as a beneficiary, who may submit his own claims against the trustee.
(3) Public authorities may not exercise the function of fiduciary administrator.
(4) The trustee cannot be a beneficiary.
(5) In cases where the fiduciary administration of the patrimony is established on grounds provided for by law, the rights of the founder of the administration belong to the guardianship authority or another person mentioned in the law.
Article 1504. Form of the management contract
fiduciary
The property fiduciary management contract is concluded in writing.
Article 1505. Object of fiduciary administration
(1) Any property, including a universality of property, both existing at the time of conclusion of the contract and acquired in the future, including property acquired by the trustee in the performance of the contract, may be placed in trust.
(2) The patrimony given in fiduciary administration also includes the goods which, as equivalent or following juridical acts, take the place of the original goods.
(3) Funds may not be placed separately in fiduciary administration, except in cases provided for by law.
(4) The property given into fiduciary administration shall be separated from other property of the founder of the administration, as well as from the property of the fiduciary administrator.
Article 1506. Rights and obligations of the administrator
fiduciary
(1) The fiduciary administrator is obliged to administer the entrusted property in his own name, but at the risk and on the account of the fiduciary.
(2) In relations with third parties, the fiduciary administrator has the prerogatives of an owner. If he fails to exercise the same diligence towards the interests of the fiduciary as he does in his own affairs, the fiduciary is obliged to repair the damage caused thereby.
(3) The trustee is obliged to make public the fact of the separation of the property taken into fiduciary administration from his property and to maintain this publicity. He is liable to the founder of the administration for the disadvantages, losses and damages resulting from the confusion of the two patrimonies.
(4) The fiduciary administrator may dispose of a property only in the cases provided for by law or the fiduciary administration contract.
(5) The rights obtained by the fiduciary administrator as a result of the fiduciary administration activity are included in the composition of the patrimony received under administration if the contract does not provide for the obligation to hand them over to the fiduciary or the beneficiary.
(6) The obligations resulting from the fiduciary’s activity shall be executed from the property under fiduciary administration.
Article 1507. Remuneration, expenses and profits
(1) The fiduciary administrator does not receive remuneration for his activity unless the parties have agreed otherwise or unless this results from the law.
(2) If provided for, the remuneration may be expressed either as a percentage of the income (profit) obtained from the fiduciary administration of the property, or in a fixed sum of money, or in the form of the acquisition of a part of the property administered by the fiduciary in accordance with the fiduciary administration contract.
(3) The expenses of fiduciary administration shall be borne by the founder of the administration unless the law or the contract provides otherwise.
(4) The fruits of the property shall belong to the founder of the administration.
Article 1508. Liability of the trustee
(1) The fiduciary administrator is liable, in relations with third parties, for all acts concluded within the limits of the powers conferred by the fiduciary administration contract. The liability is limited to the property he has received in fiduciary administration.
(2) After the termination of the fiduciary administration and the transfer of the property to the fiduciary, they may continue to be pursued for claims arising in connection with the fiduciary administration.
(3) The property placed in fiduciary administration cannot be pursued to satisfy claims filed against the personal fiduciary administrator.
(4) The founder of the fiduciary administration and the beneficiary are liable for the actions of the fiduciary administrator only when they can be imputed with illicit behavior.
Article 1509. Indication of the capacity of fiduciary administrator
upon conclusion of juridical acts
(1) The trustee must indicate in the legal document that he is acting as a trustee. This condition is considered to be met if:
a) upon conclusion of the juridical act the other party knew or should have known that the juridical act was concluded by the fiduciary administrator in this capacity;
b) in the juridical act concluded in writing, the mention “AF” was inserted after the name or designation of the fiduciary administrator.
(2) In the event that the juridical act does not indicate that the fiduciary administrator acted in this capacity, he shall be personally liable to third parties and shall be liable to them only with his own property.
Article 1510. Application of provisions relating to mandates
The provisions relating to the mandate shall apply accordingly to fiduciary management reports.
Chapter XV
FEE
Article 1511. Commission contract
(1) Through the commission contract, one party (commission agent) undertakes to conclude juridical acts in his own name, but on the account of the other party (principal), and the latter to pay a remuneration (commission).
(2) The juridical act concluded by the commission agent with a third party gives rise to rights and obligations only for the commission agent, even if the principal is appointed or participated in the performance of the juridical act.
(3) The same rights and obligations exist between the principal and the commission agent as between the principal and the agent, with the differences established in this chapter.
Article 1512. Performance of obligations by the commission agent
(1) The commission agent must comply with the instructions received from the principal and execute the obligations he has assumed under the most favorable conditions for the principal.
(2) If the commission agent concludes juridical acts under more advantageous conditions than those stipulated by the principal, the benefits shall be divided equally between him and the principal unless otherwise provided in the contract.
Article 1513. Remuneration of the commission agent
(1) The principal is obliged to grant the commission agent the remuneration established by the contract or by custom.
(2) The commission agent may claim payment of the commission even if the performance of the juridical act concluded by him has not taken place, but this fact is due to the guilt of the principal or is related to his personality.
Article 1514. Deviation from the principal’s instructions
(1) The commission agent is entitled to deviate from the principal’s instructions if the principal’s interests so require or if he is unable to request the principal’s prior approval, or has not received the response in a timely manner.
(2) If he sold the goods at a price lower than that indicated by the principal, the commission agent must cover the difference unless he proves that he could not sell the goods at the indicated price and that by selling at a lower price he avoided greater damage.
(3) If the commission agent purchases a good at a price higher than the indicated one, the principal must declare that he renounces the juridical act concluded by the commission agent as soon as he is notified of the conclusion of the juridical act. Otherwise, he is deemed to have accepted the conditions of the purchase.
(4) If the commission agent declares that he covers the price difference, the principal does not have the right to renounce the juridical act.
Article 1515. The right to the property that is the object
juridical act
The principal has ownership rights over the goods delivered to the commission agent or received by the latter for the principal.
Article 1516. The commission agent’s right of retention
In order to guarantee the claims arising from the commission contract, the commission agent is entitled to retain the goods that he must deliver to the principal or to the persons indicated by him.
Article 1517. Performance of the juridical act concluded by the commission agent
(1) The commission agent must perform all obligations and exercise all rights resulting from the juridical act concluded in his name, but on the account of the principal.
(2) The commission agent is not liable for the non-performance of obligations by a third party, except in the case where he has guaranteed the performance of obligations by the third party to the principal. In exchange for the guarantee, the commission agent is entitled to a special remuneration, called a provision.
(3) If the third party has breached its obligations, the commission agent must immediately inform the principal and gather the necessary evidence. At the principal’s request, the commission agent shall assign to him the rights resulting from the juridical act concluded in the performance of the commission contract.
Article 1518. The commission agent’s obligation to ensure
the principal’s property
The commission agent is obliged to insure the goods received from or for the principal only in cases where this is stipulated in the contract or results from usage.
Article 1519. Reporting by the commissioner
After the performance of the obligations or after the termination of the commission, the commission agent shall hand over everything he received under the contract and submit a report. If there are objections to the report, the principal is obliged to inform the commission agent within 15 days of receiving the report, unless the contract provides for another deadline.
Article 1520. Acceptance of performance by the principal
The principal receives everything that the commission agent has performed under the commission contract, examines the goods, immediately informs the commission agent about defects and releases him from all obligations he has assumed towards the third party in the performance of the commission contract.
Article 1521. Compensation of commission agent’s expenses
(1) The principal is obliged to compensate all useful expenses incurred by the commission agent in the performance of the commission contract.
(2) The expenses for storing the principal’s goods, including those received from third parties, shall be borne by the commission agent unless otherwise provided by law or the contract.
Article 1522. Resolution of the commission on the initiative
principal
(1) The principal has the right to terminate the commission at any time.
(2) In the event of termination of the commission, the principal is obliged to pay the stipulated remuneration to the commission agent for the juridical acts already concluded and to repair the damage caused by the termination.
Article 1523. Resolution of the commission by
broker
Apart from other cases provided for by law, the commission agent has the right to terminate the commission only in the case provided for by the contract, in the event of the inability to perform the obligation assumed or in the event that the principal fails to perform the contractual obligations.
Article 1524. Disposition of the principal’s property
(1) If the principal has declared the termination of the commission or has been notified of the termination by the commission agent, he is obliged to provide, within one month, information regarding the property held by the commission agent.
(2) If the principal does not fulfill the obligation provided for in paragraph (1), the commission agent has the right to deposit the principal’s goods on his account or to sell them at a price most convenient for the principal.
Chapter XVI
expedition
Article 1525. Forwarding contract
(1) Through the forwarding contract, one party (shipper) undertakes, on behalf of and in the name of the other party (client) or in its own name, to organize the transport of goods by concluding a transport contract and completing other necessary documents in order to carry out the transport, and the client undertakes to pay the agreed remuneration (commission).
(2) The forwarding contract shall be concluded in writing. The client shall issue a power of attorney to the forwarder if this is necessary for the performance of the contractual obligations.
(3) The provisions relating to the mandate or, as the case may be, to the commission shall apply accordingly to the reports resulting from the forwarding contract, unless this chapter provides otherwise.
(4) The provisions of this chapter shall also apply if, in accordance with the terms of the transport contract, the obligations of the consignor, within the meaning of paragraph (1), are performed by the carrier.
Article 1526. Diligence of the sender
(1) The sender must organize the transport, in particular in terms of choosing the type of transport and the route, the carrier, conclude the necessary transport, storage and forwarding contracts, provide the necessary information and give the necessary instructions for the performance of these contracts, in each case acting with the care of a diligent sender.
(2) The sender may undertake, through the forwarding contract, to perform other services related to transport, such as guarding and packaging the goods, marking the goods and ensuring customs procedures, including concluding the necessary contracts for this purpose.
(3) The sender concludes contracts in his own name, and if expressly authorized by the client – in the name of the client.
(4) In performing his obligations, the sender must take into account the interests of the client and follow his instructions.
Article 1527. Client’s obligations
(1) The customer is obliged, at the request of the sender, to provide him with timely information on the goods, information for the preparation of transport documents, as well as the fulfillment of customs procedures and other formalities. The customer is obliged to send the sender documents attesting to the accuracy of such information.
(2) In the case of dangerous goods, the customer must draw the sender’s attention to the nature of the danger and the precautionary measures.
(3) Goods of which the sender has not been informed of the danger may be unloaded, destroyed or rendered harmless at any time, anywhere and without payment of any compensation.
(4) If the nature of the goods so requires, the customer is obliged to pack them in such a way that they meet the requirements of transport.
(5) If the goods must be individualized by signs, they must be applied in such a way that they remain legible until delivery.
(6) The customer is liable for damages caused to the sender by failure to comply with the obligations established in this article, except in the case where the sender does not object to the deficiencies or defects of the packaging or of the signs applied according to paragraphs (4) and (5), although these deficiencies or defects were obvious to him and he was aware of them at the time of taking over the goods.
Article 1528. Verification or transportation of property
by the sender
In exchange for a special fee, the customer may request verification of the contents of the packages (cargo units) upon receipt by the sender or may request the goods be transported to the carrier.
Article 1529. Obligation to insure property
The sender is obliged to insure the goods only when he has received an instruction to this effect from the customer. In the absence of a special instruction, the sender is obliged to insure the goods in the usual manner with an insurer of his choice.
Article 1530. Determining the condition of the goods at destination
If the condition of the goods was ascertained in the absence of the parties, then the delivery of the goods to the recipient justifies the presumption that the goods were received without loss or damage, except in the case where the recipient has made objections to the person who made the delivery in which he mentioned the nature of the damage. If the losses or damages can be ascertained from the outside, the objection must be made at the latest at the time of delivery, and if the losses and damages cannot be ascertained from an external examination, the objection must be made at the latest by the 3rd day from the day of delivery.
Article 1531. Application of provisions on transport
If the recipient does not take over the goods at the destination or if the goods cannot be delivered for other reasons, the rights and obligations of the sender are determined according to the rules regarding the transport contract.
Article 1532. The sender’s right to perform
self-propelled transport
(1) The consignor is authorized, unless otherwise agreed, to carry out the transport himself. The authorization exists only to the extent that the obligation to take into account the rights and interests of the customer is fulfilled.
(2) If he makes use of the right specified in paragraph (1), the sender shall at the same time have the rights and obligations of a carrier.
Article 1533. Liability of the sender
(1) The sender is obliged to compensate for the damage caused by the loss of or damage to the goods whose transport he has organised. The provisions of articles 1449, 1455, 1460 and 1461 shall apply accordingly.
(2) The sender is required to repair the damage that does not fall under the provisions of paragraph.
(1) of this article if he has violated the obligations provided for in art. 1526 para. (1) or (2). The sender is not liable if he proves that the damage could not have been avoided even if due diligence had been exercised.
(3) If the customer’s behavior or specific defects of the goods contributed to causing the damage, the obligation to compensate and the amount of compensation depend on the extent to which these circumstances contributed to the damage.
(4) The provisions of art. 1463 apply to claims arising from forwarding contracts.
Article 1534. The client’s right of subrogation
If the sender has undertaken, under the forwarding contract, to conclude the transport contract and to perform other necessary acts in order to carry out the transport in his own name and on behalf of the other party (client), and the third party contracted by the sender has breached its obligations, the client is entitled, by written notification to the sender and the third party, to subrogate the sender’s rights against the third party.
Article 1535. Causing damage by a third party
If the damage is caused by a third party participating in the performance of the contract, the sender is obliged, at the request of the client, to transmit his claims against the third party, except in the case when, based on a special agreement, the sender assumes the recovery of the claim on the account and at the risk of the client.
Article 1536. Payment of remuneration
The remuneration, according to the shipping contract, is due at the moment the sender has handed over the goods to the carrier.
Chapter XVII
DEPOSIT
Section 1
Common provisions
Article 1537. Deposit contract
Through a deposit contract, one party (depositor) undertakes to hand over the movable property to the other party (depositor) for safekeeping, for a fixed or indefinite period, and the depositor undertakes to keep the movable property and return it upon request.
Article 1538. Refusal to deliver or receive property
(1) The depositary shall not have the right to require the depositor to hand over the property. However, the depositor shall be liable for any damage caused to the depositary intentionally or through gross negligence by refusing to hand over the property, unless the law or the contract provides otherwise.
(2) The depository has the right to refuse to accept the goods if they have not been delivered to it within the established deadline, unless otherwise provided in the contract.
Article 1539. Remuneration of the depositary
(1) The deposit is free of charge unless otherwise provided in the contract. If the depositary is a business, it is considered that the remuneration has been tacitly agreed.
(2) If the amount of remuneration due has not been agreed upon, the agreed upon remuneration shall be the tariff remuneration, if there is an established tariff, and in the absence of a tariff, the usual remuneration.
(3) The depositor is obliged to compensate the depositary for the expenses necessary for the safekeeping of the property.
Article 1540. Obligation to preserve property
(1) In the context of a deposit for a consideration, the depositary is obliged to take care of the integrity of the property received with the prudence and diligence of a good business.
(2) If the deposit has a free title, the depositary is obliged to take care of the integrity of the property as if it were his own property.
(3) Acceptance by the depositor of the return of the property does not release the depositary from liability for non-performance of obligations.
Article 1541. Prohibition of requesting proof of quality
by owner
The depositary cannot require the depositor or the person to whom the property must be returned to provide proof of ownership.
Article 1542. Inadmissibility of the transfer of property
for storage by a third party
(1) The depositary does not have the right, without the consent of the depositor, to transfer the received property to a third party for storage.
(2) In the event of the transmission, with the depositor’s permission, of the received property to a third party, the depositary shall continue to be liable only for the choice of the third party and the place of storage.
(3) In all cases, the sub-depositary is liable to the depositor for his act.
Article 1543. Inadmissibility of using the stored property
Unless the contract provides otherwise, the depositary does not have the right to use, without the depositor’s permission, the property delivered to the depository, except when this is necessary for the preservation of the property.
Article 1544. Modification of storage conditions
(1) The depositary has the right to modify, as the case may be, the storage conditions only after notifying the depositor and obtaining his consent. The depositary must also inform the depositor about the confiscation or the exercise of third party rights over the deposited property.
(2) If the modification of the deposit conditions is strictly necessary to eliminate the risk of destruction, loss or damage to the property, the depositary is obliged to modify the method, place and other storage conditions without requesting the depositor’s approval.
(3) The emergence of a real danger of damage or degradation of the deposited property or the emergence of other conditions that threaten the safe storage of the property gives the depositary the right to sell the property at a price determined by the situation created in the event that the depositor cannot take any action.
(4) If the circumstances mentioned in paragraph (3) arose due to certain causes for which the depositary is not liable, he has the right to retain the expenses of selling the property from the price received.
Article 1545. Compensation for damage caused to the depositary
through the characteristics of the good
The depositor is obliged to compensate the depositary for the damage caused to the depositary by the characteristics of the deposited property if he knew or should have known about them. The depositor is not liable for this damage if he notified the depositary of the characteristics of the property or if the depositary knew about them.
Article 1546. Obligation to return
(1) The depositary is obliged to return the property in the condition it was in at the time it was received from the depositor.
(2) If, given the nature of the deposited good or the contract, it cannot reasonably be expected that the deposited good will be returned in the condition in which it was at the time the depositary received it from the depositor, the depositary is obliged to return it in the condition that the depositor could reasonably have expected.
(3) The risk of loss or accidental damage remains with the depositor.
(4) The depositary from whom the deposited property was taken and who received in its place a sum of money or another property must return to the depositor what he received.
(5) The successor of the depositary who sold in good faith the property which he did not know was being deposited is required to refund only the price received or to assign his claim against the buyer if the price was not paid.
Article 1547. The right to collect the deposited property
(1) The depositor has the right to collect the deposited property at any time, even when the contract provides for a storage period.
(2) If the deposit is made in the interest of the depositary, the depositor is obliged to repair the damage caused by the early takeover of the property.
(3) When he has issued a document that proves the deposit or that grants its holder the right to withdraw the deposited property, the depositary may request that that document be returned to him.
Article 1548. Obligation to collect the deposited property
(1) The depositary may at any time request the depositor to collect the deposited property if the contract does not establish a storage term.
(2) The depositary may exercise the right specified in paragraph (1) only in such a way that the depositor can deposit the property elsewhere, except in cases where there are good reasons to demand immediate collection.
(3) If the depositor does not collect the deposited property upon expiry of the storage period or upon the depositary’s request as provided for in paragraph (1) of this article, then the depositary has the right to sell the deposited property in accordance with art. 887, provided that the depositary has given the depositor a reasonable notice indicating the intention to proceed with the sale.
Article 1549. Obligation to provide information after storage
After the termination of the deposit, the depositary is required to inform the depositor about:
a) any damage that the goods suffered during storage;
b) the necessary precautions that the depositor must take before using or transporting the property, unless the depositor can reasonably be expected to know about the need for such precautions.
Article 1550. Place of return of the deposited property
The deposited property shall be returned to the place where it was delivered to the depositary unless the parties have agreed otherwise.
Article 1551. Obligation to remit the fruits of the property
STORED
(1) The depositary is obliged to remit the fruits of the deposited property, collected during the storage period. He shall be liable for failure to perform this obligation only in case of intent or gross negligence.
(2) The depositor is obliged to compensate for the necessary expenses for collecting and storing the fruits.
(3) The depositary is obliged to pay interest on the deposited money only from the day on which it was put in default regarding the return of the money.
Article 1552. Restitution costs
(1) If the deposit has a free title, the costs of restitution shall be borne by the depositor.
(2) If the deposit has a pecuniary title, the costs of the return shall be borne by the depositary.
Article 1553. Liability of the depositary in the event of
violation of the deadline for collecting the goods
If a deadline has been set for the collection of the goods, upon its expiration the depositor is liable only for the damage caused intentionally or through gross negligence.
Article 1554. Obligation to pay remuneration
If the deposit has a pecuniary title, the depositor undertakes to pay the remuneration upon termination of the deposit unless otherwise provided in the contract.
Article 1555. Right of retention of deposited goods
The depositary has the right to retain the deposited property beyond the term provided for in the contract until the moment of its remuneration and compensation for storage expenses.
Article 1556. Storage of specified goods
by gender characteristics
If generically determined goods have been delivered to the warehouse, the goods pass, in the absence of a contrary agreement, into the ownership of the depositary. In such a case, the depositary undertakes to return to the depositor an equal quantity of goods or a quantity stipulated by the parties, of the same kind and quality.
Section 2
Hotel warehouse
Article 1557. Liability for goods brought into the hotel
(1) The person providing accommodation services (hotelier) is liable, according to the rules on depositor liability, for the damage caused by the theft, destruction or damage to the goods brought by the customer to the hotel.
(2) The following are considered to have been brought into the hotel:
a) the client’s belongings located in the hotel during their stay;
b) the client’s belongings located outside the hotel for which the hotelier, a member of his family or a representative of the hotelier assumes the obligation of supervision during the client’s accommodation;
c) the client’s belongings located in or outside the hotel for which the hotelier, a member of his family or a representative of the hotelier assumes the obligation of supervision for a reasonable period of time, before or after the client’s accommodation.
(3) The hotelier is also liable for the customers’ vehicles left in the hotel’s garage or parking lot, as well as for the goods that are usually found therein.
(4) In the absence of a contrary clause, the provisions of this section do not apply to pets.
(5) Any clause contrary to the provisions of this section to the detriment of the customer is null and void.
Article 1558. Limited liability
The hotelier’s liability is limited to a value one hundred times greater than the daily price owed by the client for the room offered for rent.
Article 1559. Unlimited liability
The hotelier’s liability is unlimited:
a) if the damage is caused by the fault of the hotelier or a person for whom he is responsible;
b) if the goods were entrusted to the hotelier for safekeeping;
c) if the hotelier refused to accept in storage the client’s goods which, according to the law, he was obliged to receive.
Article 1560. Lack of liability
The hotelier is not liable when the theft, destruction or damage to the customer’s property is caused by:
a) by the client, by the person accompanying him or under his supervision or by his visitors;
b) an impediment beyond the hotelier’s control;
c) the nature of the good.
Article 1561. Obligations of the hotelier
(1) The hotelier is obliged to receive in deposit documents, money or other valuables belonging to his customers.
(2) The hotelier may not refuse the deposit of these goods unless, taking into account the size and operating conditions of the hotel, they are excessively valuable or inconvenient or dangerous.
(3) The hotelier may examine the goods handed over to him for storage and request their storage in a closed or sealed place.
Article 1562. Making the house available to customers
of values
A hotelier who makes a safe deposit box available to his customers in the hotel rooms is not presumed to have received in deposit the goods that his customers will deposit in the safe deposit box. In this case, the provisions of art. 1558 are applicable.
Article 1563. Forfeiture of the right to reparation
injury
(1) The client is deprived of the right to compensation for the damage suffered through the theft, destruction or damage of the goods that he brought himself or that were brought for him to the hotel if:
a) within 24 hours of becoming aware of the damage, he did not notify the hotel administration;
b) did not exercise the right to action for compensation for the damage within 6 months from the date of its occurrence.
(2) The provisions of paragraph (1) of this article are not applicable to the goods provided for in art. 1559 letters b) and c).
Article 1564. Right of retention
In the event of non-payment by the customer of the room price and other hotel services provided, the hotelier has a right of retention on the goods brought by the customer, with the exception of documents and personal effects without commercial value.
Article 1565. Realization of property
The hotelier may request the recovery of the goods over which he has exercised his right of retention, according to the legal provisions regarding the forced pursuit of movable goods.
Article 1566. Premises assimilated to hotels
The provisions of this section shall also apply accordingly to goods brought into sanatoriums, hospitals, boarding houses, sleeping cars, restaurants, theatres, libraries, sports halls and the like.
Section 3
Conventional seizure
Article 1567. Conventional seizure
Conventional seizure is the deposit under which individuals remit a disputed movable or immovable property to a third party, who undertakes to return it, after the end of the process, to the person who has the right to it.
Article 1568. Choice of depositary in the case of
conventional seizure
(1) The depositary in charge of sequestration shall be chosen by the parties by mutual agreement. The parties may designate one of them.
(2) If they do not reach an agreement regarding the depositary or the conditions of the seizure, the parties may request the court to decide.
Article 1569. Rights of the appointed depositary
with conventional seizure
(1) The depositary charged with conventional seizure has no right to make any expenses or other acts regarding the property, except for those of conservation, in the absence of a contrary stipulation or authorization of the court.
(2) If the nature of the property so requires, the depositary entrusted with conventional seizure is required to perform administrative acts, the rules on the matter of the mandate being applicable accordingly.
(3) The depositary may, however, with or without the consent of the parties, with the authorization of the court, sell the goods whose storage involves expenses disproportionate to their value. The amount received from the sale of the goods shall remain with the depositary under the conditions of the seizure.
Article 1570. Termination of conventional seizure
(1) The seizure ends after the dispute is resolved by returning the property to the entitled party.
(2) The depositary may not, before the settlement of the dispute, be released and return the property except with the consent of all parties or, in the absence of consent, if there is a valid reason, by authorization of the court.
Article 1571. Reporting
The depositary charged with sequestration must make a report at the end of the deposit or during it, at the request of the parties or the court.
Article 1572. Scope of application
(1) Seizure may also be instituted by the court. In this case, it shall be subject to the rules established by the Code of Civil Procedure, as well as by this chapter, to the extent that they are not incompatible.
(2) The provisions of this chapter shall apply, in addition, if the parties to the judicial or arbitral dispute authorize a third party to hold the amounts of money as a fiduciary in an escrow account under the terms of the escrow account contract.
(3) The provisions of this chapter shall not apply if the parties, at a time when they are not in judicial or arbitral litigation, authorize a third party to hold the amounts of money as a fiduciary in an escrow account under the terms of the escrow account agreement.
Chapter XVIII
warehousing
Article 1573. Rules applicable to storage relationships
The provisions relating to warehousing shall apply accordingly to warehousing reports, which are contracts for the delivery of goods for storage at a warehouse, unless otherwise provided for in this chapter.
Article 1574. Duty of diligence of the storekeeper
The warehouseman must ensure the storage and preservation of the goods taken over with the diligence of a good business.
Article 1575. Determining the quantity and type of goods
(1) The warehouseman is not obliged, unless the law or the contract provides otherwise, to ascertain upon taking over the goods their quantity (number, measure or weight), type, kind or other characteristics.
(2) If the goods delivered for storage are in a state of depreciation or deterioration that can be seen from the outside upon delivery, the warehouseman must retain the rights to compensation against the carrier, take care of the proof of this condition of the stored goods and notify the depositor without delay. In case of omission, he is obliged to repair the damage caused thereby.
Article 1576. Right to inspect property
The warehousekeeper is obliged to allow, during working hours, the depositor or another authorized person to take samples, inspect the stored goods and adopt the necessary measures for their preservation.
Article 1577. Obligation to inform
If the storage location changes, if there are changes in the characteristics of the goods or if such changes are about to occur, the warehousekeeper is obliged to immediately announce this fact. The announcement will be made to the last holder, known to the warehousekeeper, of the storage receipt. In case of omission, the warehousekeeper is obliged to repair the damage caused thereby.
Article 1578. Liability of the storekeeper
The warehouseman is liable for the destruction, loss or damage of the goods in his custody if the destruction, loss or damage did not occur as a result of circumstances that could not have been avoided through the care of a business warehouseman.
Article 1579. Storage of specified goods
by gender characteristics
(1) In the case of storing generically determined goods, the storekeeper is entitled to mix them with goods of the same kind only if expressly permitted.
(2) With respect to the total stock resulting from the mixing, the owners of the mixed goods are co-owners on a share basis. The share is determined, unless otherwise agreed, based on the quantity of goods stored.
(3) The warehousekeeper has the right and obligation to deliver to each depositor, from the total stock, the part due to him, without the consent of the other depositors.
Article 1580. Sale, in case of deterioration, of the good
stockpile
(1) If the stored good is exposed to degradation or if changes occur that imply a danger of depreciation and there is no more time to prevent or eliminate the degradation or depreciation or the entitled party, having been informed, has not decided in due time, the storekeeper may organize the sale of the good at auction.
(2) The amount obtained from the sale according to paragraph (1) is returned to the depositor after the storage and sale expenses have been deducted.
Article 1581. Storage receipt
Upon receipt of the goods, the warehouseman is required to issue a warehouse receipt.
Article 1582. Contents of the storage receipt
(1) The storage receipt must contain:
a) date of preparation and number of entry in the storage register;
b) the name or designation and address of the person whose goods are being stored;
c) storage place
d) storage rules;
e) the quantity (number, measure or weight) of the goods stored and the quality, and in the case of packaged goods, the description of the packaging;
f) storage costs, other costs that may arise;
g) whether the stored goods must be insured or not and, where applicable, the cost of insurance;
h) the storage period and its expiry date or the absence of a period;
i) other dates, at the choice of the parties;
j) the storekeeper’s signature.
(2) The lack of data cannot invalidate the storage receipt.
Article 1583. Right of lien on stored property
The holder of the storage receipt may encumber the stored property as collateral for another claim if the property remains in storage.
Article 1584. Endorsement of the storage receipt
If the warehouseman has drawn up a warehouse receipt on order, it can be transmitted to a third party by endorsement.
Article 1585. Liability of the storekeeper in the event of
endorsement
(1) If the storage receipt was transmitted by endorsement, the warehouseman is liable to the legitimate possessor of the receipt for the accuracy of the data entered therein unless it was recorded by an entry on the receipt that these data are based exclusively on the communications of the depositor or a third party.
(2) If the storekeeper knew of the inaccuracy of the data, he shall also be liable when he entered in the receipt a note of the type mentioned in paragraph (1).
(3) In the case of a collection warehouse, the warehouseman is not entitled to enter in the receipt entries of the type mentioned in paragraph (1).
Article 1586. Delivery of goods in case of receipt
on order
(1) In the case of drawing up a storage receipt on demand, the warehouseman is obliged to deliver the stored goods only to the legitimate holder of the receipt and only in exchange for the receipt.
(2) If a receipt has been drawn up constituting a pledge on the stored goods, the storekeeper must also request the return of this receipt.
(3) The warehouseman is not obliged to verify the authenticity of the endorsements. Delivery is certified by an entry on the storage receipt.
Article 1587. Destruction or loss of receipt
storage
(1) If the storage receipt is destroyed or otherwise lost, the entitled party may request, through the public notice procedure, its declaration of nullity and the drawing up of a new receipt. In this case, the special provisions of the Code of Civil Procedure shall apply.
(2) Based on a court decision, the warehouseman shall draw up a second storage receipt and a second storage pledge receipt, as the case may be.
Article 1588. Remission of pledge on property
stockpile
(1) If the owner establishes a lien on the stored goods, the endorsement and submission of the storage lien receipt shall take the place of submission of the lien.
(2) The endorsement must indicate the pledgee and the amount of the claim.
(3) The warehouseman must be notified of the pledge. He must record that the pledge has taken place.
Article 1589. The storekeeper’s right of pledge
(1) With regard to storage costs, the warehouseman has a right of lien on the goods as long as they are in his possession.
(2) If the storage receipt was transmitted by endorsement, the right of pledge shall exist only against the legitimate possessor of the storage receipt.
Article 1590. The storekeeper’s right to demand the removal
the stored good
(1) The warehouseman may not request the collection of the stored goods before the expiry of the agreed term for storage, and if no such term has been agreed upon, before the expiry of 3 months from storage.
(2) If no storage term has been agreed upon or if the storer keeps the goods after the term has expired, the storekeeper may request the collection of the goods only following termination with a notice period of one month.
Article 1591. Sale of property at auction
(1) If the depositor does not collect the stored goods upon expiry of the storage period, the storekeeper has the right, following a summons, to sell the goods at auction. This may not take place before the expiry of one month from the summons.
(2) After the warehouseman’s claims arising from the storage and the organization of the auction have been satisfied from the amount obtained from the sale, the remainder shall be handed over by the warehouseman to the legitimate possessor of the storage receipt.
Chapter XIX
TRAVEL SERVICE PACKAGES
AND HOLIDAY PRODUCTS
Section 1
Travel packages, services
associated travel and their intermediation
Article 1592. Contract for the package of services
travel
(1) By means of a package travel contract, a business (organizer) undertakes to offer the other party (traveler) a package travel service, and the traveler undertakes to pay the organizer the agreed price of the package.
(2) A package travel service (package) is a combination of at least two different types of travel services intended for the same trip or holiday. A package travel service also exists:
a) if the travel services provided for in the contract have been combined at the request of the traveller or in accordance with his selection; or
b) if the organizer grants by contract the traveler the right to choose, after the conclusion of the contract, from a selection of different types of travel services offered by the organizer.
(3) For the purposes of this section, travel service means:
a) passenger transport;
b) accommodation which is not an intrinsic part of passenger transport and which is provided for purposes other than residential purposes;
c) rental of cars, other motor vehicles or motorcycles requiring a category A driving license;
c 1 ) medical insurance for travel abroad;
c 2 ) consultancy/assistance service during the stay abroad;
d) any other tourist service that is not an intrinsic part of a travel service within the meaning of letter a), b) or c).
(4) Services which are in fact the subject of other travel services shall not be considered travel services within the meaning of paragraph (3).
(5) A combination of travel services in which one of the travel services referred to in paragraph (3) letters a)–c 2 ) is combined with one or more tourist services referred to in paragraph (3) letter d) shall not be considered a package if the latter tourist services:
a) do not represent a significant proportion of the value of the combination, are not presented as being an essential feature of the combination and do not otherwise represent such a feature; or
b) are selected and purchased only after the start of the provision of a travel service referred to in paragraph (3) letter a), b) or c).
(6) The tourist service referred to in paragraph (5) letter a) does not represent a significant proportion of the value of the combination if its value is attributed to less than 25% of the value of the combination.
(7) The provisions of this section do not apply to contracts concerning:
a) packages and associated travel services lasting less than 24 hours, except where they include overnight accommodation;
b) packages offered and associated travel services provided occasionally on a non-profit basis and only to a limited group of travelers;
c) packages and associated travel services purchased under a framework contract for the organization of a business trip, concluded between businesss.
Article 1593. Delimitation of intermediation
(1) Without prejudice to the provisions of Articles 1613 and 1614, the general provisions on intermediation shall apply to the intermediation of package travel services. However, a trader may not rely on his statement or the clause that he only mediates contracts between the traveller and persons who will provide all or some of the individual travel services (service providers) if the traveller is offered a combination of at least two different types of travel services intended for the same trip and one of the following conditions is met:
a) the traveler selects the services from a single distribution point of the business within the same booking process and the respective services are selected before the payment is accepted by the traveler;
b) the business offers, promises or invoices the travel services at a flat-rate or total price; or
c) the business promotes or offers travel services under the name “package”, “combined offer”, “flat rate (all-inclusive)” or “all-in services” or under a similar name.
(2) In the cases provided for in paragraph (1), the business shall be considered as the organiser. For the purposes of paragraph (1), the booking process shall not be considered to have begun if the traveller is merely consulted on his travel needs and is merely informed of the travel offers.
(3) For the purposes of this section, distribution points are:
a) mobile or immovable commercial premises;
b) e-commerce websites and similar online sales platforms; or
c) telephone services.
(4) In the case of several similar websites and online sales platforms according to paragraph (3) letter b), if they are presented to travelers in the form of a single platform, they shall be considered a distribution point.
Article 1594. Associated online booking processes
(1) The business who has concluded a contract regarding the package travel services with a traveler through an online booking process or who has mediated such a contract through the same means is considered the organizer of the trip if the following conditions are cumulatively met:
a) the business mediates for the traveler, for the purpose of the same trip or holiday, a contract regarding another type of travel service, providing access to the online booking process of another business;
b) the business transmits the traveler’s name, payment details and the traveler’s email address to the other business;
c) the contract is concluded with the other business no later than 24 hours after confirmation of the conclusion of the contract regarding the first travel service.
(2) If the contract for another type of travel service or several contracts for at least one other type of travel service are concluded in accordance with the provisions of paragraph (1) of this article, all contracts concluded by the traveller shall be considered a single contract for the package travel services within the meaning of art. 1592 paragraph (1), with the exceptions provided for in art. 1592 paragraph (5).
Article 1595. Pre-contractual information
(1) Before the traveller accepts a contract or any corresponding offer, the organiser and, where applicable, the package intermediary shall provide the traveller with the standard information by means of the form provided for in Part A or B of Annex No. 8 to Law No. 1125/2002 implementing the Civil Code of the Republic of Moldova, as well as the following information, if applicable to the package:
1) main characteristics of travel services:
a) the destination(s) of the trip, the itinerary and the periods of stay, with the corresponding dates and, if accommodation is included, the number of nights included;
b) the means of transport, their characteristics and categories, the places, dates and times of departure and return, the durations and places of intermediate stops and transport connections. If the exact time has not yet been established, the organiser and, where appropriate, the package intermediary must inform the traveller of the approximate time of departure and return;
c) the location, main characteristics and, where applicable, the tourist category of the accommodation units according to the norms of the country of destination;
d) the table services offered;
e) visits, excursions or other services included in the total agreed price of the package;
f) if it is not clear from the context, the fact that any of the travel services will be provided to the traveller as part of a group and, in that case, to the extent possible, the approximate size of the group;
g) if the traveller’s ability to benefit from other tourist services depends on effective oral communication, the language in which those services will be provided; and
h) whether the trip or holiday is generally adapted for persons with reduced mobility and, at the request of the traveller, precise information on the degree of suitability of the trip or holiday taking into account the needs of the traveller;
2) the trade name and geographical address of the organiser and, where applicable, of the package intermediary, as well as their telephone numbers and, where applicable, e-mail addresses;
3) the total price of the package, including taxes and, where applicable, all commissions, fees and other additional costs or, where these costs cannot reasonably be calculated before the conclusion of the contract, an indication of the type of additional costs that the traveller may be required to bear;
4) the payment arrangements, including any amount or percentage of the price to be paid as an advance and the timetable for payment of the balance or financial guarantees to be paid or provided by the traveller;
5) the minimum number of persons required for the services in the package to be provided and the deadline referred to in art. 1602 para. (7) point 1) before the start of the trip by which cancellation is possible if this number is not met;
6) general information about passport and visa requirements, including approximate visa processing times, and information regarding health formalities in the destination country;
7) information on the traveler’s right to declare the cancellation at any time before the start of the trip, upon payment of an appropriate cancellation fee or, as the case may be, the standardized cancellation fees requested by the organizer, in accordance with the provisions of art. 1602 para. (1)-(3);
8) information on optional or mandatory insurance covering the costs of cancellation by the traveler or the costs of assistance, including return fees, in the event of accident, illness or death.
(2) In the case of contracts for package travel services concluded by telephone, the organiser and, where applicable, the package intermediary must provide the traveller with the standard information provided for in Part B of Annex No. 8 to Law No. 1125/2002 implementing the Civil Code of the Republic of Moldova and the information provided for in paragraph (1) points 1)-8) of this article.
(3) In relation to packages as defined in Article 1594, the organiser and the business to whom the data are transmitted shall ensure that each of them provides, before the traveller concludes a contract or any corresponding offer, the information referred to in points (1) (1) to (8) of this Article, in so far as they are relevant to the travel services they each provide. The organiser shall also provide at the same time the standard information by means of the form set out in Part C of Annex 8 to Law 1125/2002 implementing the Civil Code of the Republic of Moldova.
(4) The information referred to in paragraphs (1)-(3) must be provided in a clear, intelligible and clearly marked manner. If this information is provided in writing, it must be legible.
Article 1596. Mandatory nature of information
pre-contractual and contract conclusion
(1) The information provided to the traveller pursuant to Article 1595(1)(1), points 1), 3), 4), 5) and 7) shall form an integral part of the package travel contract and may not be amended except with the express agreement of the contracting parties. Before the conclusion of the package travel contract, the organiser and, where applicable, the package retailer shall communicate to the traveller any changes to the pre-contractual information in a clear, comprehensible and clearly marked manner.
(2) If the organiser and, where applicable, the package retailer have not fulfilled the information requirements regarding commissions, fees or other additional costs as provided for in art. 1595 para. (1) point 3) before the conclusion of the package travel contract, the traveller shall not bear those commissions, fees or other costs.
Article 1597. Content of the contract and documents
which must be provided before starting
JOURNEY
(1) The language used in package travel contracts shall be plain and intelligible and, in the case of written contracts, the text shall be legible. When concluding the package travel contract or subsequently, without undue delay, the organiser or the package retailer shall provide the traveller with a copy or confirmation of the contract on a durable medium. The traveller shall have the right to request a paper copy where the contract was concluded in the simultaneous physical presence of the parties.
(2) In the case of contracts negotiated away from business premises, the traveller shall be provided with a copy or confirmation of the package travel contract on paper or, if the traveller agrees, on another durable medium.
(3) The contract or confirmation of the contract shall present the entire content of the agreement, which shall include all the information provided for in art. 1595 para. (1) points 1)-8), as well as the following information:
1) the special requirements of the traveler that the organizer has accepted;
2) information that the organizer:
a) is responsible for the proper performance of all travel services included in the contract, in accordance with the provisions of art. 1603; and
b) is obliged to provide assistance if the traveler is in difficulty in accordance with the provisions of art. 1611;
3) the name of the entity responsible for insolvency protection and its contact details, including the geographical address, and, where applicable, the name of the competent authority designated by the State concerned for that purpose and its contact details;
4) the name, address, telephone number, e-mail address and, where applicable, fax number of the organiser’s local representative, of a contact point or of another service which allows the traveller to contact the organiser quickly and communicate effectively with him, to request assistance when in difficulty or to complain about any defect noticed during the performance of the package;
5) information regarding the traveler’s obligation to communicate any defect he or she notices during the performance of the package, in accordance with the provisions of art. 1609;
6) in the case of minors unaccompanied by a parent or another authorized person, who travel on the basis of a contract that includes accommodation, information allowing direct contact with the minor or the person responsible for him/her at the place where the minor is accommodated;
7) information on the available internal complaint resolution procedures and on the alternative dispute resolution mechanisms provided for by law;
8) information regarding the traveler’s right to assign the contract to another traveler in accordance with the provisions of art. 1599.
(4) In the case of packages as defined in Article 1594, the business to whom the data are transmitted must inform the organiser of the conclusion of a contract leading to the creation of a package. The business must provide the organiser with the information necessary to comply with his obligations as organiser. As soon as he is informed of the creation of a package, the organiser must provide the traveller with the information referred to in points (1) to (8) of this Article on a durable medium.
(5) The information referred to in paragraphs (3) and (4) must be provided in a clear, understandable and clearly highlighted manner.
(6) Sufficiently in advance of the start of the journey, the organiser must make available to the traveller all necessary receipts, vouchers and tickets, information on the scheduled time of departure and, where applicable, the deadline for registration, as well as the scheduled times of intermediate stops, transport connections and arrival.
Article 1598. Burden of proof
The burden of proof regarding the fulfillment of the information requirements set out in art. 1595-1597 lies with the business.
Article 1599. Assignment of the contract
(1) The traveller has the right to transfer the contract to a third party who meets all the conditions applicable to the contract, after notifying the organiser within a reasonable period before the start of the journey, on a durable medium. In any case, notice at least 7 days before the start of the journey shall be considered reasonable.
(2) The assignor and the assignee of the contract are jointly and severally liable for the payment of the balance of the package price and all commissions, fees and other additional costs generated by this assignment. The organizer must inform the assignor of the contract of the actual costs of the assignment. These costs may not be unreasonable and may not exceed the costs actually borne by the organizer as a result of the assignment of the contract.
(3) The organizer must provide the assignor with evidence of the additional costs, commissions and other costs generated by the assignment of the contract.
Article 1600. Modification of the contract price
(1) After the conclusion of the package travel contract, prices may be increased only if the contract explicitly reserves this possibility and stipulates the traveller’s right to a price reduction pursuant to paragraph (5). In this case, the contract shall specify how the revised prices are to be calculated. Price increases are only possible as a direct consequence of changes related to:
a) the price of passenger transport resulting from the cost of fuel or other energy sources;
b) the level of taxes or fees applicable to the travel services included in the contract, imposed by third parties not directly involved in the performance of the package, including tourist taxes, landing fees or embarkation or disembarkation fees at ports and airports (airport and air navigation charges); or
c) the relevant exchange rate for the respective package.
(2) If the price increase referred to in paragraph (1) exceeds 8% of the total price of the package, the provisions of art. 1601 shall apply.
(3) Regardless of its value, a price increase shall not produce legal effects unless the organiser sends the traveller a clear and intelligible notification of this increase, accompanied by a justification for that increase and a calculation, on a durable medium, at least 20 days before the start of the journey.
(4) Before the start of the trip, the organizer cannot unilaterally modify other clauses of the
of the package travel contract other than those relating to the price, unless:
a) the organizer reserved this right in the contract;
b) the change is insignificant; and
c) the organizer informs the traveler about the change in a clear, understandable and clearly highlighted manner, on a durable medium.
(5) If the contract provides for the possibility of price increases, the traveller shall be entitled to a price reduction corresponding to a reduction in the costs referred to in paragraph (1) letters a), b) and c) which takes place after the conclusion of the contract and before the start of the journey. If the traveller has paid more than the reduced price, the organiser shall be obliged to refund the difference.
(6) In the event of a price reduction, the organiser shall be entitled to deduct the actual administrative costs from the difference to be refunded to the traveller. At the traveller’s request, the organiser shall provide evidence of the administrative costs in question.
(7) The provisions of this article shall apply with priority over the provisions of art. 1077 relating to clauses on the modification of the contract.
Article 1601. Significant changes in conditions
CONTRACT
(1) If, before the start of the journey, the organiser is forced to significantly modify any of the main characteristics of the travel services referred to in art. 1595 paragraph (1) point 1) or cannot meet the special requirements referred to in art. 1597 paragraph (3) point 1) or proposes to increase the price of the package by more than 8% in accordance with the provisions of art. 1600 paragraph (2), the traveller has the possibility, within a reasonable period specified by the organiser:
a) accept the proposed amendment; or
b) declare the resolution without paying any resolution fee.
After the expiry of the deadline established by the organizer according to paragraph (3), the modification proposed by the organizer is considered accepted by the traveler.
(2) In the event of cancellation, the traveler may accept a substitute package, when it is offered by the organizer, if possible, of equivalent or superior quality.
(3) The organizer must inform the traveler, without undue delay and in a clear, intelligible and clearly marked manner, on a durable medium, of:
a) the proposed changes referred to in paragraph (1) and, where applicable and in accordance with the provisions of paragraph (4), their impact on the price of the package;
b) a reasonable period within which the traveller must inform the organiser of his decision pursuant to paragraph (1);
c) the fact that, if by the expiry of the term referred to in letter b), the traveler does not communicate his decision to the organizer, the proposed changes will be considered accepted by the traveler; and
d) where applicable, the substitution package offered and its price.
(4) If the changes made to the contract regarding the package travel services referred to in paragraph (1) or the substitution package referred to in paragraph (2) result in a decrease in the quality or cost of the package, the traveller is entitled to an appropriate price reduction.
(5) If the traveller declares the cancellation pursuant to paragraph (1) letter b) and does not accept a substitute package, the organiser shall be obliged to refund all payments made by or on behalf of the traveller without undue delay and in any event not later than 14 days from the date of the cancellation. The provisions of Articles 1604, 1608 and 1610 shall apply accordingly.
Article 1602. Resolution before the start of the journey
(1) The traveller has the right to cancel at any time before the start of the journey. If he/she cancels pursuant to the previous paragraph, the traveller may be required to pay the organiser an appropriate and justifiable cancellation fee.
(2) Reasonable standardised termination fees may be provided for in the contract, depending on:
a) the period of time between the moment of declaring the resolution and the beginning of the journey;
b) the costs that the organizer predictably saves;
c) the income that the organizer would have reasonably expected to have obtained from the other use of the travel services.
(3) If the contract does not provide for standardised termination fees, the amount of the termination fee shall correspond to the price of the package less the cost savings and income generated by the alternative use of the travel services. At the traveller’s request, the organiser must provide justification for the amount of the termination fee.
(4) By way of derogation from the provisions of paragraph (1), the traveller has the right to declare the cancellation before the start of the journey without paying any cancellation fee in the event of unavoidable and extraordinary circumstances occurring at the place of destination or in its immediate vicinity and which significantly affect the performance of the package or the transport of passengers to the destination.
(5) For the purposes of this section, unavoidable and extraordinary circumstances shall mean a situation which is beyond the control of the party invoking it and the consequences of which could not have been avoided even if all reasonable measures had been taken.
(6) In the event of termination pursuant to paragraph (4), the traveler is entitled to a full refund of any payment made for the package, but is not entitled to any additional compensation.
(7) The organizer has the right to terminate before the start of the trip if:
1) the number of people registered to participate in the respective package is less than the minimum number established in the contract, and the organizer notifies the traveler of the cancellation within the period established in the contract, but no later than:
a) 20 days before the start of the trip, in the case of trips lasting more than 6 days;
b) 7 days before the start of the trip, in the case of trips lasting between 2 and 6 days;
c) 48 hours before the start of the trip, in the case of trips lasting less than 2 days; or
2) the organizer cannot perform the contractual obligations due to unavoidable and extraordinary circumstances and notifies the traveler of the termination without delay and before the start of the trip.
(8) In the event of termination pursuant to paragraph (7), the organizer is obliged to refund to the traveler all payments made for the package, but is not required to pay additional compensation.
(9) Following the termination, the organiser is obliged to refund to the traveller all payments made for the package and, in the case of termination pursuant to paragraph (1), is entitled to deduct the appropriate termination fee from the amount subject to refund. The organiser must fulfil the refund obligation without undue delay and, in any event, no later than 14 days from the termination.
Article 1603. The rights of the traveler in case of defect
of travel services
(1) The organizer is obliged to ensure the provision of travel services without defects.
(2) Travel services are considered free from defects if they have the agreed characteristics.
(3) If the characteristics have not been agreed upon, the travel services are free from defects:
a) whether they provide the utility deduced from the contract;
b) if the utility cannot be deduced from the contract, if they offer the usual utility and present features that are commonly found in travel services of the same type and that the traveler can expect taking into account the type of travel package.
(4) A defect in travel services is also considered to be the case where travel services are not provided or are provided with a delay that exceeds the duration of a reasonable delay.
(5) If the travel services have a defect, under the terms of this section and the contract, the traveler has the right:
a) to request redress in accordance with art. 1605 paragraph (1);
b) to remedy the defect in accordance with art. 1605 paragraph (2) and to request reimbursement of the necessary expenses;
c) to request redress through the provision of other travel services in accordance with art. 1605 para. (3) and (4);
d) to request reimbursement of the cost of necessary accommodation according to art. 1605 para. (5) and (6);
e) to declare the termination of the travel services contract according to art. 1606;
f) to obtain a reduction in the price of the travel package according to art. 1607;
g) to claim compensation according to art. 1608.
Article 1604. Extinct prescription regarding claims
PASSENGER
The claims of the traveler provided for in art. 1603 paragraph (5) shall be subject to a limitation period within 2 years. The limitation period shall begin to run from the date on which the trip was to end, according to the contract.
Article 1605. The traveler’s right to remedy the defect
(1) If the traveler requests the remedy of defects, the organizer is obliged to remedy them. The organizer may refuse to remedy:
a) if it is impossible; or
b) if it involves disproportionate expenses, taking into account the extent of the defect and the value of the affected travel services.
(2) Without prejudice to the exceptions provided for in paragraph (1)(a) and (b), if the organiser fails to remedy the defect within a reasonable period set by the traveller, the traveller may do so himself and may claim reimbursement of the necessary expenses. It is not necessary for the traveller to specify a period if the organiser refuses to remedy the defect or if immediate remedy is required.
(3) If the organiser refuses to remedy the defect in the travel pursuant to paragraph (1) letter a) or b) or if the defect affects a significant part of the travel services, the organiser is obliged to offer, at no additional cost to the traveller, alternative services suitable for the continuation of the package, as far as possible equivalent or of better quality than those specified in the contract, including where the traveller’s return to the place of departure is not ensured as agreed. If the alternative services proposed result in a package of lower quality than that specified in the contract, the organiser is obliged to grant the traveller an appropriate price reduction. The amount of the appropriate reduction is determined in accordance with art. 1607 paragraph (2).
(4) The traveler may reject the proposed alternative services only if they are not comparable to what was agreed in the contract or the price reduction granted is inadequate.
In this case or if the organizer cannot offer alternative services, the provisions of art. 1606 para. (2) and (3) apply if the traveler does not have the right to termination.
(5) To the extent that it is impossible to ensure the transport of the traveler to the place of departure or another place agreed by the parties (return) due to unavoidable and extraordinary circumstances, the organizer is obliged to bear the cost of the necessary accommodation, as far as possible of equivalent category, for a period not exceeding 3 nights per traveler.
(6) The cost limitation referred to in paragraph (5) shall not apply in the following cases:
1) whether the legal provisions on passenger rights provide for longer periods applicable to the relevant means of transport for the passenger’s return;
2) the traveler belongs to one of the following categories of persons, and the organizer has been informed of their special needs at least 48 hours before the start of the trip:
a) people with reduced mobility and their companions;
b) pregnant women;
c) unaccompanied minors;
d) people who need special medical assistance.
Article 1606. The traveler’s right to termination
for reasons of vice
(1) If the defect substantially affects the performance of the package and the organiser has failed to remedy it within a reasonable period set by the traveller, the traveller has the right to terminate the contract. It is not necessary for the traveller to specify a period if the organiser refuses to remedy the defect or if immediate remedy is required.
(2) If the traveler has declared the termination, the organizer shall retain the price for the travel services already provided and to be provided in accordance with paragraph (3) of this article in order to end the trip. The traveler’s claims based on art. 1603 paragraph (5) letters f) and g) remain unaffected.
The organizer loses the right to the part of the price that refers to the travel services that will no longer be provided. The organizer is obliged to refund the traveler the part of the price to which he lost the right. The right to termination in the event of a defect in the trip cannot be conditioned by the payment of any commission by the traveler.
(3) The organizer is obliged to take the necessary measures in the event of termination and, in particular, if the package includes passenger transport, is obliged to ensure the return of the traveler with transport equivalent to that stipulated in the contract, without unjustified delays and without additional costs for the traveler.
Article 1607. The traveler’s right to a price reduction
(1) The price of travel services shall be reduced for any period during which a defect existed, unless the organizer proves that the defect is attributable to the traveler.
(2) The discount is equal to the difference between the value, at the time of conclusion of the contract, of the travel package without defects and the value, at the same time, of the travel package with the respective defect.
Article 1608. The traveler’s right to compensation
(1) The traveller has the right to receive adequate compensation from the organiser for any damage suffered as a result of a defect, without prejudice to his right to a price reduction or to termination. The compensation shall be granted without undue delay.
(2) The traveler is not entitled to compensation if the organizer proves one of the following circumstances:
a) the defect is attributable to the traveler;
b) the defect is attributable to a third party who is not related to the provision of the travel services included in the contract and is unforeseeable or unavoidable; or
c) the defect is caused by unavoidable and extraordinary circumstances.
(3) If the trip is thwarted or significantly affected, the traveler may also request reasonable compensation for the moral damage suffered by wasting the vacation or holiday.
Article 1609. Notification of defects by the traveler
(1) The traveler must inform the organizer without undue delay, taking into account the circumstances of the case, of any defect he discovers during the performance of a travel service included in the contract.
(2) If the organizer was unable to remedy the defect due to the traveler’s culpable failure to notify in accordance with paragraph (1), the traveler loses the right:
a) to submit the claim provided for in art. 1607;
b) to claim compensation according to art. 1608.
Article 1610. Admission of limitation of liability.
Correlation with other regulations
(1) Based on an agreement with the traveler, the organizer may limit its liability for damages, other than personal injury, to three times the total price of the package if the damage is not caused intentionally or by gross negligence.
(2) If the liability of a provider of a travel service that is part of the package is conditional, limited or excluded according to international conventions, the organizer may invoke this, equally, towards the traveler.
(3) The rights to compensation or price reduction under this Section shall be without prejudice to the rights of passengers under special regulations or international conventions. Passengers shall have the right to submit claims under this Section and under those special regulations or international conventions. Compensation or price reductions granted under this Section and compensation or price reductions granted under those special regulations or international conventions shall be deducted from each other in order to avoid overcompensation.
Article 1611. The organizer’s obligation to grant
assistance
(1) The organizer is obliged to provide adequate assistance without undue delay to the traveler in difficulty, including in the circumstances referred to in art. 1605 paragraph (5), in particular by:
a) providing appropriate information on health services, local authorities and consular assistance; and
b) providing assistance to the traveler in carrying out distance communications and supporting him in finding alternative travel services.
(2) The organiser may charge a reasonable fee for the assistance referred to in paragraph (1) if the traveller has caused the difficulty intentionally or through negligence. In any case, the fee shall not exceed the actual costs incurred by the organiser.
Article 1612. Guarantees against insolvency
(1) Organizers registered in the territory of the Republic of Moldova must provide guarantees for the refund of all payments made by or on behalf of travelers, to the extent that, as a result of the organizer’s insolvency, the relevant services have not been provided or the traveler has paid directly to other providers to whom the organizer has violated its payment obligations. If the contract includes the carriage of passengers, the organizer shall also provide guarantees for the traveler’s return. The continuation of the package may be offered.
(2) Organizers who are not registered in the Republic of Moldova and who contract or offer for contracting packages in the Republic of Moldova or who, by any means, direct their activities to travelers from the Republic of Moldova are obliged to provide the guarantee in accordance with the legislation of the Republic of Moldova.
(3) The guarantee referred to in paragraphs (1) and (2) must be effective and cover the reasonably foreseeable costs. It shall cover the amounts of payments made by or on behalf of travellers in connection with the packages, taking into account the period between the advance payments and the final payments and the completion of the packages, as well as the estimated costs of the return in the event of the organiser’s insolvency.
(4) Travellers shall benefit from protection against the insolvency of the organiser regardless of their place of residence, place of departure or place of conclusion of the package and regardless of the State in which the authority responsible for insolvency protection is situated.
(5) When the performance of the package is affected by the insolvency of the organiser, the guarantee is available free of charge to ensure the return and, if necessary, the payment of the accommodation before the return.
(6) For travel services that have not been performed, the refund of payments shall be made without undue delay at the request of the traveler.
(7) The following shall be established by Government decision:
a) the types of guarantees provided by the organiser, package intermediaries, linked travel service intermediaries and, where appropriate, other service providers;
b) the conditions imposed on the guarantees, including the procedure for the use of guarantees by travelers;
c) the extent to which the traveller may be required to make payments under the contract before the end of the journey if the appropriate guarantee has not been provided;
d) the competent authority, as well as its powers, in the field of supervision of organizers, package intermediaries, linked travel service intermediaries and service providers, of administrative cooperation with authorities from other states, as well as of the protection of travelers in case of insolvency.
Article 1613. Intermediation of contracts regarding
travel service package
(1) A business who mediates the conclusion of contracts regarding package travel services (package intermediary) is obliged to inform the traveller in accordance with Articles 1595, 1596 and 1597.
(2) If the package intermediary has fulfilled its obligations under paragraph (1), the obligations of the organiser under Articles 1595, 1596 and 1597 shall be deemed to have been fulfilled. If the organiser has fulfilled the obligations under Articles 1595, 1596 and 1597, the package intermediary shall be deemed to have fulfilled its obligations under paragraph (1). In any case, the package intermediary shall bear the burden of proving that these information requirements have been met.
(3) A package tour operator shall be deemed to be authorised by an organiser to accept payment of the price of the package if he provides the traveller with a copy or specimen of the contract in accordance with Article 1597(1) and (2) or there are other circumstances created by the organiser from which it follows that the package tour operator is authorised to arrange package travel for him. This rule shall not apply if the traveller is expressly informed that the package tour operator does not accept payments.
(4) If the organiser is not registered in the Republic of Moldova at the time of conclusion of the contract, the package intermediary shall fulfil the organiser’s obligations set out in Articles 1603-1612. The travel intermediary shall bear the burden of proving that the organiser has fulfilled its obligations set out in this section.
(5) The package intermediary is authorised by the organiser to receive any claims or other notifications from the traveller regarding the provision of the travel services. The package intermediary shall immediately notify the organiser of such notifications from the traveller.
Article 1614. Intermediation of travel services
associated
(1) A business shall be considered an intermediary of a linked travel service if, for the purpose of the same trip or holiday, which does not constitute a package travel service:
a) he mediates the conclusion of separate contracts with other travel service providers concerning at least two different types of travel services, during a single visit or contact with his distribution point, and the traveller selects and pays for each of these services separately; or
b) he mediates, in a personalised manner, for the traveller with whom he concludes a travel service contract or mediates the conclusion of such a contract, the purchase of at least one additional travel service from another service provider, where a contract is concluded with this service provider no later than 24 hours after the confirmation of the booking of the first travel service. For the purposes of this point, the trader shall not be considered to have brokered an additional travel service solely because he has put the traveller in touch with the other service provider.
(2) Where a type of travel service referred to in Article 1592(3)(a), (b) or (c) and one or more tourist services referred to in Article 1592(3)(d) are purchased, they shall not constitute a linked travel service if the latter services do not represent a significant part of the combined value of the services and are not presented as an essential feature of the trip or holiday and do not otherwise represent such a feature.
(3) Before the traveler assumes any contract leading to the creation of linked travel arrangements or any corresponding offer, the business who mediates linked travel arrangements, including where the business is not registered in the Republic of Moldova but, by any means, directs such activities to travelers from the Republic of Moldova, must stipulate in a clear, intelligible and prominent manner the following:
a) the traveller shall not benefit from any of the rights that apply exclusively to packages under this section and each service provider shall be solely liable for the proper performance of the contract relating to its services; and
b) the traveler will benefit from insolvency protection in accordance with the provisions of paragraph (5).
(4) In order to comply with the provisions of paragraph (3) of this Article, the business who mediates a linked travel service must provide the traveller with the relevant information by means of the standard form set out in Annex No. 9 to Law No. 1125/2002 implementing the Civil Code of the Republic of Moldova or, if the specific type of linked travel service is not subject to the form set out in that Annex, provide the information included therein.
(5) If the business who arranges linked travel arrangements receives payments from the traveller for services, the business must guarantee their reimbursement to the traveller to the extent that the travel services are provided by the intermediary himself or, if the claim of another service provider within the meaning of paragraph (1) letter a) to receive payment is not yet extinguished, to the extent that, as a result of the organiser’s insolvency, the relevant services have not been provided or the traveller has paid directly to other providers within the meaning of paragraph (1) letter a), to whom the organiser has breached its payment obligations.
(6) If the business who mediates linked travel arrangements has not complied with the requirements set out in paragraphs (3)-(5) of this article, the rights and obligations set out in articles 1599 and 1602-1611 shall apply to him in relation to the travel services included in the linked travel arrangement.
(7) Where a linked travel arrangement is the result of a contract concluded between a traveller and a business who does not mediate the linked travel arrangement, that business must inform the business who mediates the linked travel arrangement of the conclusion of the relevant contract.
(8) If obliged to ensure the transport of the traveler, the intermediary is also obliged to ensure the return of the traveler, as well as accommodation until the return.
Article 1615. Liability for booking errors
The traveler has the right to compensation for damage caused:
a) any technical malfunctions in the booking system of the organiser, the package travel intermediary, the linked travel services intermediary or the travel service provider, unless the malfunction is not attributable to the business concerned;
b) by one of the businesss referred to in letter a), if he has agreed to organize the booking of a package or of travel services that are part of linked travel services, for errors made during the booking process, unless the error is attributable to the traveler or was caused by unavoidable and extraordinary circumstances.
Article 1616. Right of recourse of the business
Where an organiser or a package retailer pays compensation, grants a price reduction or fulfils other obligations towards the traveller under this section, the organiser or the package retailer shall have recourse against the third party who contributed to the event which gave rise to the compensation, price reduction or other obligations towards the traveller.
Article 1617. Exclusion of circumventions and derogations
(1) A statement by an organiser or a business who mediates a linked travel arrangement stating that he acts exclusively as a provider of a travel arrangement, as an intermediary or in any other capacity or that a package or a linked travel arrangement does not constitute a package or a linked travel arrangement shall not exempt that organiser or business from his obligations under this section.
(2) Any clause that derogates from the provisions of this section to the detriment of the traveler is absolutely null and void.
Section 2
Some holiday products and their intermediation
Article 1618. Contract for periodic accommodation
(1) A contract for periodic accommodation is a contract whereby a business undertakes to grant the consumer the right to use a dwelling or other accommodation unit overnight, on a periodic basis, for a period exceeding 12 months, and the consumer undertakes to pay a total price. When assessing whether the period exceeds 12 months, all possibilities for extension provided for in the contract shall be taken into account.
(2) The consumer right referred to in paragraph (1) may take the form of:
a) a share in the common property, with the establishment of the respective mode of use, or a share in the periodic property;
b) a right of usufruct, habitation or other real right;
c) a leasehold right or other claim right;
d) a right resulting from membership in a legal person or civil society.
(3) The consumer’s right may be accompanied by the option to choose the accommodation unit from a group of accommodation units made available by the business.
(4) The consumer’s right referred to in paragraph (1) also extends to movable property according to the destination of the accommodation unit.
Article 1619. Other contracts related to products
holiday and scope
(1) A long-term holiday product contract is a contract for a period exceeding 12 months under which a trader undertakes to grant the consumer the right to receive price reductions or other benefits in relation to accommodation and the consumer undertakes to pay a total price. The contract may also provide for the provision of additional services to the consumer, such as transport services. When assessing whether the period exceeds 12 months, all possibilities for extension provided for in the contract shall be taken into account.
(2) The holiday product intermediation contract is the contract by which a business undertakes to the consumer, in exchange for remuneration, to intermediate:
a) a contract for periodic accommodation or a contract for a long-term holiday product; or
b) a contract regarding the alienation of rights held by the consumer under a contract indicated in letter a).
(3) The contract for the intermediation of participation in an exchange system is the contract by which a business undertakes to the consumer, in exchange for remuneration, to intermediate a contract by which the consumer will participate in an exchange system that allows him access to overnight accommodation units or other services in exchange for granting temporary access to other persons to the advantages that the consumer holds under the contract for periodic accommodation.
(4) The provisions of Articles 1620-1627 shall apply accordingly to the contract for periodic accommodation, the contract for long-term holiday products, the contract for the intermediation of holiday products and the contract for the intermediation of participation in an exchange system, unless the Article provides that it applies only to one or some of these contracts.
(5) Any clause contrary to the provisions of this section to the detriment of the consumer is absolutely null and void.
(6) This section does not affect the legal framework relating to:
a) the remedies provided for in general contract law;
b) registration of immovable or movable property and alienation of immovable property;
c) the conditions of establishment, the authorization regime or the authorization requirements; as well as to
d) determining the legal nature of the rights that are the subject of the contracts regulated by this section.
Article 1620. Advertising
(1) The business is obliged to ensure that his advertising specifies the possibility of obtaining the information referred to in art. 1621 paragraph (1) and indicates where the respective information can be obtained.
(2) If, within the framework of a promotional offer, a promotional event or a commercial event, the consumer is proposed to conclude the contract, the business is obliged to clearly specify, in the invitation, the commercial purpose and the nature of the event.
(3) The information referred to in art. 1621 paragraph (1) must be made available to the consumer at any time during the event.
(4) The rights related to the contract for periodic accommodation and the contract for the long-term holiday product cannot be promoted or marketed as an investment.
Article 1621. Pre-contractual information
(1) The business is obliged to provide the consumer with the following information:
a) in the case of a contract for periodic accommodation – according to the standard form provided for in Annex No. 1 to Law No. 1125-XV of June 13, 2002 on the implementation of the Civil Code of the Republic of Moldova;
b) in the case of a contract regarding a long-term holiday product – according to the standard form provided for in Annex No. 2 to Law No. 1125-XV of June 13, 2002 on the implementation of the Civil Code of the Republic of Moldova;
c) in the case of the holiday product intermediation contract – according to the standard form provided for in Annex No. 3 to Law No. 1125-XV of June 13, 2002 on the implementation of the Civil Code of the Republic of Moldova;
d) in the case of a contract for the intermediation of participation in an exchange system – according to the standard form provided for in Annex No. 4 to Law No. 1125-XV of June 13, 2002 on the implementation of the Civil Code of the Republic of Moldova.
(2) The business is obliged to complete the standard forms referred to in paragraph (1) with sufficient and precise information, so as not to mislead the consumer and to allow the consumer to make a fully informed decision.
(3) The business must provide the consumer with all the information provided for in paragraph (1):
a) free of charge;
b) in a clear and easy to understand manner;
c) on paper or on another durable medium, easily accessible to the consumer;
d) sufficiently in advance of a consumer concluding a contract or accepting an offer, but at least 15 calendar days in advance.
(4) The 15-day period provided for in paragraph (3) letter d) may be reduced with the written consent of the consumer.
Article 1622. Information about the right of revocation
and about the prohibition of advance payments,
confirmation of information
(1) Before concluding the contract, the business must explicitly inform the consumer about the existence of the right to withdraw from the contract, according to art. 1066, the term for withdrawing from the contract, according to art. 1067, and about the prohibition of advance payments during the withdrawal period, according to art. 1625.
(2) The consumer must confirm receipt of the contractual information provided for in paragraph (1) by signing the corresponding boxes in Part 2 of the standard form provided for in Annexes No. 1-4 to Law No. 1125-XV of June 13, 2002 on the implementation of the Civil Code of the Republic of Moldova.
Article 1623. Language of the contract and information provided
(1) The contract shall be drawn up in Romanian.
(2) If the consumer is a foreign citizen and resides abroad, the contract shall be drawn up in Romanian or in one of the languages of international circulation.
(3) The language requirements set out in paragraphs (1) and (2) shall also apply to the information that the business is required to provide pursuant to Articles 1621 and 1622.
(4) In the case of a contract regarding periodic accommodation which has as its object a single specific immovable property, the business is obliged to provide the consumer, free of charge, with an authorized translation of the contract in Romanian or in one of the languages of international circulation.
Article 1624. Form and clauses of the contract
(1) The contract shall be concluded in writing, on paper or on another durable medium accepted by the consumer, and shall be drawn up in a visible and legible manner. The background colour of the paper on which the contract is drawn up shall contrast with that of the font used.
(2) If the law requires authentic form for the establishment or transfer of the right granted by the contract regarding periodic accommodation, the contract must be concluded in authentic form. The legal provisions regarding the real estate register remain applicable.
(3) The contract must provide for the following:
a) information regarding the name, surname, domicile or residence of the natural person business and, respectively, information regarding the name, headquarters and legal form of organization of the legal person business, as well as the addresses for notification;
b) the information contained in the corresponding standard form, referred to in art. 1621;
c) date and place of conclusion of the contract.
(4) The information contained in the standard forms referred to in art. 1621 may only be modified with the written agreement of the parties or if the modifications arise from certain unusual and unforeseen circumstances, independent of the will of the business, and the consequences of which could not have been avoided, even if all necessary measures had been taken.
(5) Any modification shall be communicated to the consumer, on paper or on another durable medium easily accessible to him and accepted by him, before the conclusion of the contract. The modifications shall be expressly mentioned in the contract.
(6) At the time of conclusion of the contract, the consumer shall receive at least one copy thereof. The standard form on the right of revocation, provided for in Annex No. 5 to Law No. 1125-XV of June 13, 2002 on the implementation of the Civil Code of the Republic of Moldova, must be attached to the contract.
Article 1625. Prohibition of advance payments
(1) Any advance payments, granting of guarantees, reserving money through accounts, explicit recognition of debts, as well as any other payments made by the consumer to the business or to any other third party before the end of the contract revocation period are prohibited.
(2) In the case of a holiday product intermediation contract, the prohibition in paragraph (1) shall remain in effect until the business has fulfilled all of his obligations arising from this contract or, as the case may be, until the termination of this contract for another reason.
Article 1626. Special provisions applicable to the contract
regarding periodic accommodation
(1) In the case of a contract for periodic accommodation, payment shall be made according to a fixed payment schedule. Any payments of the price specified in the contract that are not made according to the fixed payment schedule are prohibited. Payments, including the payment of the membership fee, must be made in annual installments, each of which has the same value. The business must send a written request for payment, on paper or another durable medium, at least 14 calendar days before the due date.
(2) The consumer has the right to terminate the contractual relationship regarding periodic accommodation, without any reason, starting from the payment of the second installment, without being liable to any penalty, by notifying the business within 14 calendar days of receiving the payment request for each installment. This right does not affect the right of termination on other legal grounds.
Article 1627. Related contracts
(1) The exercise by the consumer of the right of revocation also has the effect of automatic termination of the contract related to the contract being revoked.
(2) The contract to be revoked shall be considered to be related to the contract by which the consumer obtains goods, works, digital content, services or other benefits related to the contract to be revoked if these benefits are provided:
a) by the same business; or
b) by a third party based on an agreement between that third party and the same business.
(3) The contract to be revoked shall be considered to be linked to the credit contract through which the consumer obtains credit intended exclusively for financing the payment obligations, in whole or in part, resulting from the contract to be revoked if these contracts form, from an objective point of view, a commercial unit.
(4) Contracts shall be deemed to form a commercial unit within the meaning of paragraph (3) if:
a) the business himself is also a creditor;
b) being a person other than the business, the creditor, on the basis of an agreement, uses the services or collaboration of the business for the conclusion of the credit agreement or its preparation; or
c) the credit agreement expressly specifies the object of the agreement to be revoked.
(5) The existence of the agreement between the third party and the business, as provided for in paragraph (2) letter b) and paragraph (4) letter b), shall be presumed until proven otherwise.
(6) If the business is informed by the consumer about the revocation of the contract, the business is obliged to inform the third party with whom the consumer has a contract about the fact that his/her revocation has occurred according to paragraph (1).
(7) For the purposes of paragraph (3), credit agreement shall mean any consumer credit agreement falling within the scope of Law No. 202 of 12 July 2013 on consumer credit agreements.
Chapter XX
GUARANTEE AND OTHER PERSONAL GUARANTEES
Section 1
General provisions
Article 1628. Types of personal guarantees
(1) Personal guarantees may be accessory (surety) or autonomous.
(2) Suretyship is the obligation of the guarantor (the guarantor) assumed for the benefit of a creditor with the purpose of guaranteeing the obligation that the debtor owes to the creditor (the guaranteed obligation) and which arises and becomes due only if the guaranteed obligation arises and becomes due.
(3) An autonomous personal guarantee is considered to be the guarantor’s obligation assumed for the benefit of a creditor, for the purpose of guarantee, which expressly provides or from which it results in an undoubted manner that it does not depend on the obligation that another person owes to the creditor.
Article 1629. Presumption of suretyship
Any undertaking to pay or perform any other service or to indemnify the creditor for the purpose of guaranteeing the obligation owed by another person shall be presumed to be a suretyship, unless the creditor proves that an autonomous personal guarantee has been stipulated.
Article 1630. Plurality of debtors for security purposes
(1) Plurality of debtors for security purposes is the obligation owed by two or more debtors, and one of the debtors assumes the obligation predominantly for security purposes in favor of the creditor.
(2) In the case of multiple debtors for the purpose of guarantee, the provisions of sections 1, 4 and 5 shall apply and, in addition, the legal provisions regarding obligations with multiple subjects.
Article 1631. Letter of comfort
(1) The letter of comfort is that personal guarantee by which the guarantor assumes an obligation to the creditor to do or not to do, in order to support the debtor in fulfilling his obligations towards that creditor.
(2) If the debtor does not fulfill his obligations, the issuer of the comfort letter may only be liable for damages to the creditor and only if the latter proves that the issuer of the comfort letter did not fulfill the obligation assumed by the comfort letter.
(3) It is presumed that a suretyship with subsidiary liability of the issuer has been assumed through the comfort letter.
Article 1632. Application of this chapter to
by certain personal guarantees
(1) The provisions of this Chapter shall not apply to insurance contracts. In the case of insurance to secure the obligations of a debtor, the provisions of this Chapter shall apply only if the insurer has issued a document establishing a personal guarantee in favour of a specific creditor.
(2) The provisions of this chapter do not affect the legal provisions regarding the endorsement and endorsement of negotiable securities, but may apply to personal guarantees for obligations arising from negotiable securities.
Article 1633. Grounds for the emergence of personal guarantees
(1) The personal guarantee may be assumed by the guarantor through a contract concluded with the creditor (surety contract or, as the case may be, autonomous personal guarantee contract).
(2) In the case of a personal guarantee assumed by contract, the creditor is deemed to have accepted the guarantor’s offer to contract the personal guarantee as soon as the offer reaches the creditor, unless the offer calls for express acceptance or the creditor, without undue delay, rejects the offer or reserves time to examine it.
(3) The personal guarantee may be assumed by the guarantor through a unilateral juridical act which expressly provides or from which it results in an undoubted manner that it is irrevocable. Such a guarantee shall be effective without the creditor’s acceptance. The provisions of this chapter shall apply accordingly.
(4) The personal guarantee may be assumed free of charge or in exchange for remuneration.
(5) The personal guarantee may be assumed without the debtor’s knowledge and even against his will.
Article 1634. Form in which personal guarantee is assumed
(1) The contract or unilateral juridical act by which a personal guarantee is assumed must be concluded in writing, under penalty of nullity.
(2) If the guarantor performs on the basis of a guarantee that is not in written form, the defect in form shall be considered removed in relation to what has been performed.
Article 1635. Termination of suretyship by death
The personal guarantee is extinguished by the death of the guarantor. Any contrary clause is struck by absolute nullity.
Section 2
suretyship
Article 1636. Obligation guaranteed by surety
(1) The obligation guaranteed by a suretyship may be present or future, pure and simple or affected by modalities. The obligation of another surety may also be guaranteed by a suretyship.
(2) If the suretyship was assumed before the conclusion of the contract or other juridical act from which the guaranteed obligation results, it shall take effect from the moment of the conclusion of that contract or act.
(3) The suretyship is global if it guarantees all the debtor’s obligations towards the creditor or the obligation to pay the debit balance of an account, without specifying the source of those obligations.
Article 1637. Accessory nature of the obligation
fidejussor
(1) The surety’s obligation arises and becomes due only to the extent that the debtor’s obligation to the creditor arises and becomes due.
(2) The surety’s obligation may not exceed the debtor’s obligation. This rule does not apply if the debtor’s obligation is reduced or extinguished:
a) within the framework of insolvency proceedings;
b) on another legal basis due to the debtor’s inability to execute due to insolvency; or
c) by virtue of the law due to an event affecting the person of the debtor.
(3) The agreement between the creditor and the debtor to accelerate the maturity of the secured obligation or to make the obligation more onerous by modifying the conditions under which its performance is due, or to increase its amount does not affect the surety’s obligation if that agreement was concluded after the time of assuming the suretyship.
(4) The provisions of paragraph (3) do not apply to the global suretyship.
Article 1638. The guarantor’s right to invoke
debtor’s exceptions
(1) In relation to the creditor, the surety may invoke any exception of the debtor with respect to the secured obligation, even if the exception is no longer available to the debtor due to the debtor’s action or inaction that occurred after the suretyship was assumed.
(2) The surety has the right to refuse to perform the guarantee obligation:
a) if, under the law, the debtor has the right to revoke the contract concluded with the creditor and the revocation period has not expired;
b) whether the debtor has the right to suspend the performance of the correlative obligation;
c) whether the debtor has the right to terminate the contractual relationship between the debtor and the creditor for non-performance.
(3) The surety may not invoke the lack of full discernment or the lack of the necessary legal capacity of the debtor, whether a natural person or a legal person, or the non-existence of the debtor, whether a legal person, if these circumstances were known to the surety at the time of assuming the suretyship.
(4) As long as the debtor’s action to declare the relative nullity of the contract or other juridical act from which the guaranteed obligation results on a basis other than that mentioned in paragraph (3) has not become time-barred, even if the debtor has not filed the action, the surety has the right to suspend the performance.
(5) The provisions of paragraph (4) shall apply accordingly if the debtor has the right to extinguish the secured obligation by set-off.
Article 1639. Limits of the guarantee
(1) The guarantee covers, within the limits of its maximum amount, if stipulated, not only the main secured obligation, but also the obligations ancillary to it, which the debtor owes to the creditor, such as interest, default interest, penalties and reasonable expenses of extrajudicial pursuit of the obligations mentioned in this paragraph.
(2) The costs of legal proceedings and enforcement against the debtor shall be covered, provided that the surety has been informed of the creditor’s intention to initiate these proceedings with sufficient notice to allow the surety to avoid these costs.
(3) The comprehensive guarantee only covers obligations resulting from contracts concluded between the debtor and the creditor.
Article 1640. Joint and several obligation of the surety
Unless otherwise stipulated, the obligation of the debtor and the surety is joint and several and, consequently, the creditor may claim joint and several performance from the debtor or, within the limits of the guarantee, from the surety.
Article 1641. Subsidiary obligation of the surety
(1) If so stipulated, the surety may invoke the subsidiary nature of his liability against the creditor (benefit of discussion).
(2) Subject to the provisions of paragraph (3), before requesting performance from the surety, the creditor must make appropriate attempts to obtain performance of the secured obligation from the debtor and, if any, from other persons who have guaranteed the same obligation on the basis of a personal or real guarantee establishing joint and several liability.
(3) The creditor is not required to seek enforcement from the debtor and from another person pursuant to paragraph (2) to the extent that it is manifestly impossible or extremely difficult to obtain enforcement from that person. This exception applies in particular if insolvency proceedings or equivalent proceedings have been opened against that person, unless a security interest granted by that person for the same secured obligation can be exercised.
Article 1642. The creditor’s obligation to notify
(1) The creditor shall be obliged to notify the surety without undue delay of the non-performance of the secured obligation or the debtor’s inability to pay, as well as of the extension of the due date. This notification shall include information on the secured amounts of the principal obligation, interest and other ancillary obligations owed by the debtor at the date of notification. It is not necessary to make an additional notification of a new non-performance before the expiry of a period of 3 months from the previous notification. Notification is not required if the non-performance relates only to the ancillary obligations of the debtor, except in the case where the total amount of all unperformed secured obligations has reached the amount of 5% of the remaining amount of the secured obligation.
(2) In the case of a comprehensive guarantee, the creditor also has the obligation to notify the surety of any agreed increase:
a) when that increase, starting from the date of establishment of the guarantee, reaches 20% of the amount guaranteed on that date; and
b) when the guaranteed amount is increased by 20% compared to the guaranteed amount on the date on which information was or should have been last provided in accordance with this paragraph.
(3) The provisions of paragraphs (1) and (2) shall not apply to the extent that the surety knows or should reasonably have known that information.
(4) If the creditor fails or delays in giving the notification required in this article, the creditor’s rights against the surety shall be reduced to the extent necessary to avoid the latter suffering any prejudice due to the failure or delay.
Article 1643. Deadline for requesting enforcement
(1) If a time limit has been stipulated, directly or indirectly, within which the creditor may request performance on the basis of the suretyship by which the joint and several liability of the surety has been established, the surety shall be released from the suretyship after the expiry of the stipulated time limit. However, the surety shall remain liable if the creditor requested performance from the surety after the maturity of the guaranteed obligation but before the expiry of the time limit of the suretyship.
(2) If a time limit has been stipulated, directly or indirectly, within which the creditor may request performance on the basis of the suretyship by which the subsidiary liability of the surety has been established, the surety shall be released after the expiry of the stipulated time limit. However, the surety shall remain liable if the creditor:
a) after the maturity of the guaranteed obligation, but before the expiry of the deadline, informed the surety of the intention to request the enforcement of the suretyship and of the initiation of appropriate attempts to obtain enforcement in accordance with art. 1641 para. (2) and (3); and
b) inform the guarantor every 6 months about the status of these attempts, if the guarantor requests to be informed.
(3) If the deadline for the suretyship expires on the maturity of the guaranteed obligations or within 14 days of the maturity, the request for enforcement or the information provided for in paragraphs (1) and (2) may be given earlier than the deadline provided for in paragraphs (1) and (2), but not earlier than 14 days before the expiry of the deadline.
(4) If the creditor has taken appropriate measures according to paragraphs (1)-(3), the surety’s obligation is limited to the amount of the secured obligations on the last day of the deadline.
Article 1644. Limits of global suretyship without a time limit
(1) If the global suretyship is not limited to obligations arising or becoming due within a stipulated deadline, both the creditor and the surety may establish a limit to the guarantee by giving at least 3 months’ notice to the other party.
(2) Pursuant to the notice, the suretyship shall be deemed limited to the guaranteed obligations that have become due by the date of expiry of the notice.
Article 1645. Reduction of the creditor’s rights
(1) To the extent that, due to the conduct of the creditor, the surety cannot subrogate the creditor’s rights against the debtor and the creditor’s rights resulting from personal and real guarantees granted by third parties or cannot obtain full restitution in recourse from the debtor or from third parties who have granted personal or real guarantees, the creditor’s rights against the surety shall be reduced to the extent necessary to avoid the surety suffering any damage due to the conduct of the creditor. If the surety has already performed, he shall be entitled to the corresponding restitution from the creditor.
(2) The provisions of paragraph (1) shall apply only if the creditor’s conduct is below the level of prudence of a person who manages his affairs with reasonable prudence.
Article 1646. The surety’s request to be released
(1) The surety who has offered a guarantee at the request of the debtor or with the express or presumed consent of the debtor may request the debtor to determine its release:
a) if the debtor has not performed the secured obligation when due;
b) if the debtor is insolvent or has suffered a substantial reduction in property; or
c) if the creditor has initiated an action based on the suretyship against the surety.
(2) Release shall also be deemed granted upon the provision of an appropriate guarantee.
(3) The surety may not be released from the suretyship without the creditor expressly waiving it.
Article 1647. Notification and request of the surety
before performance
(1) Before executing in favor of the creditor, the surety is obliged to notify the debtor and request information about the outstanding amount of the secured obligation and about any exceptions or counterclaims against the creditor.
(2) If the surety fails to comply with the obligation provided for in paragraph (1) or to invoke the exceptions communicated by the debtor or known to the surety by other means, the right of the surety to recover from the debtor under Article 1648 shall be reduced to the extent necessary to avoid the debtor suffering any prejudice due to that omission.
(3) The rights of the surety against the creditor remain unaffected.
Article 1648. Rights of the surety after enforcement
(1) The surety shall have the right to recourse from the debtor only to the extent that the surety has performed the obligation resulting from the suretyship. In addition, the surety shall be subrogated, to the same extent, to the rights of the creditor against the debtor. The right to recourse and the rights acquired by subrogation shall exist in parallel.
(2) In case of partial enforcement, the remaining part of the creditor’s rights against the debtor has priority over the rights to which the surety has been subrogated.
(3) By virtue of the subrogation under paragraph (1), the rights arising from ancillary and autonomous personal guarantees and from real guarantees shall be transferred by operation of law to the guarantor notwithstanding any prohibition or contractual limitation on the right to transmit them. Rights against persons who have granted personal or real guarantees may be exercised only within the limits provided for in art. 1659.
(4) If the debtor, due to lack of full discernment or lack of the necessary capacity to exercise at the time of assuming the secured obligation, does not consider himself obligated to the creditor, but the surety is nevertheless bound by the suretyship and performs it, the right of the surety to restitution in recourse from the debtor is limited to the extent of the debtor’s enrichment from the transaction with the creditor. This rule also applies if a debtor legal person has not yet been established.
(5) The guarantor’s right of recourse does not extend to compensation, in any form, for which the guarantor was held liable to the creditor due to the unjustified non-performance of the obligation resulting from the suretyship.
(6) By way of derogation from the provisions of paragraph (1), the surety may take recourse even before the suretyship has been enforced if the surety is being pursued in court to obtain enforcement, if the debtor is insolvent or if the debtor has undertaken to release him from the suretyship within a specified period and this has expired.
Section 3
Independent personal guarantee
Article 1649. Autonomous character
(1) The independent personal guarantee maintains its autonomous character even if a general reference has been made in its content to the underlying obligation owed to the creditor.
(2) The provisions of this section shall also apply to standby letters of credit.
Article 1650. Notification of the debtor by the guarantor
(1) The guarantor has the obligation:
a) notify the debtor immediately of the receipt of a request for enforcement from the creditor and specify whether, from the guarantor’s point of view, enforcement is to be carried out or refused;
b) notify the debtor immediately of the enforcement on the basis of a request; and
c) to notify the debtor immediately of the refusal to enforce the request, specifying the reason for the refusal.
(2) If the guarantor breaches one of the obligations provided for in paragraph (1), the guarantor’s rights against the debtor under Article 1657 shall be reduced to the extent necessary to avoid the debtor suffering any damage due to that breach.
Article 1651. Performance by the guarantor
(1) The guarantor is obliged to enforce only if he has received a request for enforcement in textual form to which the necessary supporting documents are attached and which fully complies with all other conditions established in the contract or other juridical act by which the guarantee was established.
(2) Unless otherwise agreed, the guarantor may invoke the personal exceptions he has against the creditor in connection with the guarantee or another legal relationship between them.
(3) The guarantor is obliged to verify with a level of prudence expected from a person in his field of activity whether all the conditions established for enforcement are strictly complied with.
(4) The guarantor is obliged to refuse enforcement based on the request if it does not fully comply with all the established conditions, including if the enforcement request is received by the guarantor after the expiry of the deadline stipulated in the guarantee.
(5) The guarantor must, without undue delay and at the latest within 7 days of receipt of the enforcement request in textual form:
a) to execute in accordance with the request; or
b) inform the creditor of the refusal to enforce, specifying the reason for the refusal.
(6) If the creditor submits, together with the enforcement request, the original of the document by which the guarantee was assumed, the creditor’s waiver of the guarantee shall not be presumed.
Article 1652. Independent personal guarantee at the first
DEMAnD
(1) An independent personal guarantee which provides for enforcement on first demand or which is formulated in a way from which this could be inferred without any doubt shall be governed by the provisions of Article 1651, with the exceptions provided for in this Article.
(2) The guarantor is obliged to execute only if the creditor’s request is accompanied by a textual declaration of the creditor expressly confirming that all the conditions on which the performance of the guarantee depends are met.
(3) The provisions of art. 1651 paragraph (2) shall not apply.
Article 1653. Manifestly abusive or fraudulent solicitation
(1) The guarantor is obliged to refuse enforcement on the basis of the application if it is proven beyond doubt by evidence present at the time of examination of the application that the application is manifestly abusive or fraudulent. The obligation to refuse arises regardless of whether or not the debtor has presented the prohibition order provided for in paragraphs (2) and (3).
(2) In the case of the application provided for in paragraph (1), the debtor may request the court to issue an order prohibiting:
a) performance by the guarantor; and
b) the issuance or use of an enforcement request by the creditor.
(3) By way of derogation from the provisions of the Code of Civil Procedure, the ordinance has the effect of prohibiting performance by the guarantor from the date of its issuance.
Article 1654. The guarantor’s right of recourse
(1) The guarantor has the right to claim from the creditor the return of the benefits obtained if:
a) the conditions of the creditor’s request were not met or subsequently ceased to be met; or
b) the creditor’s request was manifestly abusive or fraudulent.
(2) The guarantor’s right to request restitution is regulated by the legal provisions on unjust enrichment.
Article 1655. Deadline for requesting enforcement
(1) If a time limit has been stipulated, directly or indirectly, within which the creditor may request enforcement under the guarantee, the guarantor shall remain liable even after the expiry of the time limit only if the creditor requested enforcement, in accordance with Art. 1651 para. (1) or Art. 1652, at any time when the creditor was entitled to file the request, but not later than the expiry of the time limit. The provisions of Art. 1643 para. (3) shall apply accordingly. The guarantor’s liability shall be limited to the amount that the creditor could have requested on the last day of the time limit.
(2) If no deadline has been stipulated, the guarantor has the right to set one by giving at least 3 months’ notice to the creditor. The guarantor’s obligation is limited to the amount that the creditor could have demanded on the last day of the notice period. The provisions of this paragraph do not apply if the guarantee is assumed for a specific purpose.
Article 1656. Assignment of rights resulting from the guarantee
(1) The creditor’s right to receive performance from the guarantor may be assigned or otherwise transferred.
(2) However, in the case of an independent personal guarantee on first demand, the right to enforcement may not be assigned or otherwise transferred and the application for enforcement may only be brought by the original creditor. This provision shall not prevent the transfer of the proceeds obtained from the guarantee.
Article 1657. Rights of the guarantor after enforcement
After having performed under the guarantee, the guarantor may exercise the rights provided for in art. 1648, which shall apply accordingly.
Section 4
Common provisions on the plurality of guarantors
Article 1658. Joint and several liability towards the creditor
(1) To the extent that several guarantors have guaranteed by surety the performance of the same obligation or the same part of an obligation or have assumed by independent personal guarantee commitments for the same guarantee purpose, each guarantor bears, within the limits of that guarantor’s commitment to the creditor, joint and several liability with the other guarantors. This rule also applies where the guarantors have assumed the guarantee by separate juridical acts and even if they were unaware of the existence of other guarantors.
(2) The provisions of paragraph (1) shall apply accordingly where both personal guarantees and real guarantees have been established for the benefit of the same creditor. For the purposes of applying this section, the creators of real guarantees shall be considered guarantors.
Article 1659. Internal recourse
(1) In the cases provided for in art. 1658, recourse between several guarantors is governed by the provisions of art. 811, subject to the provisions of this article.
(2) Subject to the provisions of paragraph (8) of this Article, the share of each guarantor within the meaning of Article 811 shall be determined in accordance with paragraphs (3) to (7) of this Article.
(3) Unless otherwise agreed, in their relations with each other, each guarantor shall be liable to the extent that the maximum risk assumed by that guarantor is related to the total of the maximum risks assumed by all guarantors. The relevant time is that of the granting of the last guarantee.
(4) In the case of a personal guarantee, the maximum risk is determined by the stipulated maximum amount of the guarantee. In the absence of a stipulation regarding the maximum amount, the value of the guaranteed obligation or, if a current account has been guaranteed, the credit limit shall be taken as the basis for calculation. If a guaranteed current account does not have a credit limit, the final balance shall be taken as the basis for calculation.
(5) In the case of collateral, the maximum risk is determined by the maximum stipulated amount of the collateral. In the absence of a stipulation regarding the maximum amount, the value of the property that are the subject of the collateral shall be taken as the basis for calculation.
(6) If the maximum amount in the case provided for in paragraph (4) first sentence or, respectively, the maximum amount or value in the case provided for in paragraph (5) exceeds the value of the guaranteed obligation at the time of granting the most recent guarantee, this latter value shall indicate the maximum risk.
(7) In the case of an unlimited personal guarantee securing an unlimited credit (including a global suretyship), the maximum risk of other guarantees, limited personal or real, exceeding the final balance of the guaranteed credit shall be considered limited to the latter.
(8) The provisions of paragraphs (3)-(7) shall not apply to collateral granted by the debtor nor to collateral which, at the time the creditor was satisfied, was already extinguished.
Article 1660. Recourse against the debtor
(1) The guarantor who has executed for the benefit of another guarantor who has acted in recourse shall be subrogated to that extent in the rights of that other guarantor against the debtor acquired under art. 1648 para. (1) and (3), including in the real rights of guarantee granted by the debtor. The provisions of art. 1645 shall apply accordingly.
(2) Where a guarantor has a right of recourse against the debtor by virtue of rights acquired under Article 1648, paragraphs (1) and (3) or under the provisions of paragraph (1) of this Article, including by virtue of security rights granted by the debtor, each guarantor is entitled to a proportionate share, referred to in Article 1659, paragraph (2) and Article 811, of the benefits recovered from the debtor. The provisions of Article 1645 shall apply accordingly.
(3) In the absence of a contrary stipulation, the debtor who has granted collateral is not considered a guarantor and has no right of recourse under the provisions of this article.
Article 1661. Application of legal provisions regarding
debtors’ solidarity
In the part not regulated by this section, the legal provisions regarding the solidarity of debtors shall apply to the relations between the parties.
Section 5
Special provisions regarding personal guarantees
granted by the consumer
Article 1662. Scope of application
(1) Any personal guarantee given by a consumer guarantor in favour of a business creditor shall be subject to the provisions of this section and, in addition, to the provisions of sections 1, 2 and 4.
(2) The personal guarantee does not fall under the scope of this section if the guarantor, a natural person, is a member, associate, shareholder, administrator of the debtor, a legal person, or has another possibility of exercising significant influence over the debtor.
(3) If it has been stipulated that the personal guarantee is autonomous, this stipulation is struck by absolute nullity and the guarantee is considered to be a suretyship, provided that the other conditions for the validity of the suretyship are met.
(4) Any clause that contravenes the provisions of sections 1, 2, 4 and this section to the detriment of the consumer guarantor (trustee) is absolutely null and void.
Article 1663. Pre-contractual obligations of the creditor
(1) Before assuming the suretyship, the creditor is obliged to explain the following to the potential surety:
a) the general effects of the intended suretyship; and
b) the specific risks to which the surety is exposed, according to the information available to the creditor, taking into account the debtor’s financial situation.
(2) Where the creditor knows or has reason to know that, due to a relationship of trust between the debtor and the surety, there is a significant risk that the surety will not assume the suretyship freely or with adequate information, the creditor shall be obliged to ascertain that the surety has received independent advice. The modalities for ascertaining that the surety has received independent advice shall be established by the Government.
(3) If the information referred to in paragraph (1) or, as the case may be, the independent consultations referred to in paragraph (2) are not received by the surety at least 5 days before the date of signing the surety offer or the suretyship, the offer may be revoked or the suretyship cancelled by the surety within a reasonable period after receipt of the information or the independent consultation. The period of 5 days shall be considered reasonable unless the circumstances indicate otherwise.
(4) If, contrary to the provisions of paragraph (1) or (2), the information or, as the case may be, the independent consultation has not been provided, the offer of suretyship may be revoked or the suretyship cancelled by the surety at any time.
(5) If the surety revokes the offer or cancels the suretyship pursuant to paragraphs (1)-(4), the benefits received by the parties shall be returned in accordance with the legal provisions regarding unjustified enrichment.
(6) The provisions of this article do not apply if the juridical act by which the surety is assumed is concluded in authentic form.
Article 1664. Nature of the surety’s liability
(1) If no maximum amount of the suretyship has been stipulated, whether it is a global suretyship or not, it is considered that the obligation of the surety is limited to the maximum amount of the principal guaranteed obligation at the date of assuming the suretyship. Such suretyship shall cover interest, commissions, damages, including in the form of penalties, and any expenses related to the principal guaranteed obligation only if they have been expressly stipulated.
(2) The surety’s obligation is presumed to be subsidiary, within the meaning of art. 1641, unless otherwise expressly stipulated.
Article 1665. Annual information obligations of the creditor
(1) Provided that the debtor’s consent has been obtained, the creditor is obliged to inform the surety annually about the amounts guaranteed from the principal obligation, interest and other ancillary obligations owed by the debtor on the date of the information. The debtor’s consent, once obtained, is irrevocable.
(2) The provisions of art. 1642 paragraphs (3) and (4) shall apply accordingly.
Article 1666. The right to limit the suretyship with
deadline
(1) The surety who has assumed a suretyship which is limited to obligations arising or becoming due within the stipulated deadline has the right, after the expiry of 3 years from the date of assumption, to limit its effects by giving at least 3 months’ notice to the creditor. This provision does not apply if the suretyship is limited to certain specified obligations or obligations arising from specifically specified contracts. The creditor must inform the debtor immediately after receiving a notice of limitation of the suretyship from the surety.
(2) Based on the notice, the suretyship is considered limited according to the provisions of art. 1644 paragraph (2).
Chapter XXI
mediation
Section 1
General provisions regarding
at the intermediary
Article 1667. Brokerage contract
Through an intermediation contract, one party (intermediary) undertakes to the other party (client) to act as an intermediary in concluding one or more contracts between it and a third party.
Article 1668. Payment of remuneration for intermediation
(1) A person who promises remuneration for brokering a contract or for indicating the opportunity to conclude a contract is obliged to pay the remuneration only when the contract is concluded following the indications given.
(2) When concluding a contract under a suspensive condition, remuneration may be requested only upon fulfillment of the condition.
(3) If no agreement has been reached on the amount of remuneration, a regular remuneration for such acts shall be paid.
(4) The intermediary may not agree on an advance payment of the remuneration received under this article nor may he accept such an advance payment.
(5) The clause derogating from the rules established in this article is null and void.
Article 1669. Right to other remuneration
(1) For services provided by the intermediary that cannot be related to the intermediation activity, but which are provided for in the contract, a remuneration may be agreed upon, regardless of whether or not the contract was concluded as a result of the intermediation activity.
(2) The clause providing for compensation for unnecessary intermediary expenses or unproven expenses is null and void.
Article 1670. Exclusive brokerage contract
(1) If the client undertakes, for a specified period, to refrain from engaging another intermediary (exclusive intermediation), the intermediary is obliged to act during this period to intercede or indicate opportunities to conclude the contract.
(2) If the customer breaches the obligation set out in paragraph (1), the intermediary may claim compensation if a contract is concluded with a third party through another intermediary. The contract may agree on an appropriate global compensation, regardless of the proof of damage. This compensation may not exceed 2.5% of the sale price if the contract establishes the intermediation or the indication of the opportunity for concluding a sale-purchase. Any clause derogating from the provisions of this paragraph to the detriment of the customer is null and void.
(3) The exclusive brokerage contract shall be concluded in writing.
Article 1671. Termination of the brokerage contract
(1) The brokerage contract may be terminated at any time, without notice, if no term has been agreed upon.
(2) The exclusive brokerage contract may be terminated only for good cause and with a notice period of 2 weeks.
Article 1672. Exclusion of remuneration and claims
for compensation
(1) The intermediary’s claims for remuneration and compensation or for reimbursement of expenses are excluded if the contract with the third party concerns an object belonging to the intermediary. This rule also applies when special circumstances justify the fear that the intermediary’s capacity to represent the client’s interests is affected.
(2) The intermediary retains his claims regarding remuneration or compensation for expenses if he indicates in writing to the client – before concluding the contract with the third party – the circumstances that justify the fear of prejudice.
(3) The provisions of paragraph (1) shall also apply when someone else acted on behalf of the intermediary or concluded the contract on behalf of the third party.
(4) The intermediary loses the rights regarding remuneration or compensation of expenses if, contrary to the stipulations of the contract, he also acted for a third party.
(5) Clauses that derogate from the provisions of this article are null and void.
Section 2
Intermediation of housing rentals
Article 1673. Regulations applicable to brokerage
rental housing
(1) The general provisions apply to the contract by which one party (housing intermediary) undertakes to mediate or indicate to the other party the opportunity to conclude a rental contract for a dwelling, to the extent that the rules of this section do not result otherwise.
(2) The rules regarding housing brokerage contracts do not apply to those contracts whose object is the brokerage of housing rentals for tourists.
Article 1674. Exclusion of remuneration and claims
compensation of the intermediary
HOUSING
(1) The claims of the housing intermediary regarding the payment of remuneration and compensation or the compensation of expenses are excluded when:
a) through a rental contract, the rent on the same dwelling was only extended or modified;
b) a rental contract has been concluded for a dwelling that is under the management of the housing intermediary.
(2) The housing intermediary may not agree, for the services provided in connection with the intermediation or with the indication of an opportunity to conclude a housing intermediation contract, on other monetary remunerations apart from the remuneration mentioned in art. 1669 paragraph (1).
(3) Clauses that derogate from the provisions of this article are null and void.
Section 3
Loan brokerage
Article 1675. Regulations applicable to brokerage
LOAN
The general provisions apply to the contract by which one party (loan intermediary) undertakes to provide the other party (client) with a loan or to indicate the opportunity to conclude a loan contract, unless otherwise provided for by the rules of this section.
Article 1676. Form and content of the contract
loan brokerage
(1) The loan brokerage contract shall be concluded in writing.
(2) The loan brokerage contract shall indicate the remuneration of the loan broker as a percentage of the loan amount. The amount, term, interest and amortization of the loan, the duration of the payment, its rate, the duration of the interest charge, the accessory costs of the loan, as well as the effective annual interest, the total amount to be paid by the broker, the name or business name, and the address of the lender shall also be mentioned.
(3) The provisions of paragraph (2) shall not apply if the task of intermediation or indication of the opportunity is directed towards the conclusion of a loan secured by a mortgage, a loan intended to finance a real estate business or a loan granted to the commission agent for the performance of his business, commercial, public or service activity.
(4) The contract must not be related to the offer of loan forgiveness.
(5) The loan intermediary is obliged to give the client a copy of the contract.
Article 1677. Remuneration of the loan intermediary
(1) The client is obliged to remunerate the intermediary only if, following the intermediary’s intermediation or indication, the client is granted a loan. The agreement concluded by derogation to the client’s disadvantage is null and void.
(2) The loan intermediary may not agree, apart from the remuneration provided for in paragraph (1), on any monetary remuneration for services rendered in connection with the intermediation or indication of the opportunity to lease a loan contract.
Section 4
Commercial intermediation
Article 1678. General provisions regarding intermediation
trader
(1) The holder of the rights and obligations of a commercial intermediary is the person who carries out business activity for other persons, without permanent powers of attorney on a contractual basis, for the intermediation of contracts for the purchase or sale of goods or securities, insurance, banking operations, transport of goods, rental of goods in the commercial circuit.
(2) The provisions of this section do not apply to the intermediation of operations other than those mentioned in paragraph (1) and operations with real estate.
Article 1679. Final text of the contract
(1) Except in cases where he is exempted by the parties or by the effect of local customs, the commercial intermediary is obliged, immediately after the conclusion of the contract, to make available to each party the final text thereof, signed by him, indicating the contracting parties, the object and conditions of the contract, and in the case of the sale of goods or securities, their type and quantity, price and delivery term.
(2) In the case of juridical acts that cannot be executed on the spot, the final text is made available to the parties for signature, each of them being sent the contract signed by the other party.
(3) If a party refuses to receive or sign the final text of the contract, the commercial intermediary shall inform the other party of this fact without delay.
Article 1680. The specified commitment
(1) If a party receives the final text of the contract, in respect of which the commercial intermediary reserves the right to indicate the other contracting party, then the former shall be bound, under the agreement, towards the party indicated subsequently if no reasonable objections can be raised against the latter.
(2) The designation of the other party shall be carried out within the usual deadlines at the place of issuance of the final text of the contract, and in the absence thereof, within a reasonable period.
(3) If the person is not nominated or if there are reasoned objections against him, the party has the right to submit claims to the commercial intermediary regarding the performance of the contract. This right does not exist if the party does not immediately declare to the commercial intermediary, at his request, that he requests the performance of the contract.
Article 1681. Preservation of samples
(1) To the extent that the parties or customs of the place and the nature of the good allow, the commercial intermediary shall keep the samples of the good sold through his intermediation until the good is received without objections or until the act is finalized in another way.
(2) The commercial intermediary shall mark the sample so that it can be recognized.
Article 1682. Lack of powers of acceptance
of payments
The commercial intermediary is not considered authorized to accept a payment or other form of remuneration provided for in the contract.
Article 1683. Liability of the commercial intermediary
The commercial intermediary is liable to both parties for damages caused through negligence.
Article 1684. The right to claim from both parties
remuneration
If there is no agreement between the parties regarding the payment of the commercial intermediary’s remuneration, each party will be obliged, in the absence of local customs that would stipulate otherwise, to pay half of the remuneration amount.
Article 1685. Register of commercial intermediaries
(1) The commercial intermediary is obliged to keep a register in which to record all concluded acts on a daily basis. The entries shall be made in chronological order. The commercial intermediary shall sign for each entry made.
(2) The provisions regarding commercial registers shall apply to the commercial intermediary’s register.
Article 1686. Presentation of extracts from the register
commercial intermediary
The commercial intermediary is obliged to present, at the request of the parties, extracts from the register, which he signs. The extracts will include all the relevant data for the documents mediated by him.
Chapter XXII
MARKETING CONTRACTS
OF OTHERS’ PRODUCTS
Section 1
Common provisions
Article 1687. Scope of application
(1) The provisions of this section shall apply to commercial agency contracts, business commission contracts, franchise contracts and distribution contracts, as well as, accordingly, to other contracts by virtue of which a party carrying out an independent activity undertakes to use skills and efforts to market the products of the other party.
(2) The provisions of this section shall not apply to the contracts referred to in paragraph (1) if the party obliged to place the products on the market:
a) in his capacity as an employee, he has the power to conclude contracts that bind the other party;
b) being a partner, has the right to conclude contracts that bind its partners;
c) is the administrator or liquidator of the reorganization procedure or of the liquidation procedure in the insolvency process;
d) operates on commodity exchanges.
(3) For the purposes of this chapter, products shall mean, as the case may be, goods, works or services.
(4) In the event of divergences between certain legal provisions:
a) the provisions of this chapter take precedence over the legal provisions regarding the mandate; and
b) the provisions of sections 2, 3 and 5 of this chapter take precedence over the provisions of this section.
Article 1688. Obligation to provide information before conclusion
CONTRACT
The party negotiating the conclusion of the contract is obliged to provide the other party, within a reasonable period before the conclusion of the contract and in accordance with the requirements of good commercial practice, with sufficient information to allow the other party to decide, being reasonably informed, on the conclusion or refusal to conclude a contract of the type and under the proposed conditions.
Article 1689. Obligation to cooperate
The parties to the contract are obliged to collaborate actively and loyally and to coordinate their efforts to achieve the objectives of the contract.
Article 1690. Obligation to provide information during
contract performance
During the term of the contract, each party is obliged to provide the other party, in a timely manner, with all information that the first party possesses and that is necessary for the other party to achieve the objectives of the contract.
Article 1691. Obligation of confidentiality
(1) The party receiving confidential information from the other party is obliged to maintain the confidentiality of the information and not to disclose the information to third parties both during the term of the contract and after its termination.
(2) The party receiving confidential information from the other party is obliged not to use it for purposes other than in accordance with the objectives of the contract.
(3) Information that is already held by a party or that has been publicly disclosed, as well as information that must necessarily be disclosed to customers in the course of business, does not constitute confidential information for the purposes of this Article.
Article 1692. Termination in the case of a fixed-term contract
determined
A party has the right not to extend a fixed-term contract. If a party has notified, within the appropriate period, of its intention to extend the contract, the contract shall be extended for an indefinite period, unless the other party has notified it, within a reasonable period before the expiry of the contract, that it does not wish it to be extended.
Article 1693. Termination in the case of a contract
indefinitely
(1) Each party to a contract concluded for an indefinite period has the right to terminate it by notifying the other party.
(2) If the notice provides that the termination will occur after a reasonable period of time, the obligation to pay compensation under Article 1694 does not arise. If the notice provides for immediate termination or termination after an unreasonable period of time, compensation shall be paid under the said Article.
(3) In determining the reasonableness of the term, the following factors shall be taken into account in particular:
a) the duration of the contractual relationship;
b) reasonable investments made;
c) the time needed to find a reasonable alternative; and
d) customs.
(4) It is reasonably presumed that a prior notice period of one month for each year of the duration of the contractual relationship, but not more than 36 months.
(5) The principal, the principal, the franchisor or the supplier is obliged to respect a notice period of at least one month for the first year, 2 months for the second, 3 months for the third, 4 months for the fourth, 5 months for the fifth and 6 months for the sixth year and for the following years for the duration of the contractual relationship. Any clause contrary to this paragraph is absolutely null and void.
(6) Agreements establishing longer terms than those provided for in paragraphs (4) and (5) are valid if the terms to be respected by the principal, principal, franchisor or supplier are not shorter than those to be respected by the commercial agent, commission agent, franchisee or distributor.
(7) In the case of contracts falling within the scope of this section, the provisions of this article replace those provided for in art. 1085.
Article 1694. Compensation for termination
without meeting the deadline
notification
(1) If a party declares the termination pursuant to art. 1693, but fails to comply with the reasonable notice period, the other party is entitled to damages.
(2) The compensation shall constitute the amount corresponding to the benefit that would have been obtained by the other party during the additional period in which the contractual relationship would have continued if the reasonable notice period had been respected.
(3) The annual benefit is presumed to be equal to the average benefit that was obtained by the injured party under the contract during the last 3 years or, if the contractual relationship lasted less, during the effective duration.
(4) The legal provisions regarding the right to compensation for non-performance of obligations shall apply accordingly.
Article 1695. Resolution for non-performance
The clause under which a party may declare the termination for a non-performance of the contractual obligation that is not considered, according to the law, essential is struck by absolute nullity.
Article 1696. Compensation for goodwill
(1) If the contract terminates for any reason (including termination by either party for material non-performance), the party is entitled to receive compensation from the other party for goodwill to the extent that:
a) the first party has substantially increased the volume of the other party’s commercial activity and the latter continues to derive significant benefits from that commercial activity; and
b) the payment of compensation is reasonable.
(2) The payment of compensation shall not prevent any party from claiming damages under art. 1694.
Article 1697. Stock, spare parts and materials
If the contract is null and void or is terminated at the initiative of one of the parties, the party whose products are placed on the market is obliged to buy back from the other party the remaining stock, spare parts and materials, at a reasonable price, unless it is reasonable for the other party to resell them.
Article 1698. Right of retention
In order to guarantee its rights to remuneration, compensation and indemnity, the party placing the products on the market has a right of retention over the movable property of the other party, which has come into its possession on the basis of the contract, as long as the other party does not perform its obligations.
Article 1699. Signed document available upon request
Each party has the right to receive from the other party, upon request, the agreed terms of the contract in textual form, on a durable medium. Any contrary term is absolutely null and void.
Article 1700. Obligation of non-compete
(1) The contract may prohibit or limit the party that places another party’s products on the market from carrying out, after the termination of the contractual relationship, activities that compete with the activities of the other party (non-compete obligation).
(2) The non-compete obligation is valid if:
a) is agreed in textual form, on a durable medium;
b) refers to a territory or a category of customers and a territory and to products of the type that are the subject of the contract;
c) does not violate the provisions of competition law.
(3) The non-compete obligation may not last longer than 2 years from the termination of the contractual relationship.
(4) Any clause contrary to the provisions of paragraphs (2) and (3) shall be absolutely null and void.
Section 2
Commercial agency
Article 1701. Commercial agency contract
(1) Through the commercial agency contract, one party (commercial agent) undertakes to act permanently as an intermediary who carries out independent activities to negotiate or conclude contracts on behalf of the other party (principal), and the principal undertakes to pay him remuneration for the respective activities.
(2) Any remuneration which depends wholly or partly on the number or value of contracts shall be presumed to be a commission.
Article 1702. Obligation of the commercial agent
to negotiate and conclude contracts
(1) The commercial agent is obliged to make reasonable efforts to negotiate, on behalf of the principal, and to conclude the contracts in respect of which he has received instructions to conclude them.
(2) The commercial agent is obliged to follow the reasonable instructions of the principal if these do not significantly affect the commercial agent’s independence.
Article 1703. Information by the commercial agent
during performance
Under the information obligation provided for in art. 1690, the commercial agent is obliged to provide the principal with information in particular regarding:
a) negotiated or concluded contracts;
b) market conditions;
c) solvency and other customer characteristics.
Article 1704. Commercial agent records
(1) The commercial agent is obliged to keep appropriate records regarding the contracts negotiated or concluded on behalf of the principal.
(2) If he represents several principals, the commercial agent is obliged to keep independent records for each principal.
(3) If the principal has serious grounds for doubting whether the commercial agent keeps proper records, the commercial agent shall, at the principal’s request, allow an independent accountant reasonable access to his records. The principal shall be obliged to pay the services of the independent accountant.
Article 1705. Right to commission during the agency period
trader
(1) The commercial agent is entitled to commission for any contract concluded with a client during the term of the commercial agency, if the contract was concluded as a result of the commercial agent’s efforts:
a) with a third party who was previously attracted by the commercial agent as a client of the principal in contracts of the same kind; or
b) with a client from a specific geographical area or from a group of clients who have been entrusted to the commercial agent.
(2) The right to commission provided for in paragraph (1) arises:
a) if the principal has performed or should have performed his obligations arising from the contract; or
b) if the client has fulfilled his obligations arising from the contract or justifiably suspends the performance.
(3) Any clause that derogates from the provisions of paragraph (2) letter b) to the detriment of the commercial agent is absolutely null and void.
Article 1706. Right to commission after termination
commercial agency
(1) The commercial agent is entitled to commission for any contract concluded with a client after the termination of the commercial agency:
a) if the concluded contract is, substantially, the result of the commercial agent’s efforts exercised during the period covered by the commercial agency contract and if the contract was concluded within a reasonable period after the termination of the commercial agency; or
b) if the conditions provided for in art. 1705 para. (1) and (2) were met, but the contract was not concluded during the term of the commercial agency, and the client’s offer was received by the principal or the commercial agent before the termination of the commercial agency.
(2) The right to commission provided for in paragraph (1) arises:
a) if the principal has performed or should have performed his obligations arising from the contract;
b) if the client has fulfilled his obligations arising from the contract or justifiably suspends the performance.
(3) Any clause that derogates from the provisions of paragraph (2) letter b) to the detriment of the commercial agent is absolutely null and void.
(4) The commercial agent is not entitled to the commission provided for in Article 1705 if a previous commercial agent is entitled to the respective commission under this Article, unless the sharing of the commission between the two commercial agents is reasonable.
Article 1707. Expiration of the commission
(1) The principal is obliged to pay the commercial agent the commission no later than the last day of the month following the quarter in which the agent obtained the right to the commission.
(2) Any clause that derogates from the provisions of paragraph (1) to the detriment of the commercial agent is absolutely null and void.
Article 1708. Extinction of the right to commission
(1) The clause by which the commercial agent’s right to commission for a contract concluded with a client is extinguished is valid only to the extent that it provides for the extinction on the grounds that the client’s contractual obligations are not performed for a reason for which the principal is not liable.
(2) Upon termination of his right to commission, the commercial agent is obliged to refund the commission that has already been received.
(3) Any clause that derogates from the provisions of paragraph (1) to the detriment of the commercial agent is absolutely null and void.
Article 1709. Information obligations of the principal
(1) Under the information obligation provided for in art. 1690, the principal is obliged in particular to provide information on the characteristics of the products, as well as on the prices and conditions of sale or purchase.
(2) The principal is obliged to inform the commercial agent, within a reasonable time, about:
a) the acceptance or rejection by the principal of a contract negotiated by the commercial agent on behalf of the principal; and
b) any failure to perform obligations resulting from a contract negotiated or concluded by the commercial agent on behalf of the principal.
(3) The principal is obliged to warn the commercial agent within a reasonable period of time when he foresees that the volume of contracts that the principal will be able to conclude will be significantly lower than the volume that the commercial agent can reasonably foresee. It is presumed that the principal has foreseen what he could reasonably foresee.
(4) The principal shall be obliged to send the commercial agent, within a reasonable time, a report on the commission to which the commercial agent is entitled. That report shall state how the amount of the commission was calculated. For the purpose of calculating the commission, the principal shall be obliged to present to the commercial agent, upon request, an extract from his records.
(5) Any clause that derogates from the provisions of paragraphs (2)-(4) to the detriment of the commercial agent is absolutely null and void.
Article 1710. Records kept by the principal
(1) The principal is obliged to keep appropriate records regarding the contracts negotiated or concluded by the commercial agent.
(2) If the principal has several commercial agents, he is obliged to keep independent records for each commercial agent.
(3) The principal is obliged, at the request of the commercial agent, to allow an independent accountant reasonable access to his records:
a) if the principal does not perform the obligation provided for in art. 1709 paragraph (4); or
b) if the commercial agent has important reasons to doubt that the principal keeps proper records.
Article 1711. Amount of compensation
(1) The commercial agent is entitled to receive compensation for goodwill under art. 1696 in an amount equal to:
a) the average commission of contracts with new clients and the increased volume of commercial activity with existing clients, calculated for the last 12 months and multiplied by:
b) the number of years over which the principal is likely to continue to obtain benefits from these contracts in the future.
(2) The amount of compensation resulting from this calculation must be adjusted taking into account:
a) the likely decrease in customers, based on the average migration rate in the commercial agent’s territory; and
b) the reduction required for advance payment, based on the interest provided for in art. 874.
(3) In any case, the compensation may not exceed the remuneration for 1 year, calculated from the average annual remuneration of the commercial agent over the last 5 years or, if the contractual relationship lasted less than 5 years, from the average over the effective duration.
(4) Any clause that derogates from the provisions of this article to the detriment of the commercial agent is absolutely null and void.
Article 1712. Del credere clause
(1) The agreement by which the commercial agent guarantees that a customer will pay the price of the products that form the subject of the contract negotiated or concluded by the commercial agent (del credere clause) is valid only to the extent that:
a) it is in textual form, on a durable medium;
b) refers to specific contracts that have been negotiated or concluded by the commercial agent or to contracts with specific customers specified in the agreement; and
c) is reasonable in relation to the interests of the parties.
(2) The commercial agent is entitled to a commission of a reasonable amount for contracts to which the del credere guarantee applies (del credere commission).
Section 3
Business commission
Article 1713. General provisions regarding
at the business commission agent
(1) A business commission agent (commission agent) is a person who, within the framework of his permanent commercial activity, assumes the obligation to conclude contracts with products or securities in his own name, but on the account of another person (principal).
(2) The rules relating to commercial agents shall apply to the commission agent’s activity which is not regulated by the rules of this section.
(3) The rules regarding the commission contract shall apply to the extent that the provisions of this chapter do not provide otherwise.
Article 1714. Obligations of the commission agent
(1) The commission agent is required to perform the obligations he has assumed with the diligence of a good business. The commission agent must respect the interests of the principal and carry out the instructions given by him.
(2) The commission agent shall provide the principal with the necessary information, in particular, he shall immediately notify him of the performance of the commission. He shall be obliged to submit to the principal a report on the performance of the commission and to transmit to him the dues from the respective performance.
(3) The commission agent is liable to the principal for the performance of the concluded juridical act if, simultaneously with the notification of the performance of the commission, he does not indicate the third party with whom he concluded the juridical act.
Article 1715. Effects of failure to comply with instructions
principal
If the commission agent does not act according to the principal’s instructions, he is obliged to repair the damage caused. At the same time, the principal has the right not to recognize the effects of the juridical act thus concluded with regard to him.
Article 1716. Price limits
(1) If the commission agent has made a sale at a price lower than the established one or if he has increased the established purchase price, the principal, if he intends to reject the agreement as not having been concluded on his account, must declare this fact immediately after the notification of the conclusion of the agreement. Otherwise, the deviation from the established price shall be deemed accepted.
(2) If the commission agent, at the same time as notifying the conclusion of the agreement, declares that he will compensate for the price difference, the principal shall not have the right to repudiate the agreement. The principal’s right to demand compensation for damage exceeding the price difference shall not be affected.
Article 1717. Conclusion of the agreement under more favorable conditions
advantageous
If the commission agent concludes a contract on more advantageous terms than those established by the principal, the advantages are attributed to the principal. This rule has effects in particular if the price at which the commission agent made the sale exceeds the price that the principal established as the lowest or if the purchase price does not reach the highest price established by the principal.
Article 1718. Remuneration of the commission agent
(1) If the agreement is executed, the commission agent may claim payment of the commission.
(2) Even if the agreement has not been executed, the commission agent is still entitled to a commission if this is provided for by commercial usage.
(3) The commission agent may claim payment of the commission even if the performance of the juridical act concluded by him has not taken place, if this fact is due to the guilt of the principal or is related to his personality.
Article 1719. Damaged or defective product
If the product shipped to him is damaged or has certain defects detectable upon examination, the commission agent, in relation to the carrier and the principal, is obliged to provide proof of its condition and to inform the principal immediately. Otherwise, the commission agent will be obliged to repair the damage thus caused.
Article 1720. Liability of the commission agent for
product
(1) The commission agent is liable for the loss or damage of the product in his custody, unless the loss or damage resulted from circumstances that could not have been avoided by the diligence of a good business.
(2) The commission agent is liable for failure to insure the product only if the principal has instructed him to carry out the insurance.
Article 1721. Advance and credit upon performance
commission contract
(1) If he has granted an advance or credit to a third party without the consent of the principal, the commission agent acts at his own risk.
(2) If commercial customs provide for the possibility of granting a deferral for the payment of the purchase price, the commission agent shall also enjoy this right in the absence of contrary indications from the principal.
(3) If, without authorization, he makes a sale on credit, the commission agent is obliged, as a debtor, to immediately pay the purchase price to the principal’s account.
Article 1722. Similar contracts
The provisions of this section shall apply, unless otherwise provided or unless the essence of the relations indicates otherwise, also in the event that the commission agent, while carrying out his own commercial activity, undertakes to conclude, in his own name but on behalf of another person, juridical acts other than those referred to in art. 1713 paragraph (1).
Section 4
Franchise
Article 1723. Franchise contract
Through the franchise agreement, one party (franchisor) grants the other party (franchisee), in exchange for a royalty, the right to carry out a commercial activity (franchising activity) within the franchisor’s network, with the aim of supplying certain products in the name and on behalf of the franchisee, and the franchisee has the right and obligation to use the trade name, trademark or other objects of rights to the object of intellectual property, know-how and methods of commercial activity of the franchisor.
Article 1724. Information before the conclusion of the contract
(1) Pursuant to the information obligation provided for in art. 1688, the franchisor is obliged in particular to provide the franchisee with appropriate and timely information regarding:
a) the franchisor’s business and experience;
b) the relevant objects of intellectual property rights;
c) the characteristics of the relevant know-how;
d) commercial sector and market conditions;
e) the particular methods of the franchise and its development;
f) the structure and size of the franchise network;
g) commissions, royalties and any other periodic payments; and
h) the contract clauses.
(2) Even if the franchisor’s failure to comply with the provisions of paragraph (1) did not cause an error for which, according to the law, the contract may be cancelled, the franchisee may claim damages according to art. 346, except in the case where the franchisor had reason to believe that the information was appropriate or was provided in a timely manner.
(3) Any clause contrary to the provisions of this article shall be absolutely null and void.
Article 1725. Obligation to cooperate
The clause of the franchise contract derogating from the provisions of art. 1689 is struck by absolute nullity.
Article 1726. Intellectual property rights
on the object and the know-how
(1) The franchisor is obliged:
a) grant the franchisee the right to exploit the objects over which he has intellectual property rights to the extent necessary for carrying out the franchise activity;
b) to make reasonable efforts to ensure the undisturbed and continuous exercise of this right.
(2) During the term of the contract, the franchisor is obliged to provide the franchisee with the necessary know-how to carry out the franchise activity.
(3) Any clause contrary to the provisions of this article shall be absolutely null and void.
Article 1727. Assistance
The franchisor is obliged:
a) to provide the franchisee with assistance in the form of training courses, guidance and advice, to the extent necessary for the conduct of the franchise activity, at no additional cost to the franchisee;
b) to provide assistance other than that provided for in letter a) to the extent reasonably requested by the franchisee, at a reasonable price.
Article 1728. Provision
(1) Where the franchisee is obliged to obtain the products from the franchisor or from a supplier designated by the franchisor, the franchisor is obliged to ensure that the products ordered by the franchisee are supplied within a reasonable time, to the extent possible and provided that the order is reasonable.
(2) The provisions of paragraph (1) shall also apply to cases where, although the franchisee is not obliged to obtain the products from the franchisor or from a supplier designated by the franchisor, he is in fact forced to do so.
(3) Any clause contrary to the provisions of this article shall be absolutely null and void.
Article 1729. The franchisor’s obligation to inform
during performance
Under the information obligation provided for in art. 1690, the franchisor is obliged in particular to provide the franchisee with information regarding:
a) market conditions;
b) the commercial results of the franchise network;
c) product characteristics;
d) prices and conditions of supply of products;
e) recommended prices and conditions for resupplying products to customers;
f) relevant communications between the franchisor and customers in the territory; and
g) advertising campaigns.
Article 1730. Warning of reduced capacity
supply
(1) Where the franchisee is obliged to obtain products from the franchisor or from a supplier designated by the franchisor, the franchisor shall be obliged to warn the franchisee within a reasonable period of time if it foresees that its supply capacity or the supply capacity of the designated supplier will be significantly lower than the capacity that the franchisee had reason to expect. It shall be presumed that the franchisor has foreseen what it could reasonably foresee.
(2) The provisions of paragraph (1) shall also apply to cases in which, although the franchisee is not required by law to obtain the products from the franchisor or from a supplier designated by the franchisor, he is, in fact, forced to do so.
(3) Any clause contrary to the provisions of this article to the detriment of the franchisee is absolutely null and void.
Article 1731. Network reputation and advertising
(1) The franchisor is obliged to make reasonable efforts to promote and maintain the reputation of the franchise network.
(2) In particular, the franchisor is obliged to develop and coordinate appropriate advertising campaigns with the aim of promoting the franchise network.
(3) Activities to promote and maintain the reputation of the franchise network will be carried out at no additional cost to the franchisee.
Article 1732. Commissions, royalties and other periodic payments
(1) The franchisee is obliged to pay the franchisor the commissions, royalties or other periodic payments agreed in the contract.
(2) If the commissions, royalties or other periodic payments will be determined unilaterally by the franchisor, the provisions of art. 1007 shall apply.
Article 1733. Franchisee’s obligation to inform
during performance
Under the information obligation provided for in art. 1690, the franchisee is obliged in particular to provide the franchisor with information regarding:
a) actions brought or threatened to be brought by third parties regarding the franchisor’s rights over the intellectual property object; and
b) violations by third parties of the franchisor’s rights over the intellectual property object.
Article 1734. Methods of commercial activity and indications
(1) The franchisee is obliged:
a) to make reasonable efforts to carry out the franchise activity in accordance with the franchisor’s business methods;
b) to follow the franchisor’s reasonable instructions regarding the methods of commercial activity and the maintenance of the network’s reputation;
c) exercise reasonable caution so as not to harm the franchise network.
(2) Any clause contrary to the provisions of this article shall be absolutely null and void.
Article 1735. Inspection
The franchisee is obliged:
a) allow the franchisor reasonable access to its premises in order for the franchisor to verify whether the franchisee complies with the franchisor’s business methods and instructions;
b) to provide the franchisor with reasonable access to its accounting records.
Section 5
Distribution
Article 1736. Distribution contract
(1) By means of a distribution contract, one party (supplier) undertakes to supply the other party (distributor) with products on a continuous basis, and the distributor undertakes to purchase the given products or to take them and pay for them and to supply them to others in the name and on the account of the distributor.
(2) The exclusive distribution contract is the distribution contract by virtue of which the supplier undertakes to supply products to a single distributor in a given territory or to a specific group of customers.
(3) The selective distribution contract is a distribution contract under which the supplier undertakes to supply products, directly or indirectly, only to distributors selected on the basis of established criteria.
(4) Exclusive purchase agreement is a distribution agreement by virtue of which the distributor undertakes to purchase or take and pay for products only from the supplier or from a person designated by the supplier.
Article 1737. Obligation to supply products
and advertising and promotional materials
to maintain reputation
The supplier is obliged:
a) to supply the products ordered by the distributor, to the extent possible and provided that the order is reasonable;
b) to provide the distributor, at a reasonable price, with all advertising materials it possesses and which are necessary for the proper distribution and promotion of the products;
c) to make reasonable efforts not to harm the reputation of the products.
Article 1738. Information by the supplier during the period
performance
Under the information obligation provided for in art. 1690, the supplier is obliged to provide the distributor with information regarding:
a) product characteristics;
b) prices and conditions of supply of products;
c) recommended prices and conditions for resupplying products to customers;
d) relevant communications between the supplier and customers; and
e) advertising campaigns relevant to the conduct of commercial activity.
Article 1739. Warning by the supplier regarding
low supply capacity
(1) The supplier is obliged to warn the distributor within a reasonable period of time when it foresees that its supply capacity will be significantly lower than the capacity that the distributor had reason to expect. It is presumed that the supplier has foreseen what he could reasonably foresee.
(2) In exclusive purchase contracts, any clause contrary to the provisions of this article shall be absolutely null and void.
Article 1740. Distributor’s obligations in contracts
exclusive distribution and in contracts
selective distribution
(1) The distributor is obliged:
a) to the extent possible, make reasonable efforts to promote the products;
b) to warn the supplier within a reasonable period of time when it foresees that its orders will be significantly smaller than the orders which the supplier had reason to expect. It is presumed that the distributor has foreseen what it could reasonably foresee;
c) to follow reasonable instructions given by the supplier, which aim to ensure the proper distribution of the products or to maintain the reputation or distinctive characteristics of the products;
d) allow the supplier reasonable access to its premises in order for the supplier to verify that the distributor complies with the standards agreed by contract and the reasonable instructions given;
e) to make reasonable efforts not to harm the reputation of the products.
(2) Pursuant to the information obligation provided for in art. 1690, the distributor is obliged to provide the supplier with information regarding:
a) actions brought or threatened to be brought by third parties regarding the supplier’s rights over the intellectual property object; and
b) violations by third parties of the supplier’s rights over the intellectual property object.
(3) The provisions of this Article shall apply only to exclusive distribution contracts and selective distribution contracts.
Chapter XXIII
BANKING CONTRACTS AND OPERATIONS
AND NON-BANKING
Section 1
Bank deposit
Article 1741. Bank deposit contract
(1) Through the bank deposit contract, the bank or another financial institution (bank), licensed according to the law, receives from its client (depositor) or from a third party for the benefit of the depositor an amount of money, entered in the balance of the deposit account opened in the name of the depositor, which it undertakes to return to the depositor after a certain term (term deposit) or on demand (demand deposit).
(2) The provisions relating to loans and current bank accounts shall apply to the relations between the bank and the depositor, unless they contradict this section and the nature of the bank deposit.
(3) The provisions of this section shall apply accordingly to savings deposit contracts concluded by savings and loan associations with their members, except in the cases provided for by law.
Article 1742. Form of bank deposit agreement
The bank deposit agreement must be concluded in writing. The written form of the agreement is considered to be respected if the bank issues the depositor a savings book, a certificate of deposit or any other document attesting to the deposit of money and which complies with the requirements of the law and banking practices.
Article 1743. Interest
(1) The bank shall pay the depositor interest in the amount and manner provided for in the contract, and if the contract does not provide for the amount of interest, it shall be determined in accordance with the provisions of Article 874. The parties may agree that the bank shall not pay the depositor interest.
(2) The bank may not unilaterally reduce the amount of interest except in cases provided for by law or contract, provided that a notice period of at least 15 days is observed.
Article 1744. Order of calculation and payment of interest
(1) Interest on a bank deposit shall be calculated starting from the day following the day of making the deposit, until the day preceding the day of refund of the deposited amount or its settlement on other legal grounds.
(2) Unless the bank deposit contract provides otherwise, the interest on the bank deposit amount shall be paid to the depositor, at his request, at the end of each quarter, and the interest not collected within this period shall be added to the deposit amount for which the interest shall be calculated further.
(3) Upon the return of the deposited amount, the entire interest calculated up to that point shall be paid.
Article 1745. Banking secrecy
(1) The bank guarantees the confidentiality of information regarding business relations with the client.
(2) Information constituting banking secrecy may be provided only at the request of the client or his representative. The bank may provide such information to representatives of public authorities only in the case and in the manner provided for by law.
(3) If the bank discloses information that constitutes banking secrecy, the depositor whose rights have been violated may claim compensation.
Article 1746. Term deposit and demand deposit
(1) Regardless of the type of deposit, the bank is obliged to refund, at the first request of the depositor, the entire or partial amount deposited, respecting a notice period in accordance with the agreement of the parties or banking practices. Any contrary clause to the detriment of the depositor is absolutely null and void.
(2) If the depositor is fully or partially refunded the deposited amount before the expiry of the agreed term, the interest shall be calculated in the amount provided for demand deposits unless otherwise provided in the contract.
(3) If the depositor does not request, upon expiry of the agreed term, the return of the deposit, the contract shall be considered extended under the new conditions offered by the bank for the deposit of the respective type.
Section 2
Current bank account
Article 1747. Bank current account contract
Through the bank current account contract, the bank undertakes to receive and record in the account of the account holder (client) the amounts of money deposited by him or a third party in cash or transferred (transferred) from the accounts of other persons, to execute within the limits of the available funds in the account the client’s orders regarding the transfer of amounts to other persons, the release of cash, as well as to perform other operations in the client’s account on his behalf in accordance with the law, the contract and banking practices, and the client to pay a remuneration for the provision of the aforementioned services.
Article 1748. Disposal of funds in the account
(1) The holder is free to dispose of the funds in his account at any time, except in cases where, by agreement of the parties, a notice period is established. The client has the right to revoke his instructions regarding the disposal of the funds in his account. Revocations are effective if they are received by the bank by the time the respective instructions are executed.
(2) The persons authorized to dispose of the funds in the account are indicated by the client by presenting the respective documents provided for by law, the contract and banking practices.
(3) The identification of persons authorized to dispose of the funds in the account is carried out by the bank based on signatures or other means of identification.
Article 1749. Joint account holders
(1) If the account was opened by several holders (joint account holders), the bank is required to execute only the orders accepted by all the joint account holders unless it was stipulated that the acceptance of one or several joint account holders is sufficient for the order to produce legal effects.
(2) If it has been stipulated that the acceptance of all co-holders is not necessary, the contract may provide for certain limits of amounts or time with regard to orders issued by the co-holder or co-holders empowered to accept a valid order.
(3) The provisions of paragraphs (1) and (2) shall apply accordingly to the change of powers of attorney of the co-holders or the closure of the current account.
(4) The provisions of this article shall apply accordingly to bank accounts other than current accounts.
Article 1750. Client orders and instructions
(1) The bank is obliged to carry out operations on the client’s account only at his order. The bank may not carry out operations on the client’s account without his order except in cases provided for by law or contract.
(2) In the case of performing operations on the client’s account, the bank is obliged to follow the account holder’s instructions within the limits of the purpose pursued by the contract.
(3) If the bank fails to comply with the account holder’s instructions or deviates from them, if it cannot be assumed that the account holder, knowing the facts, would have approved the deviation, the bank is obliged to pay compensation. An amount incorrectly debited from the customer’s account must be re-credited.
(4) The provisions relating to the mandate contract shall apply to the relations between the bank and the client if they do not contradict the provisions of this chapter and the nature of the bank account contract.
Article 1751. Accounting of operations and statements
from the account
The bank keeps the account book by recording in its credit and debit the operations performed, having the obligation to transmit to the client, within the agreed terms, statements from the account on his situation. The account holder may at any time request information or clarifications on the account situation and on the circumstances of any operation performed on the account.
Article 1752. Mutual claims of the bank and the
CUSTOMER
(1) The bank owes the client interest for the use of funds in his account unless otherwise provided in the contract.
(2) Mutual claims of the bank and the client shall be settled by offsetting.
Article 1753. Termination of the current account agreement
(1) The contract concluded for an indefinite term may be terminated at any time by either party, subject to a notice period established by the contract or banking practices, and in the absence of such a period, within 15 days.
(2) The bank may declare the termination only to the extent that the holder can otherwise benefit from the possibility of making settlements by transfer if there is no valid reason for the termination.
Article 1754. Obligation of confidentiality
(1) The bank is obliged to maintain confidentiality of all facts that it has learned as a result of business relations with the client. This obligation does not exist if it results from a legal provision or if it concerns general information the disclosure of which does not prejudice the justified interests of the client.
(2) The obligation of confidentiality shall continue to exist even after the termination of the contractual relations.
Article 1755. Collection and payment of checks
(1) The bank is obliged to the client, even in the absence of an additional contract in this regard, to collect, by means of timely presentation to the drawing bank, the checks presented by the client, and in case of non-collection, to take the necessary precautionary measures.
(2) In the case of a corresponding contract, the bank is obliged to pay the checks issued by the client within the limits of the property.
Section 3
Trust account
Article 1756. Trust account
(1) The person requesting the bank to open a current, deposit or other bank account may stipulate that he acts as a fiduciary and request that it be stated that the account opened in his name will be a fiduciary account.
(2) The bank shall state that the account opened is a fiduciary account if the applicant provides proof of the registration of the fiduciary account in the register of movable collateral. This proof is not required if the fiduciary account is opened by the bank in his name, as well as if the account holder is:
a) another bank;
b) a form of exercising the profession of bailiff, notary or lawyer;
c) central depository or investment trust management company and other business participants holding licenses for capital market activity;
d) a crowdfunding service provider.
(3) In cases permitted by law or contract, the trustee may use the same trust account to hold sums of money received under different trust relationships.
Article 1757. Seizure Trust Account Agreement
Through the escrow fiduciary account agreement, in exchange for an agreed remuneration, the bank undertakes, as a fiduciary, to open a fiduciary account (escrow fiduciary account) in its name, to receive from one of the other parties (payer) or from a third party sums of money deposited in cash or transferred from the accounts of other persons, to hold them and to make transfers of sums of money from the escrow fiduciary account for the benefit of another party or a third party (beneficiary) upon fulfillment of the conditions expressly provided for in the escrow fiduciary account agreement.
Article 1758. Conditions for carrying out the transfer
(1) The escrow trust account agreement must provide for:
a) the conditions upon fulfillment of which the bank will make the transfer, the amount subject to the transfer and the beneficiary of the transfer or the method of determining the amount and the beneficiary;
b) the deadline by which the conditions for the transfer referred to in letter a) must be met (the seizure period);
c) the person in whose favor the bank will pay the balance of the sequestration fiduciary account if the conditions mentioned in letter a) are not met by the expiration of the sequestration term.
(2) For the purposes of paragraph (1) letter a), the condition for carrying out the transfer may consist of:
a) presentation to the bank of proof of the conclusion of a contract;
b) presenting to the bank proof of acquisition of ownership of an property;
c) presentation to the bank of proof of the issuance of a final court decision, arbitration award or a mediator;
d) failure to inform the bank about the emergence of a dispute between the parties based on other existing relationships between them;
e) any other circumstance, if its stipulation as a condition does not contravene mandatory legal provisions, public order or good morals.
(3) The bank will refuse to amend the sequestration fiduciary account agreement, including extending the sequestration term, as long as the creditors of one of the other parties to the agreement continue to pursue the amounts of money from its accounts opened in that bank.
Article 1759. Obligations of the bank upon receipt
evidence of compliance with the conditions
(1) The bank is obliged:
a) immediately notify a party of the receipt of evidence confirming the fulfillment of the conditions for the transfer from the other party;
b) immediately notify the parties of the transfer; and
c) immediately notify the parties of the refusal to make a transfer and specify the reason for the refusal.
(2) The bank is obliged to make the transfer in favor of the beneficiary only if the evidence received fully complies with all the conditions established in the escrow account contract.
(3) The bank is obliged to verify the fulfillment of the conditions with a level of prudence expected from a person in its field of activity.
(4) The bank is obliged to refuse to make the transfer if the applicable conditions are not met, in particular:
a) if it is proven beyond doubt, through evidence present at the date of examination, that the evidence of compliance with the conditions, presented to the bank, is fraudulent;
b) if the bank received evidence of compliance with the conditions after the seizure period expired.
Article 1760. Seizure regime
(1) None of the other parties to the escrow account agreement has the right to instruct the bank to make transfers from the escrow account, nor to revoke the bank’s fiduciary powers other than in accordance with the express terms of the agreement.
(2) Either party may request information from the bank regarding the balance of the sequestration fiduciary account and the operations performed by it.
(3) The amounts of money recorded in the balance of the escrow account may be pledged by the bank with the consent of all parties to the escrow account agreement. In this case, the bank shall fulfill its powers and obligations arising from the escrow account agreement to the extent that they do not contravene the terms of the pledge established.
Article 1761. Closure of the sequestration trust account
(1) If, upon fulfillment of the condition for making the transfer, the bank does not have sufficient information to make the transfer in favor of the beneficiary, the bank will open a current account in the name of the beneficiary and transfer the amounts owed to him into it.
(2) If, upon expiry of the seizure period, the conditions for making the transfer have not been met and the bank does not have sufficient information to pay the balance of the fiduciary account in favour of the entitled person, the bank shall open a current account in the name of the entitled person and transfer the amounts due to that person into it.
(3) In the cases provided for in paragraphs (1) and (2), the bank shall close the escrow account and inform the parties to the escrow account agreement about the operations performed.
Article 1762. Application of the provisions of this section
(1) The provisions of this section are supplemented by the legal provisions on trust.
(2) The provisions of Articles 1757-1761 and of this Article shall apply accordingly when the trust account, opened by a person other than the bank, is used for the provision of conventional seizure services.
Section 4
The credit
Article 1763. Credit agreement
(1) By means of a credit agreement, a bank or a non-bank credit organization (creditor) undertakes to make available to another person (debtor) an amount of money as a loan, subject to its repayment, the payment of interest and other related payments, or assumes any other commitment to acquire a receivable or to make a payment, to extend the repayment term of the debt or to issue any guarantees.
(2) The credit agreement shall be concluded in writing.
(3) The provisions relating to the loan agreement shall apply to the credit agreement to the extent that the rules of this chapter do not provide otherwise or the contrary does not arise from the essence of the credit agreement.
(4) The provisions of this section apply to loans granted by banks or non-bank lending organizations, other organizations granting loans under the law, as well as to loans granted through crowdfunding platforms.
Article 1764. Interest on credit
(1) The parties to the credit agreement may agree on a fixed or floating interest rate.
(2) The creditor may not unilaterally change the amount of interest except in cases provided for by law or contract. In the event that the contract provides for the right of the bank or non-bank credit organization to unilaterally change the amount of interest, this shall be done based on the base rate of the National Bank, the inflation rate and the evolution of the banking and non-banking financial market, taking into account the principle of equity.
(3) The creditor shall notify the debtor in writing of the change in the interest rate at least 10 days prior to the change. The new interest rate shall be applied to the balance of the loan existing at the date of the change.
Article 1765. The Commission
In addition to interest, the parties may agree on a commission for services provided in connection with the use of the credit.
Article 1766. Current account credit
(1) Credit may be granted by making available to the debtor an amount of money (credit line), which he may use in installments according to his needs.
(2) The interest on the current account loan is calculated based on the amount of the loan actually used in a certain period.
Article 1767. Loan repayment guarantees
(1) The parties may agree on the establishment of real guarantees (including pledges), personal guarantees (including suretyships) or other guarantees common in banking practice.
(2) If the creditor considers the guarantees for the repayment of the loan to be insufficient, he shall be entitled to request the provision of additional guarantees. In the event of the debtor’s refusal to provide the additional guarantees requested by the creditor, the latter shall be entitled to reduce the amount of the loan in proportion to the reduction in the guarantee or to declare the termination of the credit agreement.
(3) The creditor is obliged to accept the cancellation of security measures that exceed the agreed security limit. This provision does not apply if the security measures only temporarily exceed the agreed security limit.
Article 1768. Refusal to perform the contract
(1) The creditor is entitled to refuse to perform the obligation to make the credit available to the debtor if, after the conclusion of the credit agreement:
a) circumstances have arisen that indicate with certainty the debtor’s future inability to repay the loan;
b) the debtor or the third party violates the obligation to provide guarantees for the repayment of the loan it has assumed or other conditions provided for by the credit agreement for the provision of the loan.
(2) The creditor has the right to refuse to make available the following installments of the credit, if the contract provides for the granting of the credit in installments, if the debtor does not meet the conditions of the contract relating to the previous installment or installments or to the installment to be granted.
(3) The debtor has the right to refuse the credit in part or in full. In this case, he must pay the creditor a fee for making the credit available (non-utilization fee). The provisions of this paragraph do not apply to consumer credit agreements regulated by the Consumer Credit Agreements Act.
(4) The right of refusal provided for in paragraphs (1)-(3) may be exercised only if the party refusing notifies the other party within a reasonable period of time until the moment of performance of the obligations that constitute the object of the refusal.
Article 1769. Termination of the credit agreement
(1) The creditor may terminate the contract and request the return of the credit and the related amounts if:
a) the debtor has become insolvent;
b) the debtor did not provide the required guarantees or reduced the guarantees provided without the creditor’s consent;
c) the debtor does not pay the interest within the established term;
d) the debtor has not fulfilled the obligation to repay at least 2 installments of the loan, when the contract provides for the repayment of the loan in installments;
e) there are other cases provided for by law or contract.
(2) The termination of the contract immediately suspends the use of the credit, but the creditor will grant the debtor a term of at least 15 days to return the amounts used and the related amounts.
(3) The debtor may, at any time, declare the termination of the credit agreement, which provides for the payment of a fluctuating interest, provided that the creditor is notified within 7 days of receiving the notification of the change in interest.
(4) The debtor may terminate the contract in which a fixed interest rate for a certain term has been agreed upon if the obligation to pay the interest ceases before the term established for the repayment of the credit and no other interest rate is agreed upon. The notice period is 15 days.
(5) The resolution for the reason indicated in paragraph (1) letter d) takes effect only when the creditor has granted the debtor a 15-day period for payment of the outstanding amount, and the payment has not been made.
Article 1770. Liability of the debtor
(1) If the credit agreement has been terminated due to the debtor’s unjustified failure to perform his obligations, the bank or non-bank credit organization shall not be entitled to claim the interest that it will miss due to the early termination of the credit agreement. This rule shall not prevent the bank or non-bank credit organization from claiming compensation for the damage caused in accordance with the provisions of paragraph (2) and, where applicable, the provisions on failure to perform obligations.
(2) The legal provisions regarding the penal clause remain applicable.
Article 1771. Liability of the creditor
In the event of non-performance by the bank or non-bank lending organization of its obligation to grant credit, the debtor may claim payment of late payment penalties in the manner and amount provided by law or contract.
Article 1772. Compensation for damage in case of early repayment of the loan
(1) If the debtor repays the loan in full or in part before the due date, the creditor shall be entitled to claim compensation for the damage caused by the early repayment, with the deduction of the amounts saved, taking into account the credit that could have been granted from these means. When calculating the damage, account shall be taken of both the creditor’s lost income and the expenses avoided by the debtor by the early repayment of the loan.
(2) The parties may agree on an early payment fee that will compensate for the damage caused by the early repayment.
Article 1773. Assignment of the credit agreement
(1) The creditor may assign the credit agreement to a bank or non-bank credit organization with its headquarters or branch in the Republic of Moldova without the consent of the other contracting party. Simultaneously with the assignment of the credit agreement, the creditor may also assign, in whole or in part, the guarantees and other ancillary rights established in connection with the obligations assumed under the credit agreement, without the consent of the other contracting party and/or the third parties that established them.
(2) The assignee shall be subrogated to the rights and obligations of the assignor arising from the credit agreement, from the guarantees and from other ancillary rights assigned together with it, in the form in which they existed on the date of the substitution of the contracting party. The original creditor shall be released from its obligations towards the assigned contracting party from the moment of notification of the substitution in accordance with paragraph (4) of this article.
(3) The assigned contracting party has the right to invoke against the assignee any means of defense to which it could resort against the original creditor.
(4) For enforceability, the assigning creditor shall inform the other contracting party and third parties who have provided guarantees and other ancillary rights in relation to the obligations assumed under the credit agreement, regarding the assignment, within 10 calendar days from the conclusion of the assignment agreement, by registered letter with acknowledgment of receipt.
(5) This article does not apply to contracts that have as their object only the assignment of receivables or only the assumption of debt, in their case the provisions of articles 823-848 being applicable.
(6) The assignment of the credit agreement cannot prejudice the debtor’s rights and cannot make his obligation more onerous.
Section 5
Bank guarantee
Article 1774. Bank guarantee
(1) A bank guarantee is a written commitment, assumed by a bank or other financial institution (guarantor), at the request of another person (authorizing party), to pay the authorizing party’s creditor (beneficiary) an amount of money based on the beneficiary’s written request.
(2) If the text of the bank guarantee expressly provides that it is governed by certain published uniform usages and practices, the provisions of this code shall apply only to the extent that they do not contradict those usages and practices.
Article 1775. Legal regime of bank guarantee
(1) Unless otherwise expressly provided or clearly evident from the text of the bank guarantee, the bank guarantee shall be considered an independent personal guarantee upon first demand assumed by a unilateral juridical act.
(2) The legal provisions regarding personal guarantees shall apply accordingly.
Article 1776. Contract on the release of collateral
banking
(1) The rights and obligations of the authorizing officer and the guarantor regarding the remuneration of the guarantor, the issuance of the bank guarantee, its performance, the guarantor’s right of recourse and other related matters may be agreed upon by contract between the authorizing officer and the guarantor (the contract regarding the issuance of the bank guarantee).
(2) The guarantor’s claims against the authorizing officer may be secured by real and personal guarantees.
(3) The guarantor and the authorizing officer may not invoke against the beneficiary exceptions based on the contract regarding the release of the bank guarantee.
Section 6
Payment order
Article 1777. Payment order
(1) The payment order (payment order), related to the credit transfer, is the order given by a person (ordering party) to a bank (ordering bank) to pay a certain amount in favor of another person (beneficiary) to settle a monetary obligation of the orderer towards the beneficiary.
(2) The provisions of this section shall apply accordingly to payment orders given to a payment service provider other than the bank.
Article 1778. Performance of the payment order
(1) The ordering bank executes the payment order by transferring the indicated amount from the ordering bank’s account to the beneficiary’s account in the same or another bank.
(2) The bank will execute the payment order within the term established by law, by agreement of the parties or by banking practices.
(3) The authorizing party may revoke or modify the payment order until the bank receives it for performance.
Article 1779. Content of the payment order
The payment order includes:
a) the name or designation, bank account number of the authorizing party (payer);
b) the name or designation, bank account number of the beneficiary;
c) name, code of the ordering bank;
d) the amount in figures and words;
e) destination of the payment;
f) date of issue;
g) signature of the authorized person(s) of the authorizing officer;
h) other data, according to the regulations of the National Bank of Moldova.
Section 7
Making payments by check
Article 1780. Check
(1) A check is a negotiable instrument that represents a written claim, drawn up in accordance with the provisions of the law, comprising the unconditional order given by the issuer (drawer) to the payer (drawee) to pay a certain amount on sight to the presenter of the check or to the person indicated in the check, or to the order of this person.
(2) The check is independent of the transaction underlying the claim paid by check.
(3) Making payments by check is regulated by this code, other laws and banking practices.
Article 1781. Check details
(1) The check includes:
a) the name “cheque”, inserted in the title;
b) simple and unconditional proposal to pay a specified amount to the presenter of the check or to the person indicated in the check, or to the order of this person;
c) the name or denomination and the domicile or registered office of the drawee;
d) place of payment;
e) date and place of issuance;
f) the name or designation, domicile or registered office of the drawer;
g) the signature of the shooter.
(2) A document lacking one of the listed conditions does not have the value of a check, except in the following cases:
a) in the absence of a special mention, the place indicated next to the name of the drawee is considered the place of payment. If several places are indicated next to the name of the drawee, the check is payable in the place indicated first. If any of the listed mentions is missing, the check is payable at the place of residence, headquarters of the drawee;
b) a check that does not indicate the place where it is issued is considered signed in the place indicated next to the name or designation of the drawer.
(3) Any mention in the check regarding acceptance, interest or the exemption of the drawer from liability for making the payment shall be considered unwritten.
Article 1782. Amount of the check
If the payment amount written in words on the check differs from the amount written in figures, the payment amount is the one written in words. If the payment amount is written more than once either in words or in figures, in case of divergence, the payment amount is the smaller amount.
Article 1783. Signatures on the check
(1) If the check bears the signatures of persons incapable of binding themselves by the draft, if it bears false signatures or the signatures of imaginary persons, the obligations of the other signatories shall nevertheless remain valid.
(2) A person who signs a check as a representative of a person for whom he has no power of attorney is personally bound by the check and, if he has paid, has the same rights as the person purportedly represented. The same rule applies to a representative who has exceeded his powers.
Article 1784. Issuance of a check
(1) The check may be issued:
a) in favor of a person, with the words “to the order of”, “to our order” or equivalent words, or without them (check to order). The check may be issued to the order of the drawer;
b) in favor of a person, with the mention “not to order” or another equivalent mention (nominal check). A nominative check cannot be issued in favor of the drawer, except for a check issued by a branch of the drawer in favor of another branch;
c) in favor of the presenter of the check (bearer check). A check issued in favor of a person with the words “or bearer” is considered a bearer check. A check without the mention of the beneficiary is considered a bearer check.
(2) A check may only be issued against a drawee for which the drawer has made a deposit (provision) which he may dispose of, in accordance with an express or tacit agreement, including the form of issuance of checks. Violation of this rule, however, does not affect the validity of the check.
(3) If the check that was not completed at the time of issuance is completed contrary to the agreement between the parties, the failure to comply with this agreement is not enforceable against the check holder, except in the case where the holder obtained it in bad faith or through gross negligence.
Article 1785. Transmission of the check
(1) A promissory check is transmitted by endorsement. The endorsement transfers all the rights of the check holder from the endorser to the holder of the endorsement, who is considered the legitimate possessor if he justifies his right by an uninterrupted series of endorsements, even these being in blank.
(2) The endorser is liable for the payment of the check, except for the persons to whom the check was transmitted by endorsement after the endorser prohibited a new endorsement.
(3) The endorser is obliged to indicate the date of writing the endorsement.
(4) The nominative check is transmitted in accordance with the forms of a simple assignment and having its effects.
Article 1786. Endorsement
(1) The endorsement must be simple and unconditional. Any condition inserted in the text of the endorsement is considered unwritten.
(2) The endorsement may be made in favor of the drawer or of any other obligated person. These persons may, in turn, endorse the check again.
(3) The partial endorsement and the endorsement signed by the drawee are void.
(4) The endorsement shall be written on the check (verso) or on the slip (the sheet attached to the check). The endorsement must be signed by the endorser.
Article 1787. Blank endorsement
(1) The endorsement may not designate the person in whose favor it is given and may contain on the check (verso) or on the side only the dates and signature of the endorser (blank endorsement).
(2) A bearer endorsement is considered a blank endorsement.
Article 1788. Endorsement by proxy
If the endorsement includes the words “for collection”, “as authorized” or any other wording that implies an assignment to collect the check, the holder may exercise all the rights arising from the check, but may endorse it only at the order of the endorser (endorsement by proxy). In this case, the persons responsible for paying the check may only oppose the holder to the exceptions that would be opposable to the endorser.
Article 1789. Endorsement after protest or maturity
An endorsement made after a protest or any similar act, or after the expiry of the period for presentation of the check, has the effects of a simple assignment. Until proven otherwise, an undated endorsement is deemed to have been made up to the date of the protest or any similar act, or up to the date of the expiry of the period for presentation of the check.
Article 1790. Dispossession
If the check has left a person’s possession, its new holder is obliged to return it only if he received it through bad will or gross negligence.
Article 1791. Endorsement
(1) Payment of the check, in part or in full, may be guaranteed by a guarantee (guarantee), given by a third party or even by a signatory of the check (guarantor).
(2) The endorsement is given on the check (verso) or on the promissory note. It is expressed by the words “to be considered as an endorsement”, “as an endorser for..” or by any other equivalent. The endorser indicates the amount of the endorsement, the name, domicile (headquarters) and the person for whom he is obligated and signs the endorsement. If the person for whom the endorsement is given is not indicated, it is considered given for the drawer.
(3) The guarantor is liable like all persons obligated by the check. The guarantor’s obligation is valid even if the obligation he guaranteed is void for any reason.
(4) When paying the check, the guarantor acquires the rights arising from the check against the person for whom he guaranteed, as well as against those who, according to the check, are obligated to the person in whose favor the check is endorsed.
Article 1792. Payment by check
(1) A check is payable at sight. Any indication to the contrary shall be deemed to be unwritten. A check presented for payment before the date of issue indicated in the check shall be paid upon presentation.
(2) The deadline for presenting the check for payment is 8 days. The deadline begins to run from the moment the check is issued.
Article 1793. Revocation of the check
(1) The revocation of the check is valid only after the expiry of the deadline for presentation for payment.
(2) If the check is not revoked, the drawee may make the payment even after the expiry of the deadline for presentation for payment.
(3) The death or establishment of a judicial protection measure regarding the drawer, occurring within the term for presentation for payment, does not affect the validity of the check.
Article 1794. The rights of the drawee
(1) The drawee may request a copy of the check upon payment to its holder and request from him written confirmation of receipt of the amount paid.
(2) Partial payments may not be refused. In the case of partial payments, the drawee may request written confirmation from the holder of the check that the partial payment has been made.
Article 1795. Holder’s rights in case of non-payment of the check
(1) The holder of the check may exercise the right of action against the drawer, the endorser and the other obligated parties if the check presented within the legal deadline is not paid and the refusal to pay is proven:
a) by formulating an authentic act (protest);
b) by a statement of the drawee, indicating the date of the statement and the date of presentation of the check for payment.
(2) The protest or any other similar act must be drawn up before the expiry of the period for presenting the check for payment. If the check is presented on the last day of the period, the protest or any other similar act may be drawn up on the second working day.
Article 1796. Notification obligations
(1) The holder of the check must notify the endorser and the drawer of the check of the refusal to pay within 4 working days following the day of drawing up the protest or other equivalent document, and in the case of the mention in the check “circulation without delay”, on the day following the day of presentation of the check.
(2) Each endorser shall notify, within 2 business days, the previous endorser (from whom he received the check), and in the event that the obligation of the previous endorser is secured by endorsement, he shall also notify the respective endorser of the notification received, indicating the name or designation and address of those who signed the previous endorsements, until the information about the non-payment is sent to the drawer.
(3) Failure to send the aforementioned notices does not deprive the person of his right resulting from the check. However, this person is liable for the damage that may be caused by the failure to comply with the notification obligation (but not more than the value of the check).
Article 1797. The mention “without protest”
(1) The holder of the check, the endorser or the guarantor have the right, by inserting in the check the words “circulation without delay”, “without protest” or another similar wording, signed by them, to release the subsequent holders of the check from the obligation to draw up a protest or any other similar act necessary for the exercise of the right of recourse. If inserted by the drawer, the respective wording is applicable to all persons who signed the check, and if inserted by the endorser or guarantor, the wording is applicable only to those who signed it.
(2) The mention provided for in paragraph (1) does not release the holders of the check from the notification obligation.
(3) If, despite the mention, the holder of the check draws up a protest or other similar act, he shall bear the related expenses.
Article 1798. Liability of participants for payments
by check
(1) All persons liable under a check are jointly and severally liable to the holder of the check and to any person who has applied to the check the indication of payment of the check, signed by the payer. An action brought against one of the persons liable under the check shall not constitute an obstacle to the initiation of an action against the other jointly and severally liable debtors.
(2) The holder of the check may request the person against whom the juridical action is brought to pay:
a) the unpaid value of the check;
b) 6% interest for the period of non-payment;
c) expenses for drawing up the protest or another similar document, for sending notifications, and other expenses related to the juridical action.
(3) The person who paid the check may request payment from the other debtors:
a) the amount he paid into the check account;
b) 6% interest for the period that has elapsed since the moment of payment;
c) expenses related to the payment of the check.
(4) Any person against whom a recourse action is brought under the provisions of paragraphs (1)-(3) may make payment of the cheque conditional upon receipt from the person who brought the recourse action of the cheque with the protest or any other similar document (if applicable) and written confirmation that he has received payment on account of the cheque. Any endorser who has paid the cheque may cancel his endorsement and subsequent endorsements from the cheque.
(5) The limitation period of 6 months shall apply to juridical actions brought for the recovery of the amounts referred to in paragraphs (2) and (3). The interruption of the limitation period shall apply only to the person in respect of whom there are grounds for it.
Article 1799. Impediment
(1) If the presentation of the check for payment, the drawing up of the protest or another similar act within the prescribed time limits are prevented by an impediment provided for in art. 904, the said time limits shall be extended for the duration of the action of this event, provided that the holder of the check notifies his endorser of the occurrence of the impediment provided for in art. 904 and provided that the mention, written on the check form, of the performance of this notification.
(2) In the event of the occurrence of the impediment provided for in art. 904, the provisions of art. 1796 shall apply to the performance of the obligation to notify persons participating in settlements by check.
(3) If the duration of the impediment provided for in art. 904 exceeds 15 days from the due date, the right of recourse may be exercised without presenting the check or without the condition of drawing up a protest or any similar act.
Section 8
Making payments by bill of exchange and promissory note
Article 1800. Bill of exchange (draft) and promissory note
(1) A bill of exchange (promissory note) is a credit instrument that represents a written claim, drawn up in accordance with the provisions of the law, comprising the unconditional order given by the drawer (issuer) to the drawee (payer) to pay immediately or at maturity a certain amount to the bearer of the bill of exchange or to the person indicated in the bill of exchange, or to the order of this person.
(2) A promissory note is a credit instrument, drawn up in accordance with the provisions of the law, by which the drawer undertakes to pay immediately or at maturity a certain amount to the bearer of the instrument or to the person indicated in the instrument, or to the order of this person.
(3) The bill of exchange and the promissory note are independent of the juridical acts underlying the claims paid through them.
(4) Making payments by bill of exchange and promissory note are regulated by this code, the Bill of Exchange Law and other normative acts, as well as by banking practices.
Section 9
Making payments by documentary letter of credit
Article 1801. Documentary letter of credit
(1) A documentary letter of credit is an arrangement, however called or described, by which a bank (the issuing bank), acting at the request of its customer (the applicant) and on his instructions or in its own name, makes a payment to or to the order of a third party (the beneficiary) or accepts and pays bills of exchange drawn by the beneficiary, or authorizes another bank to make such payment or to accept and pay such bills of exchange.
(2) A documentary letter of credit is a contract separate from the juridical act on which it is based. In transactions based on a letter of credit, all parties involved deal with documents and not with goods, services or other benefits to which the documents may refer.
(3) Making payments by documentary letter of credit is regulated by this code, other normative acts, as well as banking practices.
(4) If the text of the letter of credit expressly provides that it is governed by certain published uniform usages and practices, the provisions of this code shall apply only to the extent that they do not contradict those usages and practices.
Article 1802. Irrevocability of the letter of credit
(1) The letter of credit is irrevocable.
(2) A letter of credit is a firm commitment of the issuing bank, provided that the stipulated documents are presented to the nominated bank or the issuing bank and are in accordance with the terms and conditions of the letter of credit. A letter of credit may be amended or revoked without the consent of the issuing bank, the confirming bank, if any, and the beneficiary only in the cases provided for in this Code.
Article 1803. Use of letter of credit
(1) The letter of credit must clearly indicate whether it is usable by sight payment, deferred payment or acceptance.
(2) Unless the letter of credit stipulates that it is usable only by the issuing bank, it must designate the bank authorized to pay or to assume an undertaking to make deferred payment or to accept bills of exchange (the nominated bank). Unless the nominated bank is a confirming bank, the designation by the issuing bank does not constitute any commitment on the nominated bank.
(3) Presentation of documents must be made to the issuing bank or the confirming bank, if any, or to any other designated bank.
Article 1804. Confirmation of the letter of credit
(1) The confirmation of a letter of credit by another bank (the confirming bank) on the basis of the authorization or at the request of the issuing bank constitutes a firm commitment of the confirming bank, added to that of the issuing bank, provided that the stipulated documents to be presented to the confirming bank or another designated bank, comply with the terms and conditions of the letter of credit.
(2) If another bank is authorized or requested by the issuing bank to add its confirmation, but is not prepared to do so, it must inform the issuing bank without delay.
(3) The advising bank is not obliged to add its confirmation to the beneficiary’s letter of credit endorsement unless the issuing bank specifies otherwise in the authorization or in the request to add the confirmation.
(4) The confirming bank may choose to advise the beneficiary of an amendment without extending its confirmation to the amended letter of credit, provided that the issuing bank and the beneficiary are informed without delay.
Article 1805. Transferable and Assignable Letter of Credit
(1) A letter of credit may be transferred only if it is expressly designated by the issuing bank as transferable. The fact that the letter of credit does not specify the transferability does not affect the beneficiary’s right to assign any amount to which he is or would be entitled under the letter of credit, in accordance with the provisions of applicable law.
(2) By virtue of the transferable letter of credit, the beneficiary (the first beneficiary) may request the nominated bank to undertake a deferred payment commitment or to accept, or, in the case of free negotiation, to make the letter of credit usable in whole or in part (the transferring bank) for one or more beneficiaries (secondary beneficiaries).
(3) The transferring bank has no obligation to carry out the transfer except to the extent and in the manner expressly agreed to by such bank.
(4) Unless the letter of credit provides otherwise, the transferable letter of credit may be transferred only once.
Section 10
Making payments through documentary collection
Article 1806. Documentary collection
(1) Documentary collection is an arrangement whereby a bank (the remitting bank) undertakes to handle, in accordance with the instructions given by its client (the issuer), financial documents (bills of exchange, promissory notes, checks or other similar instruments used to obtain payment), accompanied by commercial documents (invoices, transport documents, securities, other similar documents that are not financial documents), in order to obtain, including through another bank (the collecting bank), payment or acceptance of the bills of exchange issued or to issue documents against payment or against acceptance of the bills of exchange issued.
(2) Collection instructions must contain information regarding:
a) issuer and drawee (name or designation, address, telex, telephone, fax);
b) the bank from which the collection was received and the presenting bank (SWIFT code, in addition to the required information about the issuer and the drawee);
c) the amount and currency of the collection;
d) list of attached documents and the number of copies for each document;
e) the terms and conditions relating to the method of obtaining payment and acceptance;
f) the expenses to be incurred;
g) interest, if applicable, indicating its rate, duration and calculation period;
h) payment method and form of payment advice;
i) instructions in case of non-payment, non-acceptance or non-confirmation with other instructions.
(3) Documentary collection is a contract separate from the underlying transaction.
(4) Making payments by documentary collection is regulated by this code, other normative acts and banking practices.
(5) If the text of the documentary collection expressly provides that it is governed by certain published uniform customs and practices, the provisions of this code shall apply only to the extent that they do not contradict those customs and practices.
Article 1807. Obligations and responsibility of banks
(1) Banks are not obliged to give effect to a documentary collection or to any collection instruction or subsequent instructions relating to a documentary collection. If a bank has decided, for any reason, not to give effect to a documentary collection or to any collection instruction, it must notify without delay the party from whom it received the collection or instructions.
(2) Documents sent for collection must be accompanied by collection instructions, and banks are authorized to act only in accordance with these instructions and the provisions of this Code. Banks shall not examine documents for the purpose of obtaining instructions.
(3) Apart from the obligation to check the conformity of the documents received with the list in the collection instructions and to notify the issuer without delay in the event of the absence of documents or the presentation of documents other than those listed, the banks have no further obligation in this regard. The presenting bank must verify that the form of acceptance of the bill of exchange is complete and correct, but is not responsible for the authenticity of the signatures or the right to sign of those accepting the bill of exchange.
(4) Banks assume no obligation or responsibility for the authenticity of the documents received.
(5) The bank entrusted with the performance of a documentary collection must advise on its fate in accordance with the instructions of the remitting bank.
Article 1808. Performance of a documentary collection
(1) The bank charged with collecting the amount paid shall present (make available according to the issuer’s instructions) the documents to the person to whom presentation (drawing) must be made in the form in which these documents are received, except in cases where banks are authorized to apply the necessary stamps and seals, to make any necessary endorsements or to apply all the usual identification elements or symbols required by collection operations.
(2) The amounts to be paid shall be made available to the issuer without delay. Unless otherwise agreed, the bank charged with collection shall pay the amounts due only to the remitting bank, even in the event of refusal as provided for in Article 1807, paragraph (1).
(3) Partial payments are permitted under a documentary collection only if so specified in the collection instructions, and the documents are released only after full payment has been made, unless otherwise specified in the collection instructions. In the case of partial payments made in accordance with this paragraph, the presenting bank is not liable for the consequences arising from the late release of the documents. Partial payments shall be made in accordance with the requirements of paragraph (1).
Article 1809. Interest, commissions and expenses
(1) Interest shall be paid only if stipulated in the collection instructions. If the payment of interest, charges and fees is avoided by the drawee, they shall be borne by the issuer. In cases where, according to the collection instructions and this Code, the payment of fees, charges and other expenses must be borne by the issuer, the bank entrusted with the collection shall have the right to recover their value from the bank from which it received the collection instructions, and the remitting bank shall have the right to recover from the issuer any amount so paid, regardless of the fate of the collection. Banks participating in the performance of collection instructions may request advance payment of fees, charges and other expenses and, depending on the receipt of the advance, reserve the right to give or not to give effect to the instructions received.
(2) If the drawee refuses to pay the stipulated interest, the presenting bank may release the documents without charging interest against payment or acceptance of the bills of exchange issued or under other conditions, unless the collection instructions clearly state that the payment of interest cannot be avoided. The presenting bank shall not bear any responsibility for the consequences of the refusal to pay the interest and shall be obliged to notify the remitting bank of the refusal without delay, in the manner provided for in Article 1807.
(3) If the collection instructions provide for the payment of collection fees and commissions by the drawee and the drawee refuses to pay them, the provisions of art. 1807 paragraph (5) shall apply mutatis mutandis.
Section 11
Making payments by bank card
Article 1810. Bank card
(1) A bank card is a payment instrument issued by a bank (issuer) that allows the cardholder to withdraw cash, to transfer amounts of money within the limits of the available funds in his account in the issuing bank or from the account of the credit line granted by it.
(2) The bank card holder may make payments for goods, works and services provided by the person who accepts to be paid by card.
(3) Making payments by bank card is regulated by the provisions of this code, in particular by the regulations regarding the payment order, the current bank account, the current account credit, other normative acts and banking practices.
Chapter XXIV
FACTORING
Article 1811. Factoring contract
(1) By a factoring contract, one party, which is the supplier of goods and services (adherent), undertakes to assign to the other party, which is a factoring company (factor), the receivables that have arisen or will arise in the future from contracts for the sale of goods, provision of services and performance of works to third parties, and the factor assumes at least 2 of the following obligations:
a) financing the member, including through loans and advance payments;
b) keeping accounts receivable;
c) ensuring the performance of summons and debt collection procedures;
d) assuming the risk of the debtor’s insolvency for the receivables taken over (delcredere).
(2) The factoring contract shall be concluded in writing.
(3) The assignment of receivables must be notified to the debtors.
(4) The parties are obliged to specify the size, volume, scope and characteristics of the receivables that are the subject of the contract, as well as the elements for determining the payment amount.
(5) The provisions relating to the assignment of receivables shall apply to the factoring contract to the extent that the provisions of this chapter do not provide otherwise or the essence of factoring does not indicate otherwise.
Article 1812. Obligation to inform
Both parties undertake to provide each other with the necessary information, so that the contract can be carried out in compliance with the interests of each party.
Article 1813. Assigned claims
(1) The contract may provide for the transfer of all the rights of the member or only some of them, deriving from the contracts with the debtors.
(2) The contract may provide for the assignment of existing or future claims, conditional, determined at the time of conclusion of the contract or determinable at the latest at the time of their occurrence.
(3) The clause of the contract by virtue of which future receivables are assigned shall operate their transfer to the factor at the time of their occurrence without the need for a new transfer deed.
Article 1814. Nullity of the prohibition of assignment
The assignment of the member’s claim to the factor may be made even if there is an agreement between the member and the debtor prohibiting such assignment. This provision does not affect the member’s liability to the debtor for damages resulting from the assignment made contrary to the provisions of the contract.
Article 1815. Liability of the adherent
(1) The member is responsible for the existence of the receivables, as well as for the fulfillment of the contractual obligations towards the debtor.
(2) The member is liable for the debtor’s payment capacity, if the risk has not been assumed by the factor according to art. 1811 paragraph (1) letter d).
Article 1816. Payment due to the factor. Guarantee
(1) The contract is void if it does not expressly provide for the amount to be paid to the factor. The amount is calculated according to the circumstances, with particular emphasis on any delcredere tax and, additionally, on the percentage representing the total withholdings from the assigned receivables.
(2) To the extent that the factor requires a portion of the amount of the receivable as security to cover the risks related to the performance of the contract, the latter must expressly provide for the content and amount of the security. The security may not exceed 20% of the amount of the receivable.
Article 1817. Security rights against the debtor
The rights and guarantees of the member towards the debtor pass to the factor upon the conclusion of the transfer of the receivable to the factor, to the extent that this is provided for in the factoring contract.
Article 1818. Debtor’s objections
(1) The debtor may raise against the factor all objections and exceptions he has against the adherent.
(2) The debtor may request the factor to offset his claim against the member if this claim was due at the time of the transfer of the claim to the factor.
(3) In the cases provided for in paragraphs (1) and (2), the member shall be liable to the factor for the losses. For additional damages, the member shall be obliged to pay compensation only if they were caused through fault.
Article 1819. The debtor’s right of recourse
If the debtor has paid the factor, and the latter has paid the adherent, the debtor will have the right to claim compensation for the damage only from the adherent if the latter does not fulfill its obligations according to the contractual clauses, but not from the factor, except in cases where the latter paid the adherent, although he knew that he had not fulfilled his obligations according to the contractual conditions.
Article 1820. Open or covered factoring
(1) The factoring contract may provide for the obligation and right of the parties to inform the debtor about the transfer of the receivable, as well as the methods by which he must be informed.
(2) If the debtor has not been notified of the transfer of the claim and of the nature of the claim, the factor may object to the debtor’s payment to the member. In this case, the member is obliged to immediately hand over the amount obtained to the factor. The provisions of this paragraph shall apply accordingly to multiple transfers of the same claim.
(3) The debtor’s payment to the factor has the effect of exoneration, regardless of the fulfillment of the notification obligation, except in the case where the debtor became aware of the invalidity of the transfer.
Article 1821. Other assignments
If the factor, in turn, assigns the receivables taken over from the adherent, the provisions of this chapter shall apply accordingly, the last assignee being considered the factor.
Chapter XXV
INSURANCE 2
Section 1
Common provisions
Article 1822. Insurance contract
(1) By an insurance contract, one party (the insurance contractor) undertakes to pay the other party (the insurer) the insurance premium, and the insurer undertakes to pay the insured, the insurance beneficiary or, as the case may be, the injured third party a monetary benefit (insurance compensation or indemnity) upon the occurrence of the insured event within the insurance period.
(2) Any clause that derogates from the provisions of this chapter to the detriment of the contractor, the insured or the consumer beneficiary is absolutely null and void.
Article 1823. Classes and types of insurance
The classes and types of insurance are established by special law.
Article 1824. Insurance of fixed amounts
(1) Fixed sum insurance includes life insurance and other insurance.
(2) In the case of fixed sum insurance, the insurer is obliged to pay a fixed sum of money upon the occurrence of the insured event. The amount paid by the insurer under this insurance is called the insurance indemnity.
(3) In fixed sum insurance, the beneficiary is the person for whose benefit the insurance indemnity is paid.
(4) In the case of multiple insurance, the beneficiary is entitled to the full insurance indemnity under each concluded contract.
Article 1825. Plurality of subjects
The insurance contract may stipulate one or more insured persons, beneficiaries or insured persons.
Article 1826. Co-insurance
(1) Co-insurance is the operation by which two or more insurers cover the same risk, each assuming a share of it.
(2) Each co-insurer is liable to the insured only within the limit of the amount for which it has committed itself under the contract.
Article 1827. Reinsurance
(1) By concluding the reinsurance contract:
a) the reinsurer receives reinsurance premiums, in exchange for which it contributes, according to the obligations assumed, to the bearing of the insurance compensation that the reinsured pays upon the occurrence of the event that constituted the object of the reinsurance;
b) the insurer, as reinsured, cedes reinsurance premiums, in exchange for which the reinsurer contributes, according to the obligations assumed, to bearing the insurance compensation that the reinsured pays upon the occurrence of the insured event under the insurance contract.
(2) The reinsurance contract shall be effective only between the insurer and the reinsurer.
Article 1828. Non-discrimination
(1) The use of gender (including pregnancy or maternity status) as a factor in calculating premiums and benefits must not lead to the creation of differences in terms of premiums charged and benefits provided, with the exceptions provided for by regulatory acts in the field of insurance.
(2) Race, colour, nationality, ethnic origin, language, religion or belief, opinion or political affiliation may not constitute factors leading to differences in the premiums charged to individuals and the benefits due to them.
(3) If the insurance contract contains conditions that violate the requirements set out in paragraph (1) or (2), these conditions shall be replaced by non-discriminatory conditions. Any contrary clause shall be null and void.
(4) If the insurance contract contains conditions that violate the requirements set out in paragraph (1) or (2), the policyholder is entitled to terminate the insurance. The notice of termination must be communicated to the insurer no later than 2 months after the policyholder became aware of the violation.
Article 1829. Insured risk and insured event
(1) The insured risk is one or more future, possible but uncertain events or phenomena, provided for by the insurance contract, to which the life, health or property of a person are exposed.
(2) It is prohibited to insure:
a) illicit interests;
b) damage suffered through participation in lotteries, games and bets;
c) any expenses to which the person may be subject for the purpose of releasing the hostages.
(3) The insured event consists of the occurrence of the insured risk which gives rise to the insurer’s obligation to pay the insurance indemnity or compensation.
Article 1830. Conclusion of the insurance contract
(1) In order to conclude an insurance contract, the insurance contractor shall submit to the insurer an application or a questionnaire (contractor’s application) in written form, in which he indicates his interest in the insurance or declares orally that he wishes to conclude an insurance contract. The verbal declaration shall not exempt him from the need to submit a written insurance application.
(2) The insurance contract shall be concluded in writing.
(3) The insurance contract consists of the contractor’s application, the insurance policy issued by the insurer and the applicable general insurance conditions, as well as other contractual conditions included in the contract according to the law.
(4) The provisions of paragraph (3) do not affect the right of the parties to draw up a single document that will include the entire insurance contract.
(5) The insurance contract cannot be proven with witnesses, even if there is a beginning of written evidence.
(6) If the insurance documents have disappeared due to an event beyond the control of the parties and there is no possibility of obtaining a duplicate, their existence and content may be proven by any means of evidence.
(7) The conclusion of the insurance contract is evidenced by the insurance policy or the insurance certificate issued and signed by the insurer or by the coverage note issued and signed by the insurance broker.
Article 1831. Insurance policy
(1) The insurer is obliged to deliver to the contractor a copy, signed by him, of the insurance policy.
(2) The insurance policy shall indicate:
a) the name or designation, domicile or registered office of the contracting parties;
b) where applicable, the name or denomination, domicile or registered office of the insured and/or beneficiary;
c) where applicable, the name and headquarters of the insurance agent;
d) the object of insurance;
e) the risks being insured;
f) the term of the insurance contract (duration of insurance) and the insurance period;
g) the insured amount and, if agreed, the part of the damage that the insurer does not compensate (deductible);
h) insurance premium, place and terms of payment;
i) other data, according to the law or agreement between the parties.
(3) In the case provided for in art. 1830 paragraph (3), the payment to the insurer of the insurance premium or an installment thereof shall be considered acceptance by the policyholder of the insurance contract.
Article 1832. Obligation to submit documents
(1) The insurer is required to submit, together with the insurance policy, copies of the contractor’s application.
(2) If the terms of the insurance policy differ from those in the policyholder’s application or from any previous agreement between the parties, if the insurer has informed the policyholder in bold text about the right to object to the differences mentioned in the policy, the policyholder will be deemed to have consented to the differences expressly mentioned in the policy if he does not object within one month of receipt of the policy.
(3) The insurer shall bear the burden of proving that the contractor has received the documents to be submitted by the insurer.
Article 1833. Establishment of rights and obligations
in the case of mutual insurance
(1) Persons may insure their property on mutual principles, by association, based on free consent, in mutual insurance companies.
(2) The certificate of participation in a mutual insurance company may establish the rights and obligations of the members by reference to the company’s articles of association.
(3) Each member has the right to obtain a copy of the company’s articles of association.
Article 1834. Opposability of exceptions
If an insurance policy is issued in the name of the insured, to bearer or to order, the insurer may set off against the policyholder all the exceptions that are set off against the original insured. Exceptions may not be set off if the new policyholder informs the insurer in writing of the assignment of the rights resulting from the insurance and the insurer does not immediately communicate the existing exceptions.
Article 1835. Insurance period and duration of insurance
(1) The insurance begins at 1:00 a.m. on the first day and ends at 12:00 p.m. on the last day of the agreed insurance period, unless the law or the contract provides otherwise.
(2) The clause providing that the insurance period begins on a date prior to the conclusion of the contract (retroactive insurance) is valid only if the parties were not aware, at the time of conclusion of the contract, of the occurrence of the insured event. If the contracting party was aware, at that time, of the occurrence of the insured event, the insurer is not obliged to compensate for that event.
(3) If the insurance contract is concluded for a duration of more than 5 years, each party has the right to terminate the insurance at the end of the fifth year or each of the following years, respecting a notice period of 3 months.
(4) In the case of contracts concluded for an unlimited duration, each party has the right to terminate the insurance, respecting a notice period of at least one month and no more than 3 months.
(5) The agreement by which the insurance contract is considered tacitly extended for a period longer than one year is considered null and void.
(6) The insurance period is the time interval during which the insurer is liable and for which the insurance premium is established.
Article 1836. Increase in insurance premium
If the insurer, based on a contractual clause regarding the update of the insurance premium, increases its amount, the contractor has the right to terminate the insurance, subject to a one-month notice period. Increases that do not exceed 10% of the insurance premium do not entitle the contractor to terminate the insurance if the contractor is a business.
Article 1837. Obligation to inform
(1) Upon conclusion of the contract, the insurance applicant must inform the insurer of the circumstances that he knows or should know and that are the subject of clear and precise questions asked by the insurer.
(2) The circumstances provided for in paragraph (1) also include those that the person to be insured knows or should know.
Article 1838. Violation of the obligation to inform
(1) If the policyholder has breached the obligation provided for in art. 1837, the insurer has the right, under the terms of this article, to propose a reasonable amendment to the terms of the contract or to declare the termination of the insurance. To this end, the insurer shall notify its intention in writing, accompanied by information on the legal consequences of its decision, within one month after it has become aware of or indications of the breach of the obligation provided for in art. 1837 appear.
(2) If the insurer proposes a reasonable amendment, the contract shall continue on the basis of the proposed amendment unless the policyholder rejects the proposal within one month of receipt of the notification referred to in paragraph (1). In the event of rejection, the insurer shall be entitled to terminate the insurance within one month of receipt of the written notification of rejection from the policyholder.
(3) The insurer is not entitled to terminate the insurance if the policyholder has breached the obligation provided for in art. 1837 without fault, unless the insurer proves that he would not have concluded the insurance contract if he had known that information.
(4) The termination of the insurance shall take effect after the expiry of a period of one month from the receipt by the contractor of the notification provided for in paragraph (1). The amendment shall take effect in accordance with the agreement of the parties.
(5) If an insured event is caused by an element of the risk that falls under the obligation provided for in art. 1837, but has not been disclosed, and the insured event occurs before the termination or amendment takes effect, the insurer shall not be obliged to indemnify or compensate on the basis of that event if it proves that it would not have concluded the insurance contract if it had known that information. However, if the insurer had concluded the contract with a higher premium or on different conditions, the indemnity or compensation shall be paid proportionally or according to those different conditions.
Article 1839. Exclusion of liability for
violation of the obligation to inform
The consequences provided for in art. 1838 do not apply to:
a) a question that remained unanswered or information provided that was obviously incomplete or incorrect;
b) information that should have been disclosed or information incorrectly provided, which was not essential for the decision of a reasonable insurer to conclude the contract in general or to conclude it under these conditions;
c) information regarding which the insurer led the policyholder to believe that it should not be provided;
d) information that the insurer knew or should have known.
Article 1840. Mourning
(1) The provisions of articles 1838 and 1839 do not prevent the insurer from requesting the nullity of the insurance contract for fraud. In this case, the limitation period is 3 months from the date on which the insurer became aware of the fraud.
(2) The insurer is not obliged to refund the premiums collected under the insurance contract cancelled on the grounds of fraud.
Article 1841. Other information communicated
The provisions of art. 1838-1840 shall apply accordingly also with regard to the information provided by the contractor, at the time of concluding the insurance contract, in addition to that to which he was obliged according to art. 1837.
Article 1842. Precautionary clause
(1) The clause of an insurance contract establishes precautionary measures when that clause, formulated as an obligation or as a condition for the payment of the indemnity or compensation by the insurer, requires the contractor or the insured, before the occurrence of the insured event, to perform or refrain from certain actions that are not related to the payment of the insurance premium.
(2) If the insurance contract provides that, in the event of failure to comply with the precautionary measure, the insurer has the right to terminate the insurance, then the respective clause may be invoked only if the contractor or, as the case may be, the insured has failed to comply with them with the intention of causing damage or through gross negligence, but knowing that there is a probability that damage will occur. The insurer shall forfeit the right to terminate if it does not exercise it within one month of the moment when it learned or indications appear that the precautionary measure has not been complied with.
(3) If the insurance contract provides that, in the event of failure to comply with the precautionary measure, the insurer is totally or partially released from liability, then the respective clause may be invoked only to the extent that the damage was caused by the failure to comply with it by the contractor or, as the case may be, the insured with the intention of causing damage or through gross negligence, if he knew or should have known that there was a probability that the damage would occur.
(4) The contractor or, as the case may be, the insured shall be entitled to compensation or insurance indemnity even when the damage is caused by the negligent failure to comply with the precautionary measure. The clause excluding liability also in case of negligence of the contractor or, as the case may be, of the insured for the failure to comply with the precautionary measure may be invoked if it is clearly expressed.
Article 1843. Aggravation of risk
(1) If the insurance contract includes a clause regarding the aggravation of the insured risk, that clause may be invoked only if the aggravation of the risk is essential and is for a risk provided for by the insurance contract.
(2) If a clause regarding the aggravation of the insured risk obliges the contractor, the insured or, as the case may be, the beneficiary of the insurance to inform about the aggravation, he is obliged to inform only if he knew or should have known about the aggravation of the risk. The obligation is also considered fulfilled when the information is provided by a third party.
(3) If the clause requires that the information be provided within a specific time limit, the time limit must be reasonable. The information shall be deemed to have been provided within the time limit if it has been sent within the time limit.
(4) In the event of a breach of the obligation to provide information, the insurer shall not be entitled to refuse, on this basis, to pay the damage caused by a case covered by the insurance, except in the case where the damage was caused by the aggravation of the risk. Other damage caused by cases covered by the insurance shall be compensated in accordance with art. 1844 para. (3).
Article 1844. Sanctions in case of aggravation of risk
(1) If the contract provides that, in the event of a worsening of the insured risk, the insurer has the right to terminate the insurance, this right may be exercised, by notification addressed to the contractor, within one month from the moment the insurer became aware of the worsening or indications thereof.
(2) The insurance period shall terminate upon the expiry of a period of one month from the receipt of the declaration of termination, and if the contractor has committed an intentional breach of the obligation provided for in art. 1843, on the date of receipt of the notification of termination.
(3) If the insured event is caused by an aggravated risk of which the policyholder knew or should have known before the end of the insurance period, the insurance indemnity or compensation shall not be paid if the insurer had not insured the aggravated risk at all. However, unless the insurance contract provides otherwise and the insurer had insured the aggravated risk at a higher premium or under different conditions, the insurance indemnity or compensation shall be paid proportionally or in accordance with those different conditions.
Article 1845. Risk reduction
(1) If there has been a significant reduction in the insured risk, the policyholder has the right to request a proportional reduction in the premium for the remaining insurance period.
(2) If the parties cannot agree on a proportional reduction within one month of receipt of the request by the insurer, the policyholder has the right to terminate the insurance.
The contractor loses the right to termination if he does not exercise it within 2 months of receipt of the request by the insurer.
Article 1846. Payment of insurance premium
(1) The contractor is obliged to pay the insurance premium only upon issuance of the insurance policy.
(2) If the insured interest does not exist at the date of commencement of the insurance or if a future interest fails to be established, the policyholder is released from the obligation to pay the insurance premium. If the insured interest extinguishes, the policyholder owes the insurer only that part of the premium corresponding to the duration of the risk. The insurer may charge an appropriate fee for the expenses and operations carried out for the conclusion of the contract.
Article 1847. Failure to pay the premium before the start of the
insurance period
(1) If the insurance contract contains a clause according to which the payment of the insurance premium or the payment of the first installment of the insurance premium is a suspensive condition for the entire contract to produce legal effects or a condition for the commencement of the insurance period, that clause may be invoked by the insurer only if:
a) is included in the insurance contract in clear language and warns the insurance applicant that the risk is not assumed by the insurer until the premium is paid; and
b) payment was not made within 3 working days of the due date.
(2) If the conditions of paragraph (1) of this article are met, the insurance period shall begin to run only from the moment the respective premium or installment has been paid, except in the case where the insurance has been terminated in accordance with art. 1849.
Article 1848. Non-payment of premium after commencement
insurance period
(1) If the insurance contract contains a clause according to which the insurance period is suspended or the insurer is otherwise released from liability as long as the premium or an installment of the premium is not paid after the insurance period has begun, that clause may be invoked only if:
a) after the amount is due, the insurer sends a warning to the policyholder, specifying the exact amount of the premium due, granting an additional period of at least 2 weeks from the date of dispatch and informing him of the imminent suspension of the insurance period if full payment is not made; and
b) the payment was not made within the additional period provided for in letter a).
(2) The insurance period is suspended after the expiry of the additional term provided for in paragraph (1) letter a) of this article. The insurance period will only resume for the future as soon as the contractor pays the amount due, except in the case where the termination of the insurance has taken effect in accordance with art. 1849.
Article 1849. Suspension of the insurance period
and the resolution of the insurance
(1) The insurer does not owe the insurance indemnity or compensation if the insured event occurred outside the insurance period or during the suspension of the insurance period, even if the event was detected at a time within the insurance period.
(2) Upon expiry of the term provided for in art. 1847 paragraph (1) letter b) or, as the case may be, art. 1848 paragraph (1) letter a), without the premium having been paid, the insurer shall have the right to terminate the insurance, provided that the notifications regarding the legal effects provided for in the same articles additionally provide that the insurer shall have the right to terminate the insurance.
(3) The insurance shall be terminated by operation of law if the insurer does not file an action for compulsory payment of the premium or the premium installment within 2 months from the expiry of the term provided for in art. 1847 paragraph (1) letter b) or, as the case may be, art. 1848 paragraph (1) letter a).
Article 1850. Declaration and effects of resolution
(1) The insurer declares the termination by declaration to the contractor even if another person has the status of insured or beneficiary of the insurance.
(2) In the event of termination of the insurance, the insurer is only entitled to the premium attributable to the insurance period that actually ran before the date of termination. However, in the event of termination of the insurance, the insurer shall retain the premium for the entire insurance period if an insurance event has occurred and the insurer owes insurance compensation or, as the case may be, insurance indemnity.
(3) If the termination occurred due to the unjustified non-performance of an obligation by one of the parties, the right of the other party to compensation for the damage remains unaffected. In particular, in this case, the insurer may request reimbursement or, as the case may be, may retain the management costs even if the insurance period has not run or has been suspended, and, under the conditions provided for in art. 942, may request interest for delay or penalty on the amounts to which it is entitled after the termination.
(4) The termination of the insurance does not extinguish the insurer’s obligation related to an insured event occurring within the insurance period that actually ran before the date of termination.
Article 1851. Information about the occurrence of the case
insured
(1) The occurrence of the insured event must be notified immediately to the insurer by the contractor, the insured or, as the case may be, the beneficiary, provided that the person obliged to make the notification knew or should have known of the existence of the insurance coverage and the occurrence of the insured event. The obligation is also considered fulfilled if a third party informs the insurer.
(2) If the insurance contract requires that the information be provided within a certain period, this period shall be reasonable. The information shall be deemed to have been provided within the period if it has been sent within the period.
(3) The insurer may not invoke the clause by which it is totally or partially released from its obligation if the information obligation has not been properly fulfilled, except to the extent that, by non-performance, the interests of the insurer are seriously affected.
Article 1852. Cooperation in the investigation of the case
insured
(1) The contractor, the insured or, as the case may be, the insurance beneficiary must cooperate with the insurer in investigating the insured event by fulfilling its reasonable requests, in particular requests for the provision of information about the causes and effects of the insured event, for the provision of other documentary and other evidence of the insured event, as well as for providing access to the place where the insured event occurred.
(2) Except where the provisions of paragraph (3) apply, in the event of a breach of the obligation provided for in paragraph (1), the insurer’s obligation shall be reduced to the extent that the insurer proves that it has been prejudiced by the breach.
(3) In the event of any violation of the provisions of paragraph (1) committed with the intention of causing damage or out of gross negligence, but knowing that there is a probability that the insurer will be damaged, the insurer is released from the obligation to pay the insurance indemnity or compensation.
Article 1853. Examination of the claim for compensation
(1) The insurer shall take all reasonable steps to promptly examine the claim for compensation based on an insured event.
(2) The claim for compensation shall be deemed accepted, unless the insurer rejects it or postpones its examination by written notification specifying the reasons for the decision to reject or postpone, sent within one month, unless the law or the contract provides otherwise, from the receipt of the documents and other information relevant for the examination.
(3) The insurer is entitled to:
a) to participate, in the absence of the insured and independently of his will, in the examination of the circumstances of the insured event;
b) to submit to the relevant institutions inquiries, addresses and petitions that would concern the circumstances of the allegedly insured case;
c) to challenge, as the case may be, in court the decisions adopted regarding the establishment of the insured’s guilt in the occurrence of the insured event. The challenge in court of the decision regarding the establishment of the insured’s guilt does not exclude his guilt until the court decision becomes final, the insurer being obliged to pay the insurance compensation within the term established by law or the insurance contract.
Article 1854. The moment of payment of the benefit by
insurance
(1) The insurer’s benefit is due from the moment of the conclusion of the investigation and ascertainment activity of the insured case and the extent of the insurer’s obligation. If the claim has been accepted, the insurer, without undue delay, will pay or, as the case may be, will perform another benefit provided for by the contract.
(2) If the investigation lasts more than one month, the insured or, as the case may be, the beneficiary of the insurance is entitled to request an advance payment appropriate and proportionate to the probable payment obligation, provided that the insurer’s obligation to pay the indemnity or compensation and its amount are not in doubt. The advance payment shall be made without undue delay.
(3) The payment of the indemnity or insurance compensation, pursuant to paragraph (1) or (2), shall be made no later than one week after the acceptance and quantification of the claim or, as the case may be, of the part thereof.
(4) Agreements by which the insurer is released from the obligation to pay any late payment interest or, as the case may be, penalties are void.
(5) The insurer may offset the due insurance premiums and other amounts due to it under the insurance contract with the amounts claimed from the insurer under the same insurance contract, even if the claimant is a third party. This rule does not apply to compulsory civil liability insurance.
Article 1855. Resolution after the occurrence of the case
insured
(1) The clause providing for the termination of the insurance without any reason after the occurrence of the insured event is valid only if it grants the right to termination to both contracting parties and the insurance is not personal insurance.
(2) Both the termination clause provided for in paragraph (1) and the exercise of the right to terminate must be reasonable.
(3) The right to terminate shall expire if the entitled contracting party has not notified the other contracting party of the termination within 2 months after becoming aware of the occurrence of the insured event.
(4) The resolution takes effect upon the expiration of a period of 2 weeks from the date of communication.
Article 1856. Insurer’s recourse through subrogation
in the rights towards the one obliged to
reparation of damage
(1) The insurer who paid the insurance indemnity, as well as any expenses for mitigating the damage, shall be subrogated, within the limits of this amount, to the right to compensation for the damage against the third party who is obliged to compensate for the damage caused, unless the law or the contract provides otherwise.
(2) To the extent that he has waived a right against that third party in a manner that prejudices the insurer’s right of subrogation, the insured loses his right to compensation in respect of that damage.
(3) The insurer may not exercise the right of recourse based on subrogation against a family member of the contractor or the insured, a person who is in an equivalent social relationship with the contractor or the insured, or an employee of one of them, unless the insurer demonstrates that the damage was caused by that person intentionally or through gross negligence, but knowing that there is a probability that the damage will occur.
(4) The insurer may not exercise rights based on subrogation to the detriment of the insured.
(5) The insurer may fully or partially waive the exercise of the right of subrogation against the person responsible for causing the damage, if he himself has suffered seriously, or against his heirs, if the person has died as a result of the insured risk occurring, as well as in other situations where the circumstances justify the waiver.
Section 2
General insurance
Subsection 1
Common provisions
Article 1857. General notions
(1) General insurance includes damage insurance and other insurance.
(2) Insurance indemnity represents the amount to be paid by the insurer to the insured in order to compensate for the damage suffered as a result of the insured event.
Subsection 2
Damage insurance
§1. Common provisions
Article 1858. General notions
(1) In the case of damage insurance, the insurer is obliged to compensate the damage suffered by the insured or, as the case may be, by the injured third party upon the occurrence of the insured event.
(2) In non-life insurance, the insured is the person whose interest is protected against the loss. The same person may be both the policyholder and the insured.
(3) Any person who has a right of any nature over the property shall be deemed to have a protected interest against damage.
(4) The amount paid by the insurer under this insurance is called insurance indemnity.
(5) Damage insurance includes property insurance, liability insurance, health insurance, credit insurance, guarantees and financial losses insurance, and others.
Article 1859. Maximum amounts that can be paid
(1) The insured amount may not exceed the actual value of the insured property.
(2) The insurer is not obliged to pay more than the amount necessary to repair the damage actually suffered by the insured.
(3) By way of derogation from the provisions of paragraph (1), the parties may provide for a clause establishing an agreed value of the insured property and obliging the insurer to compensate for the damage in the amount of the agreed value even if that value exceeds the actual value of the property, provided that, at the time the value was agreed upon, the contractor or, as the case may be, the insured did not commit fraud or make a false statement.
Article 1860. Adjustment of conditions in case
overinsurance
(1) If the insured amount exceeds the maximum damage that could be caused by the insured risk, either party has the right to request a reduction of the insured amount and a corresponding reduction of the premium for the remaining insurance period, but with the insurer retaining the management expenses.
(2) If the parties do not agree on the reduction within one month of receipt of the request by the other party, either party has the right to terminate the insurance.
Article 1861. Multiple insurance
(1) The contractor must declare the existence of all insurances relating to the same interest, this obligation being incumbent upon him both at the date of conclusion of the insurance contracts and during their performance.
(2) If the same interest is insured separately by several insurers, the insured has the right to submit claims against any one of them or against several of them to the extent necessary to compensate for the actual damage suffered.
(3) The insurer against whom the claim is filed will pay, within the limits and conditions provided for in the contract, together with the reimbursement of any expenses incurred to mitigate the damage, without affecting its right of recourse against other insurers.
(4) In the relations between insurers, the rights and obligations provided for in paragraph (2) shall be proportional to the compensation to which they would have been separately obligated towards the insured if the multiple insurance had not been taken out.
Article 1862. Causing harm
(1) The contractor or, as the case may be, the insured is not entitled to compensation to the extent that the damage was caused by his action or inaction with the intention to cause damage or through gross negligence, but knowing that there is a probability that the damage will occur.
(2) The contractor or, as the case may be, the insured shall be entitled to insurance compensation even when the damage is caused by the action or omission committed through his negligence. The clause excluding the insurer’s liability in case of negligence of the contractor or, as the case may be, of the insured in committing the action or omission may be invoked if it is clearly expressed.
(3) For the purposes of paragraphs (1) and (2), causing damage also includes failure to take measures to avoid or mitigate the damage.
Article 1863. Damage mitigation expenses
(1) The insurer shall reimburse the expenses incurred or the amount of the damage suffered by the contractor or, as the case may be, the insured when taking measures to mitigate the damage suffered, to the extent that the insured, with justification, considered the measures to be reasonable under the circumstances, even if they did not lead to the mitigation of the damage.
(2) The insurer shall compensate the contractor or, as the case may be, the insured in respect of the measures taken pursuant to paragraph (1), even if, together with the insurance compensation for the damage, the total amount due exceeds the insured amount, unless the contract expressly excludes this right.
Article 1864. Rights of the insured
(1) In the case of insurance concluded by the contractor for the benefit of another person (insured), if the insured event occurs, the insured will be entitled to receive the amounts owed by the insurer.
(2) The policyholder has the right to revoke the designation of the insured, unless the policy prohibits it or the insured event has already occurred.
(3) The revocation takes effect from the moment the revocation notification is received by the insurer.
Article 1865. Knowledge by the contractor
of the circumstances relating to the insured
(1) For the purpose of fulfilling the information obligation provided for in art. 1837, unless the contract provides otherwise, it is presumed that the contractor did not need to know the circumstances known or of which the insured should have known.
(2) However, if, at the time when the contractor is obliged to provide the relevant information to the insurer, the insured knew that he was to be named as an insured, it shall be presumed, unless the contract provides otherwise, that the contractor should have known of the circumstances known to the insured or of which he should have known.
Article 1866. Breach of obligation by one
among the insured
Breach of obligation by one of the insured parties does not affect the rights of the other insured parties under the same insurance contract, unless the insured risk is common.
Article 1867. Absence of insured risk
(1) If the insured risk does not exist either at the date of conclusion of the contract or at a later time within the insurance period, the premium is not due. However, the insurer is entitled to recover reasonable expenses incurred.
(2) If the insured risk ceases to exist within the insurance period, the insurance shall be terminated as of right from the moment the insurer is notified of the termination of the insured risk.
§2. Insurance of goods
Article 1868. General notions
(1) In property insurance, the insurer undertakes to pay the insurance indemnity to the insured upon the occurrence of the insured event.
(2) In property insurance, the insured must have a legitimate interest in the insured property.
Article 1869. Examination and verification of the condition of the property
(1) Upon conclusion of the contract, the insurer has the right to examine the goods to ascertain their existence and actual condition.
(2) The insurer has the right to verify the maintenance of the insured property.
Article 1870. Partial insurance
(1) The insurer is required to compensate the entire insured damage within the limit of the insured amount even if the insured amount is lower than the value of the insured property at the time of the insured event.
(2) However, the parties may agree that the compensation due by the insurer shall be reduced in proportion to the ratio between the insured amount and the actual value of the property at the time of the damage (proportional compensation clause). In this case, the costs of mitigating the damage provided for in art. 1863 shall be reimbursed in the same proportion.
(3) The proportional compensation clause may be invoked only if the insurer has additionally mentioned its existence in the text of the insurance policy.
Article 1871. Transfer of ownership
(1) If the ownership of the insured property is transferred, the insurance shall be terminated by operation of law upon the expiry of a period of one month from the date of transfer, unless the policyholder and the acquirer agree on the termination before the expiry of this period. This rule shall not apply if the insurance contract was concluded in favour of a future acquirer.
(2) Until the expiry of the term provided for in paragraph (1), the acquirer of the property shall be considered insured from the moment he assumes the risk of the insured property.
(3) The provisions of paragraphs (1) and (2) shall not apply:
a) if the insurer, the contractor and the acquirer agree otherwise;
b) the transmission of property rights through inheritance.
(4) The policyholder who does not notify the insurer of the alienation that has occurred and the acquirer of the existence of the insurance contract remains obliged to pay the premiums that become due after the date of alienation.
§3. Civil liability insurance
Article 1872. General notions
(1) In the case of civil liability insurance, the insurer undertakes to pay compensation for the damage for which the insured is liable under the law to injured third parties and for the defense costs incurred pursuant to art. 1863.
(2) The parties may include in the insurance contract the civil liability of a person (insured) other than the contractor.
Article 1873. Determination of compensation
Unless otherwise provided by law, compensation shall be determined by agreement concluded between the insurer, the injured third party and, subject to the provisions of art. 1881 paragraph (3), the insured or, in case of disagreement, by court decision.
Article 1874. Cause of damage
(1) The policyholder or, as the case may be, the insured shall not be entitled to compensation to the extent that the damage was caused by his action or inaction committed with the intention of causing that damage. This also includes failure to comply with specific instructions given by the insurer after the damage occurred, if it was committed with serious negligence and knowing that failure to comply with them is likely to aggravate the damage.
(2) For the purposes of paragraph (1), causing damage includes failing to take a measure to avoid or mitigate the damage.
Article 1875. Recognition of liability
(1) The clause in the insurance contract that exempts the insurer from obligations is null and void if the contractor or, as the case may be, the insured recognizes the obligation to repair the damage to the injured third party or satisfies it.
(2) Unless it has consented, the insurer is not bound by the agreement between the injured third party and the contractor or, as the case may be, the insured.
Article 1876. Assignment of claims arising from the policy
The clause in the insurance contract that deprives the insured of the right to assign the right to the compensation resulting from the policy is void.
Article 1877. Right to a statement regarding applications
compensation
The contractor has the right to request at any time a statement regarding claims submitted in the last 5 years related to his insurance policies.
Article 1878. Insured case
(1) The insured event consists of the fact giving rise to the liability of the insured which occurred during the insurance period related to the insurance contract if the parties to the insurance contract for commercial or business purposes do not define the insured event with reference to other criteria, such as the submission of the claim by the injured third party.
(2) Where the contracting parties define the insured event with reference to the submission of the claim by the injured third party, the insurance shall cover claims which are submitted during the insurance period or during an additional period at least equal to the limitation period applicable to the liability and which are based on an event occurring before the expiry of the insurance period. The insurance contract may provide for the exclusion of cover in the event that, at the time of conclusion of the contract, the applicant knew or should have known of the circumstance likely to give rise to the claims.
Article 1879. Claims exceeding the insured amount
(1) If the total payments due to several injured third parties exceed the insured amount, the payments will be reduced proportionally.
(2) The insurer who, unaware of the existence of other injured third parties, has paid compensation in good faith for the benefit of known injured third parties shall be liable to the other injured third parties up to the balance of the insured amount.
Article 1880. Direct claims and exceptions
(1) The rights of injured third parties are exercised against those responsible for repairing the damage.
(2) To the extent that the contractor or, as the case may be, the insured bears civil liability, the injured third party, at his option, may submit a direct claim for compensation for the damage against the insurer under and under the terms of the insurance contract in any of the following cases:
a) whether the insurance is compulsory insurance;
b) if insolvency proceedings are initiated against the contractor or the insured;
c) if the contractor or the insured has been liquidated or is dissolved;
d) if the injured third party suffered bodily injury or died;
e) if the law governing civil liability provides for a direct claim by the injured third party.
(3) The insurer is liable to the injured parties within the limits of its obligations under the insurance contract.
(4) The insurer may raise the exceptions resulting from the insurance contract against the injured third party, unless the legal provisions on compulsory insurance provide otherwise. However, the insurer may not raise an exception based on the conduct of the contractor and/or the insured after the occurrence of the damage.
(5) The insurer shall pay compensation directly to the injured third party to the extent that he has not been compensated by the insured.
(6) If the insured proves that he has compensated the injured third party, the compensation shall be paid to the insured.
Article 1881. Information obligations
(1) At the request of the injured third party, the contractor and the insured are obliged to provide the information necessary for the submission of the direct claim.
(2) The insurer shall be obliged to send the policyholder a written notification of any direct claim submitted to it, without undue delay, but no later than 15 days after receipt of the claim. If the insurer fails to fulfil this obligation, the payment to the injured third party or the acknowledgement of the debt to the injured third party shall not affect the rights of the policyholder.
(3) If the policyholder does not provide the insurer with information about the insured event within 30 days of sending the notification in accordance with paragraph (2), the policyholder shall be deemed to have accepted the direct settlement of the claim by the insurer. This rule shall also apply to the policyholders who have actually received the notification within the appropriate period.
Article 1882. Payment of compensation in case of insurance
of responsibility
The payment of compensation to the contractor or, as the case may be, the insured releases the insurer from its obligation towards the injured third party in one of the following situations:
a) the injured third party has waived his direct claim;
b) the injured third party has not submitted a request for payment directly to the insurer within 30 days of receipt of the insurer’s written request.
Article 1883. Prescription in the case of liability insurance
(1) The action against the insurer, whether brought by the insured or by the injured third party, shall be time-barred when the injured third party’s action against the insured becomes time-barred.
(2) The limitation period for the claim of the injured third party against the insured shall be suspended from the moment the insured became aware of the submission of the direct claim against the insurer and until the moment the direct claim is settled or its unequivocal rejection by the insurer.
§4. Health insurance
Article 1884. General notions
(1) In health insurance, the insurer undertakes to pay the expenses incurred upon the occurrence of the insured event.
(2) The object of health insurance is the patrimonial interests of the insured, correlated with his life and health, which relate to the compensation of expenses related to the provision of medical services and related thereto.
§5. Credit insurance, guarantees
and financial losses
Article 1885. Credit insurance
(1) In credit insurance, the insurer insures the insured’s risks for the total or partial non-reimbursement of credit or loan installments and related interests by the insured’s debtor.
(2) Within the framework of credit insurance, both the contractor and the insured may be a bank or a non-bank financial institution.
Article 1886. Insurance of guarantees
(1) In surety insurance, the insurer, as guarantor, guarantees coverage of financial losses incurred by the insured as a result of the non-performance or improper performance of contractual obligations by the contractor.
(2) Within the framework of guarantee insurance, the insured is a person designated by the contractor, other than the contractor.
(3) Upon conclusion of the insurance contract, the insurer shall issue the insurance policy to the contractor, and the letter of guarantee to the insured.
Article 1887. Insurance against financial losses
(1) In financial loss insurance, the object of insurance is the insured’s patrimonial interests related to financial losses incurred by the insured as a result of non-performance or improper performance of contractual obligations by the insured’s debtor.
(2) In the framework of financial loss insurance, the insured is the contractor or another person designated by him.
(3) In financial loss insurance, the non-performance or improper performance of contractual obligations by the insured’s debtor must be unforeseeable.
Subsection 3
Accident insurance
Article 1888. General notions
(1) In the case of accident insurance, the insurer undertakes to pay the insurance indemnity, established in accordance with the insurance contract, to the insurance beneficiary upon the occurrence of the insured event.
(2) The object of accident insurance is the property interests of the insured person correlated with his life, health and work capacity in relation to the occurrence of an accident.
Section 3
Life insurance
§1. The parties
Article 1889. General notions
(1) In the case of life insurance, the insurer’s obligation or the payment of the premium depends on an event determined by reference to the death or survival of the insured person.
(2) The insured person is the person whose life, health, physical integrity or civil status is insured.
(3) In life insurance, the same person may simultaneously be the contractor, the insured person and/or the beneficiary.
(4) The insurance contract regarding the life of a person other than the policyholder is void if the informed consent in writing of the insured person has not been obtained regarding:
a) contracting insurance in respect thereof; and
b) the identity of the beneficiary, if designated in the contract.
(5) The essential modification of the contract, including the change of the beneficiary, the increase of the insured amount and the change of the duration of the contract, shall not produce legal effects if the consent referred to in paragraph (4) has not been obtained. The same rule shall apply to the assignment or encumbrance of the insurance contract or the right to the insurance indemnity.
Article 1890. Beneficiary of insurance benefit
(1) The policyholder may designate one or more beneficiaries of the insurance indemnity and may change or revoke the designation, unless the irrevocability of the designation has been stipulated. The designation, change or revocation, if not made by will, shall be made in writing and sent to the insurer.
(2) The right to designate, change or revoke the designation shall cease upon the death of the policyholder or upon the occurrence of the insured event, whichever of these events occurs first.
(3) The contractor or, as the case may be, his heirs are considered beneficiaries of the insurance indemnity in one of the following cases:
a) the contractor has not designated a beneficiary;
b) the designation of the beneficiary has been revoked and no other beneficiary has been designated;
c) the beneficiary died before the insured event occurred and no other beneficiary was designated.
(4) If two or more beneficiaries have been designated and the designation of any of them is revoked or any of them dies before the insured event occurs, the part of the insurance indemnity that would have been due to the respective beneficiary or beneficiaries shall be distributed proportionally among the remaining beneficiaries unless the contractor has otherwise provided in accordance with paragraph (1).
(5) Subject to the legal provisions regarding the nullity, annulment or unenforceability of juridical acts that harm creditors, the insurance indemnity, the reduced insured amount or the redemption value shall not be included in the debtor’s estate as long as the indemnity has not been paid to the contractor.
(6) The insurer who pays the insurance indemnity to the person designated according to paragraph (1) is released from the obligation to pay, except in the case where he knew that the person in question was not entitled to receive the insurance indemnity.
Article 1891. Beneficiary of the redemption value
(1) Notwithstanding the designation under Article 1890, the contractor may designate a beneficiary of the redemption value, if any, and may change or revoke such designation.
The designation, change or revocation shall be made in writing and sent to the insurer.
(2) The contractor is considered the beneficiary of the redemption value in one of the following cases:
a) if no beneficiary of the redemption value has been designated;
b) if the designation of the beneficiary of the redemption value has been revoked and no other beneficiary has been designated;
c) if the beneficiary of the redemption value has died and no other beneficiary has been designated.
(3) The provisions of art. 1890 para. (2) and para. (4)-(6) shall apply accordingly.
Article 1892. Assignment or encumbrance
(1) If the beneficiary has been irrevocably designated, the assignment or encumbrance of the insurance contract or of the right to the insurance indemnity by the contractor shall not produce legal effects if the beneficiary has not given his consent in writing.
(2) The assignment or encumbrance of the right to the insurance indemnity by the beneficiary shall not produce legal effects if the contractor has not given his consent in writing.
Article 1893. Renunciation of inheritance by
beneficiary
If the beneficiary is the heir of the insured person and has renounced the inheritance, the renunciation will not affect his position in the insurance contract.
§2. Initial phase and duration of the contract
Article 1894. Pre-contractual information obligations
of the applicant
(1) The information to be provided by the applicant pursuant to Article 1837(1) shall include the circumstances of which the insured person knew or should have known.
(2) The sanctions for failure to comply with the pre-contractual information obligations provided for in art. 1838, 1839 and art. 1841, the part that does not refer to art. 1840, may be invoked within a period of 5 years from the moment of conclusion of the contract.
Article 1895. Pre-contractual information obligations
of the insurer
(1) The insurer shall be obliged to inform the applicant whether or not he is entitled to participate in the profits. The receipt of this information shall be confirmed by an express declaration contained in a document separate from the application form.
(2) Before concluding the contract, the insurer shall provide the following information:
1) regarding the insurer: a concrete reference to the mandatory publication of the annual report on solvency and financial condition;
2) regarding the insurer’s contractual commitments:
a) an explanation of each benefit and each option;
b) information about the proportion of the premium that is attributed to each benefit, both to basic benefits and to additional benefits, as appropriate;
c) the methods of calculating and distributing bonuses, including a specification of the law applicable to supervision;
d) an indication of the surrender value and the reduced sum insured, as well as the extent to which they are guaranteed;
e) in unit-linked contracts: a list of the reference values used (units of account) and an indication of the benchmark property;
f) general information regarding the tax regime applicable to the type of policy.
(3) Additionally, concrete information shall be provided to facilitate proper understanding of the risks inherent in the contract that are assumed by the contractor.
Article 1896. Term of revocation
The life insurance contract can be revoked within 30 days of the insurance policy being issued.
Article 1897. The contractor’s right to termination
insurance
(1) The policyholder has the right to terminate life insurance that does not stipulate a reduced sum insured or a surrender value, provided that the termination does not take effect earlier than 1 year from the date of conclusion of the contract. The right to terminate before the expiry of the contract term may be excluded if a single premium has been paid. The termination shall be made in writing and shall take effect 15 days after receipt of the termination notice by the insurer.
(2) If the life insurance contract stipulates a reduced sum insured or a surrender value, the provisions of Articles 1906 and 1907 shall apply.
Article 1898. The insurer’s right to resolution
insurance
The insurer has the right to terminate the life insurance only to the extent permitted by this chapter.
§3. Changes during the term of the contract
Article 1899. Information obligations of the insurer
during the term of the contract
(1) Where applicable, the insurer must provide the policyholder with a written statement of the current value of the bonuses attached to the policy.
(2) The insurer must inform the policyholder without undue delay of any change concerning:
a) the conditions of the policy, both general and special;
b) in the event of a change in the terms of the policy or a change in the applicable legislation: the information provided for in art. 1831 para. (2) letter h), as well as in art. 1895 para. (2) point 2) letters a)-e).
Article 1900. Aggravation of risk
In the case of a life insurance contract, the clause that provides for age or deterioration of health as aggravation risks within the meaning of art. 1843 paragraph (1) is considered an unfair clause within the meaning of this code.
Article 1901. Adjustment of premium and benefits payable
(1) In the case of an insurance contract covering risks for which the insurer is certain to be liable, the insurer is entitled to an adjustment in accordance with paragraphs (2) and (3).
(2) The premium increase is permitted if there has been an unforeseeable and permanent change in the biometric risks used as the basis for calculating the premium, if the increase is necessary to guarantee the insurer’s continued ability to pay insurance benefits and if the increase has been accepted by an independent trustee or a supervisory authority.
The policyholder has the right to offset the premium increase with a corresponding reduction in insurance benefits.
(3) In the case of a policy with the premium already paid, the insurer has the right to reduce the insurance benefits under the conditions set out in paragraph (2).
(4) Adjustment under paragraph (2) or (3) shall not be allowed:
a) to the extent that an error was made in calculating the premium and/or benefits that a competent and diligent actuary would have known;
b) if the basic calculation does not apply to all contracts, including those concluded after the adjustment.
(5) An increase in the premium or a reduction in benefits shall take legal effect within 3 months after the insurer has notified the policyholder in writing of the increase in the premium or the reduction in benefits, of the reasons for this decision and of the policyholder’s right to request a reduction in benefits.
(6) In the case of a life insurance contract covering risks for which the insurer is certain to be liable, the policyholder shall be entitled to a reduction of the premium if, due to an unforeseeable and permanent change in the biometric risks used as the basis for calculating the premium, the initial amount of the premium is not appropriate and necessary to guarantee the insurer’s continued ability to pay insurance benefits. The reduction must be accepted by an independent trustee or a supervisory authority.
(7) The rights provided for in this article may be exercised after the expiry of a period of 5 years from the conclusion of the contract.
Article 1902. Modification of contractual conditions
(1) The clause that allows the insurer to modify the contractual conditions, other than the amount of the premium and the insurance benefits, is null and void, unless the modification is necessary for one of the following purposes:
a) to comply with a change in legislation on insurance supervision, including the taking of mandatory measures by the supervisory authority;
b) to comply with a change in the mandatory rules of the applicable national law concerning employee pension plans;
c) to comply with a change in national rules imposing specific requirements on a life insurance contract in order to benefit from a separate tax regime or state subsidies;
d) to replace an unfair contract clause.
(2) The amendment shall take legal effect starting from the third month after the contractor receives the written notification informing him of the amendment and the reasons for it.
(3) The provisions of paragraph (1) shall apply without prejudice to other requirements imposed for the validity of modification clauses.
§4. Insured event
Article 1903. Obligations of the insurer to investigate
and information
(1) The insurer who has reason to believe that the insured event has occurred must take reasonable measures to ascertain it.
(2) If the insurer becomes aware that the insured event has occurred, it shall make all reasonable efforts to discover the identity and address of the beneficiary and shall inform him of the occurrence of the insured event. This information shall be provided no later than 30 days after the insurer became aware of the identity and address of the beneficiary.
(3) If the insurer violates the provisions of paragraph (1) or (2), the prescription of the beneficiary’s claim shall be suspended until the beneficiary becomes aware of his claim.
Article 1904. Suicide of the insured person
(1) If, within 2 years from the date of conclusion of the contract or from the last amendment in the sense of increasing the insured amount, the insured person commits suicide, the insurer is released from the liability to pay the insurance indemnity. In this case, the insurer must pay the surrender value and any profits according to art. 1907.
(2) The provisions of paragraph (1) shall not apply in the event that:
a) the insured person, when committing suicide, acts with a psychological attitude that prevents them from expressing their free will;
b) it has been proven, beyond any reasonable doubt, that, at the time of conclusion of the contract, the insured person did not have the intention to commit suicide.
Article 1905. Murder of the insured person
(1) If a beneficiary intentionally takes the life of (kills) the insured person, his/her designation as beneficiary is deemed to be revoked.
(2) The assignment of the claim to receive the insurance indemnity does not produce legal effects if the assignee kills the insured person.
(3) If the contractor who is also the beneficiary kills the insured person, no insurance indemnity is paid.
(4) If the beneficiary or the contractor killed the insured person in self-defense or there is another cause that eliminates the criminal nature of the act, the provisions of this article do not apply.
§5. Conversion and redemption
Article 1906. Conversion into life insurance
(1) The provisions of art. 1849 shall not apply to life insurance contracts in which a reduced sum insured or a surrender value has been accumulated. These contracts shall be changed by the insurer from an insurance contract with the payment of premiums to an insurance contract without the payment of premiums and a reduced sum insured, if the policyholder does not request payment of the surrender value within 30 days of receiving the information provided for in paragraph (2).
(2) The insurer must inform the policyholder of the reduced sum insured and the surrender value within 30 days of maturity and ask the policyholder to choose either conversion and establishment of the reduced sum insured or payment of the surrender value.
(3) The request for payment of the redemption value shall be submitted in writing.
Article 1907. Redemption in life insurance
(1) The policyholder may, at any time, request the insurer in writing to pay, in whole or in part, the accumulated surrender value on the policy, provided that this request does not produce legal effects until the expiry of the term of 1 year from the moment of conclusion of the contract. The contract will be adjusted or subject to resolution accordingly.
(2) Subject to the provisions of art. 1906, in the event of termination or nullity, at the initiative of the insurer, of the life insurance contract for which the surrender value has accrued, the insurer is obliged to pay the surrender value, including in the case provided for in art. 1840.
(3) The insurer must inform the policyholder, upon request, but in any case at least once a year, of the current amount of the surrender value and the extent to which it is guaranteed.
(4) The share of any profit to which the contractor is entitled shall be paid in addition to the redemption value, unless the share has already been taken into account in calculating the redemption value.
(5) The amounts due under this article must be paid no later than 2 months after the insurer receives the policyholder’s request.
Article 1908. Reduced insured amount and value
of redemption
The insurance contract must provide for the calculation of the reduced sum insured and/or the surrender value.
Section 4
Group insurance
§1. General provisions
Article 1909. Scope of application
(1) Group insurance contracts are contracts concluded between the insurer and a group organizer for the benefit of the group members who have a common relationship with the organizer. A group insurance contract may also cover the families of the group members.
(2) The group insurance contract is subject to the provisions of this chapter if it was concluded between the group organizer and the insurer.
(3) Group insurance is accessory if the members are insured by right through their membership in the group, without having the possibility of refusing the insurance.
(4) Group insurance is voluntary if the members are insured as a result of their personal request or because they have not refused insurance.
Article 1910. General duty of prudence
of the group organizer
(1) When negotiating and executing the group insurance contract, the group organizer is required to act prudently and in good faith, taking into account the legitimate interests of the group members.
(2) The group organizer shall forward to the group members the notifications received from the insurer and inform them of any changes to the contract.
§2. Accessory group insurance
Article 1911. Information obligations of the organizer
GROUP
(1) When a person joins a group, the group organizer must inform him without delay about:
a) the existence of the insurance contract;
b) the extent of coverage;
c) any precautions and other requirements for maintaining the coverage; and
d) the procedure for submitting claims.
(2) The burden of proving that the group member has been informed in accordance with paragraph (1) lies with the group organizer.
Article 1912. Resolution by the insurer
(1) For the purposes of Article 1855, the exercise of the right to termination by the insurer shall be considered reasonable only if it is limited to the exclusion from coverage of the group member in respect of whom the insured event occurred.
(2) For the purposes of art. 1842 paragraph (2) and art. 1844 paragraph (1), the exercise of the right to termination by the insurer only has the effect of excluding from coverage those members of the group who have not taken the established precautionary measures or, as the case may be, whose risk has worsened.
(3) For the purposes of art. 1871, the termination of the insurance only produces the effect of excluding from coverage the group members who have alienated the ownership right over the insured goods.
Article 1913. Right to continue coverage
in the case of group life insurance
(1) If the group life insurance is terminated or if the member leaves the group, the coverage shall cease upon the expiry of 3 months from the termination or leaving the group or upon the expiry of the group life insurance contract, whichever occurs first. In such cases, the group member shall be entitled to equivalent coverage under a new individual contract with the respective insurer without a new risk assessment.
(2) The group organizer must inform the group member in writing without undue delay about:
a) the imminent termination of his/her coverage under the group life insurance contract;
b) his right provided for in paragraph (1);
c) the manner in which he can exercise that right.
(3) If the group member has indicated his intention to exercise his right provided for in paragraph (1), the contract between the insurer and the group member shall continue as an individual insurance contract, with a premium calculated on the basis of an individual policy at that time without taking into account the current state of health or the age of the group member.
§3. Voluntary group insurance
Article 1914. General provisions
(1) Voluntary group insurance is considered to be the combination of a framework contract between the insurer and the group organizer and the individual insurance contracts concluded within that framework between the insurer and the group members.
(2) The provisions of this paragraph shall apply to individual insurance contracts where the group organiser and the insurer have agreed on their application. However, the provisions of this chapter, with the exception of the provisions of Articles 1909 and 1910, shall not apply to the framework contract.
Article 1915. Modification of contractual conditions
The modification of the conditions of the framework contract may affect individual insurance contracts only if it is done in accordance with the requirements of Articles 1901 and 1902, which shall apply accordingly.
Article 1916. Continuation of coverage
The termination of the framework contract or the termination of group membership does not affect the insurance relationship between the insurer and the group member.
Chapter XXVI
TRANSACTION
Article 1917. Transaction
(1) A settlement is a contract by which the parties prevent a lawsuit that may begin, end a lawsuit that has begun, or resolve difficulties that arise in the process of enforcing a court decision.
(2) In order to conclude a transaction, the necessary capacity to dispose of the object of the transaction is required.
(3) The transaction may stipulate a penalty for the person who fails to execute it.
Article 1918. Prohibition of transaction
(1) No transaction may be made regarding the capacity of the person or other matters of public order.
(2) A settlement may be entered into on a civil action arising from a criminal offense.
Article 1919. Judicial settlement and transaction
extrajudicial
(1) The transaction is judicial if it has been confirmed by the competent court or arbitration court, in accordance with the applicable procedural rules. The legal provisions regarding the forced performance of arbitration awards remain applicable.
(2) The transaction is extrajudicial if, through it, the parties have prevented a lawsuit that could have started or, although they are transacting on an ongoing lawsuit, they do not submit it to the competent court or arbitration court for confirmation. After confirmation in the appropriate manner, the extrajudicial transaction becomes a judicial transaction.
(3) The out-of-court settlement agreement shall be concluded in writing.
(4) In the absence of any contrary provision, the provisions of this chapter shall apply to both judicial and extrajudicial settlements.
Article 1920. Effect of the transaction
(1) The transaction has the authority of res judicata between the parties.
(2) The extrajudicial transaction is not susceptible to forced performance except after:
a) admission of the action for forced performance of the obligation resulting from the transaction by the competent court, at the request of the party to the transaction;
b) its confirmation by the competent court, according to Chapter XLV of the Code of Civil Procedure, at the request of the party to the mediation process;
c) its investment with an enforceable formula by the notary. The notary will invest the transaction with an enforceable formula, at the request of all parties to the concluded transaction, within the mediation process or outside the mediation process.
(3) The party to the out-of-court settlement may invoke the out-of-court settlement by way of exception without requesting its confirmation.
(4) If a party has the right to the resolution of the judicial settlement for non-performance of the obligations arising from it, the resolution cannot be declared by unilateral notification.
(5) The court that has been asked to pronounce the resolution of the judicial settlement is entitled to not admit the action if the entitled party can avoid the consequences of the non-performance of the settlement by obtaining its forced performance or by obtaining compensation.
Article 1921. Nullity of the transaction
(1) The transaction may be declared null and void on the general grounds for the nullity of juridical acts. It may also be challenged by means of a revocation action or by means of an action for declaration of simulation.
(2) Error of law regarding the issues that constitute the object of the parties’ misunderstanding and injury cannot constitute grounds for the nullity of the transaction.
(3) The transaction is presumed to be indivisible with regard to its object. In the absence of a contrary stipulation, it is subject only to total nullity.
(4) The court decision by which the nullity of the transaction is ascertained or declared is void, and the court decision by which the judicial transaction was confirmed is void.
Article 1922. Effects of the nullity of the title
(1) A transaction that is based on a null title is also null and void, unless the parties have expressly covered the nullity.
(2) A transaction based on a document subsequently recognized as false is void.
Article 1923. Nullity of the transaction in case of existence
a final decision
The transaction regarding a started process is void if the parties or one of them does not know that the dispute has been resolved by a final court decision.
Article 1924. Transaction regarding all business
(1) If the parties have concluded a transaction concerning all the business between them, the subsequent discovery of a document that was unknown to them is not a ground for nullity of the transaction, except in the case when it was concealed by one of the parties or, with the latter’s knowledge, by a third party.
(2) The transaction is void if it has only one object and if the discovered documents prove that one of the parties had no right.
Article 1925. Calculation errors
Calculation errors committed by one of the parties when concluding the transaction do not harm either party and are to be repaired.
Chapter XXVII
CIVIL SOCIETY
Article 1926. Civil partnership contract
Through a civil partnership contract, two or more persons (associates, participants) mutually obligate themselves to jointly pursue economic or other goals, without constituting a legal person, sharing the benefits and losses between them.
Article 1927. Object of the civil partnership contract
The civil partnership contract must have a lawful object, established in the common interest of the partners.
Article 1928. Form and content of the contract
of civil society
(1) If the law requires a certain form for the sale of property under penalty of nullity, then the same form requirement applies to the civil partnership contract that has such property as its object.
(2) The civil partnership contract must contain:
a) the name or denomination, address or registered office of the participants;
b) the rights and obligations of each participant;
c) the establishment and functions of the management;
d) distribution of profits and losses among participants;
e) the procedure for eliminating participants;
f) duration of the company;
g) the procedure for dissolving the company and dividing its property.
(3) The civil partnership contract may not be modified, in the absence of a contrary clause, except by the common agreement of all the partners.
Article 1929. Contributions of participants
(1) The participants must pay the contributions agreed upon in the contract. In the absence of provisions to this effect, they are obliged to pay equal contributions. If the contract determines only the share of the partners in the income or losses, the same share shall apply to the shares in the partnership property.
(2) Contributions may consist of goods, including patrimonial rights.
(3) Unless otherwise provided by the contract, the contributions become the common property of the participants, according to their shares in the social patrimony. The social patrimony includes what was acquired on the basis of a right related to that patrimony and what was acquired as compensation for the destruction, loss or deterioration of an object in it.
(4) A participant’s contribution may not be increased without his consent.
Article 1930. Liability for contributions
(1) For the property given as a contribution, the associate is liable according to the rules regarding the seller’s liability.
(2) The partner who is in default with a sum of money that he has not deposited is in default by law, and must pay the interest established in art. 942 without being exempted from compensation for damages, if applicable. This rule also applies to amounts taken over for personal purposes from the company’s funds, the interest on which is calculated from the day of taking over.
(3) If the right to use an property was transferred as a contribution and this right expires before the term for which it was transferred, the associate is obliged to compensate in money the cost of the use that the company was deprived of.
(4) The partners who have undertaken to jointly provide work services shall hand over to the company all the earnings obtained through the services that are the object of the company.
(5) Upon the liquidation of the company, each associate has the priority right over other associates to receive the property he gave as a contribution.
Article 1931. Transfer of quotas to third parties
(1) Shares in the partnership property or other rights arising from the contract may not be transferred to third parties without the consent of the other partners. Such consent may be refused only for a valid reason.
(2) In the event of the alienation of a share of the company’s property, the other partners have the right of pre-emption.
Article 1932. Administration and representation
(1) Unless otherwise provided in the contract, the associates shall jointly manage the civil society’s documents and jointly represent the society externally.
(2) Each associate has the right to participate in the issuance of joint decisions. Any clause to the contrary is null and void.
(3) If, by contract, the management of the civil partnership is entrusted to one or more partners, each of them has the right to act alone. However, any other partner may object to the conclusion of the juridical act in the name of the partnership. In this case, the act shall be deemed not to have been concluded in the name of the partnership.
(4) To the extent that a partner is assigned, based on the contract, the function of managing the civil partnership, he is also empowered, unless otherwise stipulated, to represent the other partners towards third parties.
(5) The position granted by contract to one of the partners may be withdrawn only by unanimous decision of the other partners in the event of failure to fulfill his obligations. The partner may renounce participation in the management of the company. At the same time, he may request clarifications from the management at any time.
(6) The associate has the right, even if he does not have powers of administration and representation, to receive information about the activities of the civil society, to become acquainted with the accounting records and documents related to the civil society, as well as the state of the civil society’s property. The clause excluding or limiting this right does not prevent its invocation if there are reasons to assume improper administration.
(7) Unless otherwise provided in the contract, the rights and obligations of the participant in the civil partnership who has powers of administration and representation shall be determined in accordance with the rules regarding the mandate contract to the extent that they do not contravene the provisions of this chapter.
Article 1933. Participation in income and losses
(1) Unless otherwise provided in the contract, the partners participate in the income and bear the losses in proportion to their shares of the social patrimony.
(2) The clause that attributes to a partner all the income obtained by the company or releases him from all losses, that excludes a partner from sharing the income or places all losses on his/her shoulders is null and void.
(3) Each associate has the right to require any other associate to pursue the purpose of the civil society with the necessary diligence in relations of this kind.
Article 1934. Competition of claims
(1) If he is the creditor of an amount due to a person who is also a debtor of an amount due to the company, the partner is obliged to distribute what he receives from such a debtor both to the company’s credit and to his own, in proportion to both claims, even if the receipt specifies that the receipt was made only on account of his private credit.
(2) If the receipt specifies that the receipt was made only to the credit of the company, this specification shall be followed.
Article 1935. Impossibility of assignment of partners’ rights.
Pursuit by personal creditors
(1) The rights and claims of the associate, arising from contractual relationships, towards the other associates are not transferable.
(2) As long as the civil partnership has not been dissolved, the creditor of the associate cannot pursue the rights of the associate resulting from the civil partnership contract, except for pursuing the claim to obtain the share of the income due to him.
(3) If it has been stipulated that the death of one of the natural person partners or the dissolution of a legal person partner does not lead to the dissolution of the civil partnership, the legal successors of the partner do not become partners, but only have the right to the monetary value of the share acquired through inheritance. The contract may provide that the legal successors of the partner become partners, taking over the place and rights of the predecessor.
Article 1936. Rights of the partner’s spouse
(1) The legal regime of joint property in common applies to the share of the social patrimony acquired by a spouse during the marriage.
(2) The partner’s spouse may not request the division of the share or his admission into the company, unless the partnership agreement provides otherwise. The partner’s spouse’s right to the monetary value of his share of the share remains unaffected.
Article 1937. Prohibition of offsetting
The associate remains liable to the company for the damage caused by his fault. This damage cannot be compensated by the benefits brought to the company by the associate’s services in other businesses.
Article 1938. Obligation of confidentiality
Civil society participants have an obligation of confidentiality.
Article 1939. Joint and several liability
The partners are jointly and severally liable for the obligations of the civil society. In internal relations, the extent of liability is determined according to the shares in the social patrimony, unless otherwise provided in the contract.
Article 1940. Resolution of the civil partnership contract
(1) If the contract does not provide for a fixed duration of the civil partnership, each partner may terminate the contract with 3 months’ notice. The termination may not take place at the time or in circumstances where it would cause harm to the civil partnership.
(2) The provisions of paragraph (1) shall also apply if it has been stipulated that the civil partnership will last for the lifetime of an associate, as well as if the associates tacitly continue the civil partnership after the expiry of the determined duration.
(3) If a term is established in the contract, early termination is admissible only for a valid reason. A valid reason shall include, in particular, the failure by another partner, intentionally or through gross negligence, to perform an essential obligation arising from the civil partnership contract, as well as the inability of another partner to continue performing those obligations.
(4) The withdrawal of a partner shall result in the dissolution of the company. The contract may provide that the withdrawal shall not lead to the dissolution of the company, but only to the elimination of the person who terminated the contract. In this case, the share in the share capital of the person who terminated the contract shall increase accordingly the shares of the remaining partners.
(5) The associate who has terminated the contract is entitled to the monetary value of his share. For this purpose, the acts in progress at the time of withdrawal shall also be taken into account.
(6) If, at the time of withdrawal, the value of the civil partnership’s property is insufficient to cover the joint debts, the withdrawing partner is obliged to pay the other partners an amount proportional to his share of the property to cover the deficit.
(7) The clause that limits or eliminates the right of withdrawal is void.
Article 1941. Grounds for the dissolution of civil society
(1) The grounds for the dissolution of a civil society are:
a) the expiration of the term for which it was established, except in the case where the associations tacitly continue the civil society;
b) the decision of the associates;
c) initiation of insolvency proceedings on the property of the civil society;
d) pursuit by a creditor of an associate of his share in the company’s property;
e) achievement of the goal or impossibility of further pursuing the goal.
(2) Unless the contract provides otherwise, the following are also grounds for dissolution of the civil partnership:
a) the death of one of the natural person partners or the dissolution of a legal person partner;
b) the initiation of insolvency proceedings regarding one of the partners;
c) the establishment of a judicial protection measure in the form of guardianship with respect to an associate if this harms the activity of the civil society;
d) termination of the civil partnership contract.
Article 1942. Effects of the dissolution of civil society
(1) Upon dissolution, the civil partnership must be liquidated. The acts in progress must be completed. An inventory is drawn up and the partners discuss the property.
(2) During the debate on the property, the debts of the civil partnership must be paid. If the property are not sufficient, the partners are obliged to cover the deficit in proportion to their shares of the property. Any surplus is divided between the partners in proportion to these shares.
Chapter XXVIII
COMMON RIGHTS
Article 1943. Regulations applicable to rights
commune
If a right belongs jointly to several persons (sharers), the provisions of this chapter shall apply unless the law provides otherwise.
Article 1944. Presumption of equality of co-owners
Unless expressly agreed otherwise, each co-owner receives an equal share.
Article 1945. Distribution of fruits
(1) Each co-owner is entitled to a share of the fruits in proportion to his share.
(2) Each co-owner has the right to use the common property in such a way as not to prejudice its use by the other co-owners.
Article 1946. Right of disposal over property
common
(1) The co-owners shall dispose of the common property together.
(2) Each co-owner has the right to take, without the consent of the other co-owners, the necessary measures for the preservation of the property.
Article 1947. Determination of the mode of administration
and use
(1) By majority vote, the administration and use of the common property may be decided depending on its characteristics. The majority of votes shall be determined according to the size of the shares.
(2) Each co-owner may request, to the extent that the administration and use have not been established by agreement or by majority vote, the administration and use of the common property corresponding to a fair assessment of the interests of all co-owners.
(3) The right of a co-owner to a fraction of the fruits corresponding to his share cannot be affected without his consent.
Article 1948. Opposability of the mode of administration
and use towards the successors of the co-sharers
If the method of administration and use has been regulated by the partners, the agreed rules also have effect towards their successors in title.
Article 1949. The right to dispose of a
shares
Each partner can dispose of his share.
Article 1950. Bearing of burdens
Each co-owner is obligated to the other co-owners to bear the burdens of the common property, as well as the expenses of conservation, administration and common use, according to his share.
Article 1951. The right to request the dissolution of the community
(1) Each partner may request the dissolution of the community at any time.
(2) If the right to request the dissolution of the community is excluded by an agreement, the dissolution may still be requested if there is a valid reason.
(3) The agreement on the basis of which, contrary to the provisions of paragraph (2), the right to request the dissolution of the community is excluded or limited is null and void.
Article 1952. Division in kind
The dissolution of the community is done by division in kind, if the sharing of the common property can be achieved, corresponding to the shares of the co-partners, without diminishing the value of the property. The equal parts are divided between the co-partners by drawing lots.
Article 1953. Sale of common property
(1) If division in kind is excluded, the dissolution of the community shall be effected by the sale of the common property in accordance with the rules for the sale of pledged property, and in the case of land, by auction and by the division of the proceeds. If sale to a third party is prohibited, the property shall be auctioned between the co-owners.
(2) If the attempt to sell the property is unsuccessful, any co-owner may request a resumption of the attempt. However, he must bear the costs if the attempt fails.
Article 1954. Sale of joint claims
The joint claim may be sold until the moment when enforcement was requested. If the claim can be realized, each co-owner has the right to realize it on behalf of all the other co-owners.
Article 1955. Covering debts on account
the common good
(1) If the partners are jointly and severally liable for an obligation which, according to art. 1950, they must perform in relation to their respective shares or if they have consented to the performance of such an obligation, each party may request, upon the dissolution of the community, that the debt be covered from the common property.
(2) To the extent that the coverage of debts requires the sale of the common property, the sale shall be made in accordance with art. 1953.
Article 1956. Coverage of a party’s debts
from the commons account
If a co-owner has a claim against another co-owner based on community relations, he may request, upon the dissolution of the community, that his claim be covered from the debtor’s share of the common property.
Article 1957. Guarantee in the event of transfer of property
a partner
If, upon the dissolution of the community, the common property is assigned to one of the partners, each of the other partners is liable to him for the defects of the property relating to his share according to the rules regarding the seller’s liability.
Article 1958. Imprescriptibility of the request for dissolution
of the community
The request to dissolve the community is not subject to prescription.
Chapter XXIX
PUBLIC PROMISE OF REWARD
Article 1959. Obligation to grant rewards
(1) The person who has made a public promise to grant a reward for the performance within a certain period of time of a lawful action, indicated in the announcement, is obliged to grant the reward to any person who has performed the action under the stipulated conditions, even if this person acted without taking into account the public promise of reward.
(2) The obligation to provide a reward arises if the person who made the promise of a reward can be determined with certainty. The person who wishes to perform the action in exchange for the promised reward is entitled to request written confirmation of the promise, otherwise he bears the risk of finding that the author of the promise is not the person indicated in the advertisement.
(3) If the public promise of a reward does not indicate the amount of the reward, it shall be established by mutual agreement with the promisee, and in case of dispute, by the court.
(4) If the reward announcement does not establish or if the nature of the indicated action does not indicate otherwise, the compliance of the action committed with the conditions set out in the announcement shall be established by the person who promised the reward, and in case of dispute, by the court.
Article 1960. Distribution of rewards
(1) If the action indicated in the announcement is committed by several persons, the right to the reward is vested in the person who committed the action first.
(2) If the action indicated in the announcement is committed by several persons and it is impossible to determine which of them committed the action first, as well as if the action is committed simultaneously by several persons, the reward shall be divided between these persons in equal parts or in the manner established by their mutual agreement. If the reward is indivisible or if, in accordance with the terms of the announcement, it is to be paid to only one person, that person shall be chosen by drawing lots.
(3) In the case of the contribution of several persons to the performance of the action for which the reward is promised, it shall be divided among them by the promisor depending on the degree of participation of each in achieving the goal, and in the event of a dispute, the reward shall be divided by the court.
Article 1961. The Contest
(1) The public announcement of the award of a reward in the form of a prize for the best performance of a work is valid only if it establishes the deadline for the performance of the work.
(2) Modifying the conditions of the competition to the detriment of the competitors is inadmissible.
(3) The right to decide on the compliance of the competition held within the established term with the public promise of reward (the conditions of the competition) or on the determination of the winning work belongs to the person indicated in the announcement, and if this is not indicated, to the person who announced the reward. The decision is binding on all participants in the competition.
(4) In case the submitted works are of the same value, the provisions of art. 1960, paragraph (2) shall apply regarding the awarding of the prize.
(5) The person promising the reward may request the transfer of ownership of the works executed under the terms of the competition only if such a clause was included in the public announcement. The copyright belongs in any case to the author of the work.
(6) The person who announced the competition is obliged to return the works to the participants in the competition unless the announcement regarding the competition provides otherwise.
Article 1962. Revocation of public promise of rewards
(1) The person who publicly announced the granting of a reward is entitled to revoke the promise made in the same manner, except in the case where:
a) the announcement contains or it clearly indicates the inadmissibility of the revocation;
b) a certain deadline is indicated for the performance of the action for which the reward is promised;
c) at the time of revocation of the promise, the action indicated in the announcement is already committed and its author claims the promised reward.
(2) The revocation of the public promise of reward does not deprive the persons who responded to the announcement of the right to request compensation, within the limit of the announced reward, for the expenses incurred in carrying out the respective action.
Chapter XXX
GAMES AND BETTING
Article 1963. Validity of the gaming contract
and the bet
(1) The contract regarding the game and betting is valid only in the cases expressly provided for by law.
(2) The contract is valid if it refers to legal exercises and games that require skills or physical exercises only on the part of the participants, except in cases where the amounts at stake are excessive in relation to the circumstances, as well as the state and faculties of the parties.
Article 1964. Lottery contract and other contracts
LIKE
(1) The lottery contract and other similar gaming contracts produce legal effects only if the lottery or game is authorized by the state.
(2) The relations between the organizers of total lotteries (mutual bets) and other games of chance that have obtained a license in the manner established by the legislation and the participants in the games are established in the respective contract.
(3) In the cases provided for in the rules for organizing games, the contract between the game organizer and the game participant is concluded by the organizer sending the lottery ticket, receipt or other document to the participant.
(4) The proposal to conclude the contract provided for in paragraph (1) must contain clauses regarding the term of the games, the method of determining the winnings and their amount.
(5) If the organizer refuses to conduct the game within the established deadline, the participants in the game are entitled to request the recovery of the actual damage caused by the cancellation or cancellation of the game.
(6) The winnings obtained by the person who, according to the conditions of the game, is recognized as the winner must be awarded by the game organizer in the amount, form and within the terms provided for in the game conditions, and if no term for payment of the winnings is provided, no later than 12 days from the announcement of the game results.
Article 1965. Convention on Differences
If a contract for the delivery of goods is concluded on the condition that the difference between the price established in the contract and the stock exchange or market price at the time of delivery is paid to the winning party by the losing party, this contract is considered a game. The same rule applies if the intention to pay the difference was only one party and the other knew or should have known about such intention.
Chapter XXXI
BUSINESS MANAGEMENT
Article 1966. Obligations of the person who manages
without a foreign affairs warrant
(1) A person who, without having a mandate or without being legally or otherwise obliged (manager), acts with the predominant intention of benefiting another (client), without the latter’s knowledge, must demonstrate the diligence of a good owner and act in accordance with the interests of the client, taking into account the latter’s real or presumed will.
(2) The manager, if he knew or should have known that he was acting contrary to the real or presumed will of the manager, is obliged to repair the damage caused by the management of the business even if he is not at fault.
(3) The provisions of paragraph (2) shall not apply if, contrary to the will of the trustee, his obligation regarding the maintenance of persons whom the trustee is obliged to maintain according to the law or other obligations of the trustee which, being due, must be urgently executed for the protection of a priority public interest, is executed, provided that the trustee acts with the predominant intention of being of benefit to the recipient of the performance.
Article 1967. Obligation to inform the district
(1) The manager is obliged to inform the manager, as soon as possible, about the takeover of the management and to continue the initiated acts, as long as it is necessary for the manager to take over them.
(2) If he cannot inform the manager about taking over the management, the manager is obliged to complete the acts begun.
(3) The manager may terminate management for good reason.
Article 1968. Consequences of accepting committed acts
by manager
If the manager approves, tacitly or expressly, the management of the business, the provisions regarding the mandate apply accordingly, even if the manager did not act with the intention of concluding a mandate contract.
Article 1969. Consequences of non-acceptance of documents
committed by the manager
(1) Acts committed by the manager, after being notified of their non-acceptance by the client, do not generate obligations for the client towards the manager or towards third parties.
(2) In order to eliminate a danger that threatens a person’s life, acts may be committed without his or her consent, and the performance of maintenance obligations may be carried out against the will of the person who has such an obligation.
Article 1970. Compensation for expenses incurred
by manager
(1) The manager may request the manager to compensate the expenses related to the management to the extent that they can be considered, in light of the circumstances, as necessary and, within the limits of the added value, useful. The manager may choose to compensate by directly covering the expenses incurred by the manager by the manager or by refunding to the manager the amount of the expenses covered by the manager.
(2) The manager has the right to compensation for expenses even if he failed to preserve the property and defend the interests of the manager although the actions taken were useful and there was no fault.
(3) The compensable expenses may in no case exceed the value of the goods for the preservation of which the respective acts are undertaken.
(4) Expenses incurred by the manager in connection with acts committed after acceptance shall be reimbursed in accordance with the rules regarding the mandate.
Article 1971. Refusal to compensate expenses
manager ‘s
The manager cannot request compensation for expenses if the management acts are made against the will of the manager or if they do not correspond to his interests, except in cases where the will of the manager is not necessary according to art. 1966 paragraph (3).
Article 1972. Compensation for damage caused to the manager
The manager who acted, under the terms of this chapter, with the aim of protecting the beneficiary or his property or interests from a danger has the right to claim compensation from the manager for the damage that those actions caused to the physical integrity or property of the manager if the actions generated or significantly increased the risk of causing damage, provided that that risk, to the extent that it was foreseeable, was proportional to the danger to which the beneficiary was exposed.
Article 1973. Limits imposed by equity
The right of the manager to compensation for expenses and damages may be reduced or excluded by the court to the extent that it is fair and reasonable, in particular if the manager acted to protect the manager in a situation of common danger, if the amount to which the manager is to be held is excessive or if the manager has a right to obtain the amounts to which he is entitled from another person.
Article 1974. Right to the person responsible
If the manager acted with the aim of protecting the client against damage, the person responsible for the damage, according to the legal provisions on tort liability, is also obliged to the manager to compensate him for his expenses and to repair the damage to which he is entitled under this chapter.
Article 1975. Liability of the manager
The manager is liable to the managed only for damage caused intentionally or through gross negligence.
Article 1976. Obligation to return what was received
as a result of management
The manager is obliged to present a report on his acts to the manager, as well as to hand over everything he received as a result of the management.
Article 1977. Rights and obligations arising from acts
without warrants
(1) The rights and obligations arising from necessary and useful acts committed in the interest of another person without his mandate under the conditions of this chapter arise for the person in whose interest these acts were committed.
(2) However, the unilateral juridical act committed by the manager under the terms of this chapter shall not produce effects if the person to whom the act is addressed rejects it without undue delay.
Article 1978. Failure to apply the provisions regarding
business management
The provisions of this chapter do not apply to actions committed in the interest of other persons by the person who acted with the belief that he was doing so for his own benefit, nor to actions committed by public authorities for whom such acts fall within their field of activity.
Chapter XXXII
UNJUSTIFIED ENRICHMENT
Section 1
General provisions
Article 1979. Unjustified enrichment
(1) If a person obtains unjust enrichment (enriched person) which is attributable to the disadvantage suffered by another person (disadvantaged person), he is obliged to the disadvantaged person to return the enrichment.
(2) The provisions of paragraph (1) shall apply only in accordance with the provisions of this chapter.
Article 1980. Scope of application
(1) The legal consequences of enrichment obtained under a contract or other valid and effective juridical act are regulated by other legal provisions if those rules grant or exclude the right to the restitution of the enrichment, by effect of revocation, resolution, reduction of the correlative obligation or on another basis.
(2) The provisions of this Chapter shall not affect any other right of restitution or recovery provided for by legal provisions on property, contracts or other legal provisions.
(3) However, if the disadvantaged person has:
a) both a claim based on this chapter for the restitution of unjust enrichment,
b) as well as a claim for compensation for the disadvantage (either against the enriched person or a third party) or a right of recovery based on other legal provisions as a result of the unjust enrichment, then the satisfaction of one of the claims reduces the other claim by the same amount.
(4) The rule provided for in paragraph (3) shall also apply if a person uses an property of the disadvantaged person, so that it increases the property of another person, and according to the provisions of this chapter:
a) the user is obliged to return the value of the use to the disadvantaged person; and
b) the acquirer is obligated to the disadvantaged person in relation to the increase in his or her property.
Section 2
Conditions for considering enrichment
as unjustified
Article 1981. Circumstances in which enrichment
is unjustified
(1) An enrichment is unjustified, except in the following cases:
a) the enriched person is entitled to obtain the enrichment by virtue of a contract or other juridical act, a court decision or other legal basis; or
b) the disadvantaged person has freely and without error consented to suffer the disadvantage.
(2) If the contract or other juridical act is null and void or ineffective with retroactive effect, or if the court decision or other basis for obtaining it is invalid with retroactive effect, the enriched person is not entitled to enrichment based on this basis.
(3) However, the enriched person is considered entitled to enrichment under the law if he acquired the enrichment through usucapion, good faith, as well as in other cases when, according to the law, he has the right to keep the enrichment.
(4) Enrichment is also unjustified if:
a) the disadvantaged person offered it for a purpose that is not achieved or in consideration of an expectation that was not fulfilled;
b) the enriched person knew or should reasonably have known about that purpose or expectation; and
c) the enriched person has accepted or can reasonably be considered to have accepted that the enrichment must be returned in such circumstances.
Article 1982. Performance of a third party’s obligation
(1) When the enriched person obtains the enrichment as a result of the performance by the disadvantaged person of an obligation or an alleged obligation owed by the disadvantaged person to a third party, the enrichment is justified:
a) if the disadvantaged person has executed freely; or
b) even if the third party in error indicated that the obligation must be performed for the benefit of the enriched person.
(2) In the case provided for in paragraph (1), the rights of the disadvantaged person vis-à-vis the third party remain unaffected.
Article 1983. Consent or free performance
(1) If the consent of the disadvantaged person is affected by fraud, violence or injury or the person does not have the discernment or capacity to exercise the necessary powers to give the respective consent, the disadvantaged person is considered not to have freely expressed his or her consent.
(2) If the obligation performed is null and void or did not arise due to the fact that the person does not have the discernment or capacity to exercise the obligation required to assume the respective obligation or due to fraud, violence or injury, it is considered that the disadvantaged person did not perform it freely.
Section 3
Enrichment and disadvantage
Article 1984. Enrichment
(1) A person is enriched by increasing his property, using the property of another, providing a service or performing a work for his benefit.
(2) For the purpose of determining whether a person has obtained enrichment and its size, the disadvantage that the enriched person suffered in exchange for the enrichment or after the enrichment shall not be taken into account.
Article 1985. The disadvantage
(1) A person is disadvantaged by the reduction of his or her property, the use of property by another person, the provision of a service or the performance of a work for the benefit of another.
(2) For the purpose of determining whether a person has suffered a disadvantage and its extent, the enrichment that this person obtained in exchange for the disadvantage or after the disadvantage shall not be taken into account.
Section 4
award
Article 1986. Cases of award
(1) An enrichment is attributed to the disadvantage of another, in particular:
a) if the property of the disadvantaged person is alienated to the person enriched by the disadvantaged person;
b) if the disadvantaged person provides a service or performs a work for the benefit of the enriched person;
c) if the enriched person uses the property of the disadvantaged person, in particular when the enriched person violates the rights, possession or other legitimate interests of the disadvantaged person;
d) if an property of the enriched person is improved by the disadvantaged person; or
e) if the enriched person is released from an obligation by the disadvantaged person.
(2) An enrichment may be attributed to the disadvantage of another even if the enrichment and the disadvantage are not of the same type or the same value.
Article 1987. Indirect representative
When a party to the juridical act is a commission agent or other indirect representative, the enrichment or disadvantage of the principal or other indirect representative resulting from the juridical act or from the performance of the obligations resulting from it shall be considered as an enrichment or, as the case may be, considered as a disadvantage of the commission agent or other indirect representative.
Article 1988. Performance by the debtor in favor of
the person who is the creditor.
Subsequent transmission in good faith
(1) If the debtor performs the obligation for the benefit of an unjustified third party, and, according to the law, the debtor is considered released from the obligation, the enrichment obtained by the third party is attributed to the disadvantage of the creditor.
(2) The provisions of paragraph (1) shall apply in particular where a person who is obliged to repay unjust enrichment to the disadvantaged person transfers it to a third party in circumstances where the debtor can invoke the defence provided for in Article 1994.
(3) If the debtor claims to have discharged the obligation through performance in favor of an unjustified third party, and, according to the law, the debtor is not considered released from the obligation, the creditor may nevertheless ratify the performance.
(4) Ratification extinguishes the creditor’s right against the debtor to the extent of the performance, having the effect of attributing the enrichment of the third party to the loss of the creditor’s right against the debtor.
(5) In the relationship between the creditor and a third party, ratification shall not be considered as the creditor’s consent to the loss of his right against the debtor.
(6) The provisions of paragraphs (3)-(5) shall not apply if, before the moment of ratification by the creditor, insolvency proceedings are initiated against the debtor.
Article 1989. Attribution resulting from the act of a third party.
Ratification of third party acts
(1) An enrichment is also attributed to the disadvantage of another if a third party uses the property of the disadvantaged person without authorization in such a way that the disadvantaged person loses the property and the enriched person acquires it.
(2) The provisions of paragraph (1) shall apply in particular if, as a result of the fact that the third party has manipulated or disposed of the property, the disadvantaged person loses the right of ownership over the property, and the enriched person acquires the property pursuant to the juridical act or the law.
(3) The person who has a right to the property may ratify the act of a third party who apparently alienates or otherwise uses the property pursuant to a juridical act with a third party.
(4) The ratified act has the same legal effect as a juridical act concluded through an authorized representative. In the relationship between the ratifier and the third party who disposed of or otherwise used the property, ratification shall not be considered acceptance of the disposition or use of the property by the third party.
Section 5
Restitution of enrichment
Article 1990. Transmissible enrichment
(1) If the enrichment consists of an property that can be transmitted, the enriched person is obliged to return the enrichment by transmitting the property to the disadvantaged person.
(2) Instead of transferring the property, the enriched person may choose to return the enrichment by paying the monetary value to the disadvantaged person if the transfer would cause the enriched person disproportionate effort or expense.
(3) If the property has been consumed, perished or lost, if the property no longer belongs to him or if the enriched person is for other reasons unable to transfer the property, the enriched person is obliged to return the enrichment by paying the monetary value to the disadvantaged person. If the impossibility relates to a part of the property or the property is encumbered with the rights of a third party, the disadvantaged person may choose between transferring the monetary value of the entire property or transferring the property in its present form, to which the monetary value of the missing part shall be added.
(4) However, to the extent that the enriched person has obtained a substitute, that substitute shall constitute the enrichment subject to restitution:
a) if the enriched person is in good faith at the time when he/she disposed of the initial enrichment or when this enrichment has perished and chooses to return the enrichment by means of the transmission of the substitute; or
b) if the enriched person acted in bad faith at the time when he disposed of the initial enrichment or when this enrichment was lost and the disadvantaged person chooses to have the enrichment returned to him by way of restitution of the substitute, provided that this choice is not unfair.
(5) The enriched person is considered to be in good faith if he or she did not know and should not reasonably have known that the enrichment was unjustified or could become unjustified.
Article 1991. Non-transferable enrichment
(1) If the enrichment consists of goods that cannot be transferred, works, services or the use of a good, the enriched person is obliged to return the enrichment by paying the monetary value for the benefit of the disadvantaged person.
(2) The enriched person is not obliged to pay more than the savings he made if he did not consent to the enrichment or if he acted in good faith.
(3) However, if the enrichment was obtained under a contract which established a price or value for the enrichment, the enriched person is obliged to pay at least this amount if the contract is invalid for reasons which were not essential for establishing the price.
(4) The provisions of paragraph (3) shall not apply to increase the obligation above the monetary value of the enrichment.
Article 1992. Monetary value of enrichment.
save
(1) The monetary value of the enrichment shall be deemed to be the sum of money at which a transferor and a acquirer with real intentions to conclude a contract would have validly agreed as the price thereof. Expenses incurred by the supplier of a work, service or use which, according to the contract, must be covered by the acquirer shall be considered as part of the price.
(2) Saving is considered the reduction of property or the increase of obligations that the enriched person, in circumstances specific to him, would have incurred if he had not obtained the enrichment.
(3) The monetary value and savings are appreciated at the time the enriched person obtained the enrichment.
Article 1993. The fruits and uses of enrichment
(1) The obligation to restitution of enrichment extends to the fruits and use of the enrichment or, if it is smaller, to the savings resulting from the fruits or use.
(2) However, if the enriched person obtains the fruits or use in bad faith, the restitution of the enrichment extends to the fruits and use even if the saving is less than the value of the fruits or use.
Section 6
Legal means of defense
Article 1994. Diminution of enrichment
(1) The enriched person is not obliged to return the enrichment to the extent that he suffered a disadvantage through the disposition of the enrichment or in another form provided for in art. 1985 (diminution of enrichment), except in the case where the enriched person would have suffered the disadvantage even if he had not obtained the enrichment.
(2) However, the diminution of enrichment shall not be taken into account:
1) to the extent that the enriched person obtained a substitute;
2) to the extent that the enriched person was in bad faith at the time of the diminution of the enrichment, except in the case of:
a) when the disadvantaged person would have suffered a diminution even if the enrichment had been returned to him; or
b) when the enriched person was in good faith at the time of the enrichment, the diminution of the enrichment occurred before the obligation to return the enrichment fell due and the diminution of the enrichment resulted from the materialization of a risk that cannot be attributed to the enriched person; or
3) to the extent that the provisions of art. 1991 paragraph (3) apply.
(3) If the enriched person can raise the defense provided for in this article against the disadvantaged person as a result of the disposition in favor of a third party, the rights of the disadvantaged person against that third party remain unaffected.
Article 1995. Juridical acts concluded in good faith
with third parties
(1) The enriched person is not obliged to return the enrichment if:
a) in exchange for that enrichment, offered the third party another enrichment; and
b) was in good faith at that time.
(2) The provisions of paragraph (1) do not affect the rights of the disadvantaged party to recover the property from that third party by way of a claim action or to recover the property under the terms of this chapter.
(3) The provisions of paragraph (1) shall not affect the rights of that third party in the event of eviction under paragraph (2).
Article 1996. Illegality
If a contract or other juridical act on the basis of which the enrichment was obtained is null and void, the enriched person is not obliged to return the enrichment to the extent that the return would contravene the purpose underlying the violated legal provision or the violated principle of public order or good morals.
Article 1997. Bilateral restitution
In the case provided for in art. 1981 paragraph (2), if both parties are under an obligation to make restitution, their obligations are correlative.
Chapter XXXIII
TORTIOUS LIABILITY
Section 1
General provisions
Article 1998. General grounds and conditions
of tort liability
(1) A person who acts unlawfully towards another, with guilt, is obliged to repair the patrimonial damage, and in the cases provided by law, also the moral damage caused by the action or omission.
(2) Damage caused by lawful or negligent acts shall be repaired only in cases expressly provided for by law.
(3) A person other than the perpetrator of the damage is obliged to repair the damage only in cases expressly provided for by law.
(4) The damage shall not be repaired if it was caused at the request or with the consent of the injured person, provided that the person knew or should have known the consequences of the request or consent, and if the act of the perpetrator does not contravene good morals.
Article 1999. Scope
(1) The provisions of this chapter shall also apply to damage caused in contractual relations, except in cases where the legal provisions regarding the non-performance of obligations apply.
(2) The provisions of this chapter shall not apply in cases where their application conflicts with other legal provisions.
(3) The provisions of this chapter do not exclude the application of legal means of defense on other legal grounds.
Article 2000. Prohibition of causing harm
(1) The danger of causing harm in the future provides grounds for prohibiting acts that may generate such a danger.
(2) If the damage is a consequence of the exploitation of the enterprise, installation or a production activity that continues to cause damage or threatens to cause new damage, the court may oblige the defendant, in addition to repairing the damage, to cease its activity if the cessation does not contradict the public interest.
Article 2001. Damage caused in a state of legitimate
defense
(1) Damage caused by a person in a state of self-defense is not subject to compensation if it has not exceeded its limits.
(2) If during the defense against an unjust attack damage is caused to a third party, the damage shall be repaired by the attacker.
Article 2002. Damage caused in case of extreme circumstances
necessity
(1) Damage caused by a person in case of extreme necessity shall be repaired by him.
(2) Taking into account the circumstances in which the damage was caused, the court may oblige the third party in whose interest the perpetrator of the damage acted to make reparation or may exempt both the perpetrator of the damage and the third party from the obligation to make reparation, in whole or in part.
(3) The damage caused by extinguishing or locating a fire will be repaired by the fire-starter.
Article 2003. Protection of the public interest
The obligation to repair the damage is excluded if it was caused for the necessary protection of fundamental values in a democratic society, in particular if the damage was caused by the disclosure of information through the media.
Article 2004. Performing a required activity
or permitted by law
Carrying out an activity imposed or permitted by law or by order of a superior does not exempt from liability the person who could have realized the illicit nature of his act committed in such circumstances.
Article 2005. Liability of the principal for
the act of the accused
(1) The principal is liable for the damage caused through fault, and in cases expressly provided for by law, without fault, by the administrator, his employee or another person subordinate to the principal (employee) in the functions entrusted to him.
(2) If the perpetrator caused the damage intentionally, the injured person may choose to request compensation for the damage only from the principal, only from the perpetrator or from both jointly and severally.
(3) The principal retains the right of recourse against the agent. The agent may be exempted from liability if he proves that he has complied exactly with the principal’s instructions.
(4) The lack of discernment of the agent at the time of committing the illicit act does not exempt the principal from liability.
Article 2006. Liability for damage caused
by a public authority or a person
with a position of responsibility
(1) The damage caused by an illegal administrative act or the failure to resolve a request within the legal deadline by a public authority or by a person holding a responsible position within it shall be fully repaired by the public authority. The person holding a responsible position shall be jointly and severally liable in the case of intent or gross negligence.
(2) Natural persons have the right to request compensation for moral damage caused by the actions indicated in paragraph (1).
(3) The obligation to repair the damage does not arise to the extent that the injured party has omitted, intentionally or through gross negligence, to remove the damage by legal means.
(4) Where a public authority has an obligation imposed by an act adopted for the purpose of protection against the risk of a certain type of damage, it shall be liable for damage of that type caused or avoided by the failure to perform the obligation, unless the public authority demonstrates that it has shown reasonable diligence in performing the obligation.
(5) The public authority is not liable for the damage caused by the adoption of a normative act or the omission to adopt it.
Article 2007. State liability for damage
caused by the actions of the prosecution bodies
criminal, prosecutor’s office or courts
court
(1) The damage caused to a person through the actions of criminal investigation bodies, the prosecutor’s office or the courts shall be fully repaired by the state, regardless of the guilt of the person responsible, in the following cases:
a) illegal conviction, illegal holding to criminal liability, illegal application of a preventive measure in the form of preventive arrest or in the form of a written declaration not to leave the locality;
b) illegal application, as a minor offence sanction, of arrest or unpaid community service;
c) actions or inactions that led, as the case may be, to:
– the finding by the European Court of Human Rights, by decision, of a violation of a person’s fundamental rights or freedoms and the ordering of the payment of sums for their benefit;
– the delivery of a decision by a national court, following the conviction of the state by the European Court of Human Rights, which ordered the payment of amounts from the state’s account.
(2) The state is exempted from liability in the event that the injured person intentionally and voluntarily contributed to the damage through self-denunciation.
Article 2008. Liability for damage caused
by a minor who has not reached the age of 14
(1) The damage caused by a minor who has not reached the age of 14 shall be repaired by his parents or guardians unless they prove their lack of guilt in supervising or educating the minor.
(2) If the minor who has not reached the age of 14 caused the damage while under the supervision of an educational, training or curative institution or of a person obliged to supervise him on a contractual basis, they are liable for the damage caused if they do not prove that they have duly fulfilled their obligation of supervision.
(3) The obligation of parents, guardians, educational institutions, and curative institutions to repair the damage caused by a minor does not cease upon reaching the age of majority or upon acquiring sufficient property to repair the damage.
(4) The person obliged to repair the damage according to paragraph (1) is not exempt from liability solely on the grounds that he did not live with the minor at the time the damage was caused, if this circumstance is attributable to the obliged person.
Article 2009. Liability for damage caused
by a minor between 14 and 18 years old
(1) A minor between 14 and 18 years of age is personally liable for the damage caused, according to the general rules.
(2) If the minor between 14 and 18 years of age does not have sufficient property or income to repair the damage caused, it must be repaired, in full or in the unrepaired part, by the parents or guardian if they do not demonstrate that they have duly fulfilled their obligation of supervision. The provisions of art. 2008 para. (4) shall apply accordingly.
(3) The obligation of the parents or guardian to repair the damage caused by a minor between 14 and 18 years of age does not arise if the minor caused the damage in his capacity as a guardian of another person, in which case the provisions of art. 2005 shall apply.
Article 2010. Liability for damage caused
by a person in respect of whom it has been established
a measure of judicial protection
(1) The temporary guardian, curator or, as the case may be, the guardian or the institution in which the person is admitted shall be liable for the damage caused by a person in respect of whom a judicial protection measure has been established, to the extent that they were obliged to supervise the person, unless they demonstrate that they have duly fulfilled their obligation of supervision.
(2) The obligation of the persons indicated in paragraph (1) to repair the damage caused by a person in respect of whom a judicial protection measure has been established does not cease if the protection measure is amended or revoked.
(3) If the temporary guardian, curator or, as the case may be, the tutor, held liable in accordance with paragraph (1), has died or does not have sufficient means to compensate him, and the perpetrator of the damage has such means, the court, taking into account the material condition of the injured person and the perpetrator of the damage, the degree of discernment of the perpetrator, as well as other circumstances, has the right to decide on the full or partial compensation of the damage at the perpetrator’s expense.
Article 2011. Liability for damage
caused by a discerning person
REDUCED
(1) A person in respect of whom a judicial protection measure has not been established who caused damage while being unable to fully understand or direct his actions (diminished discernment) is not liable for the damage.
(2) The court has the right, taking into account the material condition of the injured person and the perpetrator of the damage, the degree of discernment of the perpetrator, as well as other circumstances, to oblige the latter to fully or partially compensate for the damage.
(3) The perpetrator of the damage is not exempted from liability if he himself is guilty of having reached such a state as a result of the consumption of alcohol, drugs, other psychotropic substances or for any other reason.
Article 2012. Event beyond control
The person is not liable if the damage is caused by an abnormal event that cannot be avoided by reasonable measures, and the risk does not lie with that person.
Article 2013. Liability for damage
caused by a source of increased danger
(1) Persons whose activity is related to a source of increased danger to the surrounding world (operation of vehicles, installations, mechanisms, use of electricity, explosive substances, performance of construction works, etc.) are obliged to repair the damage caused by the source of increased danger unless they prove that the damage is due to an event provided for in art. 2012 (except for cases where the damage occurred as a result of the operation of aircraft) or due to the intention of the injured person.
(2) The obligation to repair the damage lies with the person who possesses the source of increased danger based on the right of ownership or on another legal basis or with the person who assumed the guarding of the source of increased danger.
(3) The owner of a source of increased danger shall not be liable for the damage caused if he proves that the source of increased danger has left his possession as a result of the unlawful actions of third parties. In this case, the liability shall lie with the person who unlawfully acquired the source of increased danger. To the extent that the owner of the source of increased danger is guilty of the fact that the source has left his possession, he shall be jointly and severally liable for the damage with the person who unlawfully acquired it.
(4) The owners of high-hazard sources are jointly and severally liable for the damage caused to a third party through the interaction of these sources (collision of means of transport, etc.).
(5) The damage caused to the owners of sources of increased danger as a result of their interaction shall be repaired according to the provisions of art. 1998.
Article 2014. Liability for damage
caused by animals
(1) The owner of an animal or the person who uses the animal during the service is liable for the damage caused by it, whether it was under his custody or escaped from custody. The obligation to make reparation does not arise if the damage was caused by a domestic animal intended for business activity, business or obtaining means for the owner’s maintenance, and the owner of the animal ensured due care for the supervision of the animal, or if the damage occurred even in the event of such care being exercised.
(2) The person who, based on the contract concluded with the owner of the animal, has assumed the obligation to supervise the animal is liable for the damage caused by it unless he proves his innocence.
Article 2015. Liability for damage
caused by the collapse of the building
(1) The owner is obliged to repair the damage caused by the collapse, in whole or in part, of the construction when the collapse is the result of lack of proper maintenance or a construction defect.
(2) The person who has contracted with the owner to maintain the construction or who is obliged to maintain it in proper condition pursuant to the right of possession granted to him shall be jointly and severally liable with the owner for the damage caused as a result of the collapse of the construction or a part thereof.
Article 2016. Liability in case of fall or
construction leaks
(1) If the damage was caused by something falling or leaking from the construction, the person in possession of the construction is liable. This rule does not apply if the damage was caused by an event provided for in art. 2012 or through the fault of the injured party.
(2) Until proven otherwise, it is presumed that the construction is in the possession of its owner.
Article 2017. Abandonment
The person remains liable for the damage caused by a construction that is a source of increased danger and that he abandons, until another person takes possession of it or obtains legal custody of it or begins to exploit it. This rule applies accordingly, to the extent that is reasonable, to the person who has custody of the animal.
Article 2018. Damage suffered as a result of trust
in consultation or incorrect information
(1) The damage suffered by a person as a result of taking a decision by him/her reasonably relying on incorrect advice or incorrect information shall be repaired if:
a) the advice or information is provided by a business in the course of his/her activity; and
b) the person who provided the advice or information knew or should reasonably have known that the recipient of the advice or information would rely on it in making that decision.
(2) The liability provided for in this article arises only to the extent that the person who provided the consultation or information, at the time of providing it, did not limit or exclude his liability by express declaration to the recipient.
Article 2019. Damage suffered through disturbance
illegality of the business’s activity
and the damage suffered by the consumer
as a result of unfair competition
(1) Whoever illegally hinders or disrupts the business’s activity is obliged to repair the damage caused in this way.
(2) The consumer has the right to compensation for damage caused as a result of unfair competition in the cases provided for by competition legislation.
Article 2020. Expenses borne by the public authority
to restore environmental damage
The expenses incurred by the competent public authority for the restoration of the natural elements constituting the environment, such as air, water, soil, flora and fauna, as a result of substantial damage, shall be reimbursed to that competent public authority.
Article 2021. Damage caused by fraudulent declaration
(1) Damage caused to a person as a result of a fraudulent statement made by another person, through words or conduct, shall be redressed.
(2) A statement is considered fraudulent if the person making it knows that it is false and is intended to induce the recipient to make a mistake.
Article 2022. Causal link
(1) A person is considered to have caused the damage if it is the consequence of that person’s act or the consequence of the source of danger for which that person is liable according to the law.
(2) In the case of bodily injury or other injury to health or death, the predisposition of the injured person to a certain type of injury or to a certain extent of injury shall not be taken into account.
(3) If the damage could have been caused by one or more events for which different persons are responsible and it has been established that the damage was caused by one of those events, but it has not been established which one, it shall be presumed, until proven otherwise, that the damage was caused by each person responsible for at least one of those events.
Article 2023. Liability for damage
jointly caused
(1) If the damage was caused jointly by several participants, they shall bear joint and several liability.
(2) Not only the perpetrator of the act causing damage, but also the person who instigated or supported it, as well as the person who consciously benefited from a benefit resulting from the damage caused to another (participants) is considered a participant.
(3) In the case of a recourse action, the share of each participant in the joint and several obligation is proportional to his contribution to the commission of the unlawful act if this can be determined.
Article 2024. Right of recourse against the person
which caused harm
(1) The person who has repaired the damage caused by another person has the right to a recourse action against him in the amount of the compensation paid to the injured person unless the law or the contract provides otherwise.
(2) In the event of compensation for damage pursuant to art. 2007, the state has the right of recourse against the responsible person within the criminal investigation bodies, the prosecutor’s office or the court, if his guilt is established by a final sentence or if, within the framework of a disciplinary procedure, intent or gross negligence in his actions or inactions was established.
(3) Parents, temporary guardians, tutors or curators, as well as the organizations provided for in art. 2008-2010 who have repaired the damage caused by a minor or a person in respect of whom a judicial protection measure has been established, have no right of recourse against them.
(4) The person exercising recourse may not recover the part of the compensation corresponding to his own contribution to causing the damage.
Article 2025. Manner of repairing the damage
(1) Damage shall be remedied in kind, by restoring the previous situation (transfer of a good of the same type and quality, repair of the damaged good, etc.), and if this is not possible or if the injured person is not interested in remediation in kind, by paying the monetary equivalent (compensation), established by agreement of the parties or, in the absence of such an agreement, by court decision.
(2) In the event of damage to property, compensation shall be equal to the loss of value of the property and not to the cost of repair if the cost of repair disproportionately exceeds the loss of value. This rule shall apply to animals only if it is appropriate, having regard to the purpose for which the animal is kept.
(3) The compensation shall be established in the form of a lump sum or, if the damage is of a continuous nature, in the form of a periodic payment. If compensation is established in the form of a periodic payment, the debtor may be required to provide security.
(4) The injured person is not required to prove that he spent the amount of compensation for the purpose of repairing the damage.
(5) In the case of future damage, the compensation, regardless of the form in which it was awarded, may be increased, reduced or extinguished if, after its establishment, the damage has increased, decreased or ceased.
(6) The author of the unlawful act shall also owe default interest at the rate determined in accordance with Article 942 starting from the date of receipt by the person liable for the damage of the summons from the injured party. The default interest shall be calculated from the amount of the compensation or, in the case of in-kind compensation for the damage, from the value of that compensation.
Article 2026. Consideration, in determining
the amount of compensation, the guilt
the injured person
(1) Damage caused by the intention of the injured person shall not be repaired.
(2) If the serious fault of the injured person contributed to the occurrence of the damage or its aggravation, the compensation shall be reduced according to the degree of guilt of the injured person.
(3) The serious fault of the injured person does not constitute grounds for reducing the compensation in the cases provided for in art. 2007 nor in cases where the damage was caused to a minor who has not reached the age of 14 or to a person in respect of whom a judicial protection measure has been established.
(4) Compensation for damage unintentionally caused by one participant to another, during the commission of an unlawful act against a third party, is excluded if this is contrary to public order.
Article 2027. Liability for prevention expenses
A person who has reasonably incurred expenses or other damage in order to prevent imminent damage or to limit the extent or severity of the damage suffered is entitled to reimbursement of these from the person who would have been liable if the damage had occurred.
Article 2028. Liability for damage
caused by damage to the integrity
bodily or other injury
of health
(1) In case of bodily injury or other damage to health, the perpetrator of the damage is obliged to compensate the injured person for the salary or income lost due to the loss or reduction of work capacity, as well as the expenses incurred in connection with the health injury – treatment, additional nutrition, prosthetics, external care, purchase of a special vehicle, business retraining, etc.
(2) The determination of the salary or income lost due to bodily injury or other health injury shall be carried out in accordance with Articles 2029 and 2030.
(3) When determining the lost salary or income, the disability pension established for the injured person in connection with bodily injury or other health injury, as well as other indemnities or amounts paid under state social insurance, shall not be taken into account.
(4) The amount of compensation due, in accordance with this article, with articles 2029 and 2030, to the injured person may be increased by law or contract.
(5) Liability for damage caused by bodily injury or other damage to health shall be subject to the legal provisions on non-contractual liability, even if the damage was caused in the performance of a contractual obligation. However, the injured party may invoke the provisions of the contract if they are more favourable to him than the provisions on non-contractual liability.
Article 2029. Determination of compensation for
lost salary or income
(1) Compensation for lost salary or income shall be established on the basis of the average net monthly income from work or other activity of the injured person in the last year before the loss or reduction of his/her work capacity or, in the absence thereof, on the basis of the net monthly income that he/she could have achieved, taking into account the business qualification that he/she had or would have had upon completion of the training that he/she was in the process of receiving.
(2) However, if the injured person proves the possibility of obtaining a higher salary or income based on a contract concluded in the last year, and this has not been enforced, this income will be taken into account in determining the compensation.
(3) If the injured person did not have a business qualification and was not in the process of receiving it, the compensation will be equal to the gross amount of the minimum wage per country established by the Government.
Article 2030. Injury to a minor
(1) If the injured person is a minor, the compensation established according to art. 2029 paragraph (1) shall be due from the date when, normally, the minor would have completed the business training he was receiving.
(2) Until that date, if the minor had a salary or income at the time of the injury, the compensation shall be determined on the basis of the salary or income of which he was deprived or, if he did not have a salary or income, according to art. 2029, which shall apply accordingly. This latter compensation shall be due from the date on which the minor has reached the age provided by law for being a party to an employment relationship or carrying out the respective income-generating activity.
Article 2031. Liability in case of death
of the injured person
(1) In the event of the death of a person as a result of serious bodily injury or other injury to health, the right to compensation for the loss of the breadwinner is vested in:
a) persons incapable of work, who were supported by the deceased or who, at the date of his death, were entitled to support;
b) the person’s child born after their death;
c) one of the parents, spouse or another family member of the deceased, regardless of whether he is fit for work or not, who does not work and takes care of the children, brothers and sisters who were supported by the deceased and who have not reached the age of 14 or who, although they have reached such an age, need care due to health, according to the opinion of the authorized medical bodies;
d) persons who were supported by the deceased and who became unfit for work within 5 years of his death.
(2) The right to compensation for the loss of the breadwinner is recognized:
a) minors, until they reach the age of 18;
b) pupils and students who have reached the age of 18, until the completion of their studies (except for studies carried out at the part-time section) in educational institutions, but at most until the age of 23;
c) for women who have reached the age of 55 and for men who have reached the age of 60 – for life;
d) people with disabilities;
e) to one of the parents, the spouse or another member of the deceased’s family, who takes care of the children, brothers and sisters who were supported by the deceased, until they reach the age of 14 or until their health improves, confirmed by a certificate from the competent medical authorities.
(3) When determining the compensation, the needs of the entitled person shall be taken into account, as well as the income that the deceased would normally have had during the period for which the compensation is granted. The provisions of art. 2028-2030 shall apply accordingly.
(4) The persons obliged to repair the damage caused by death shall also be required to compensate the necessary funeral expenses, taking into account the social status of the deceased and local customs, to the person who incurred them.
Article 2032. Compensation for damage suffered by third parties
(1) Damage caused by injury to bodily integrity or other harm to health also includes medical expenses reasonably incurred by those close to the injured person for their benefit.
(2) In the event of the death of a person as a result of injury to health, the patrimonial damage caused at the time of death becomes the patrimonial damage of the deceased’s successors.
(3) Moral damage suffered by a natural person as a result of serious bodily injury or other injury to health or the death of another person shall be compensated if, at the time of the injury or death, that natural person was in a particularly personal relationship with the injured or deceased person.
(4) The right to compensation for moral damage is transmitted to successors only if it has been established through a transaction or a final court decision.
(5) The person liable for the damage may invoke against the third parties provided for in paragraphs (1)-(3) all the exceptions that he could have raised against the person whose health was harmed or who died.
Article 2033. Reparation for biological damage caused
through injury to bodily integrity or
through other harm to health
(1) In the event of bodily injury or other damage to health, in addition to the compensation for the patrimonial and moral damage, separate compensation shall be paid for the injury itself (biological damage).
(2) Health injury also includes mental health injury only if it manifests itself through a disease or condition that requires medical assistance or service.
Article 2034. Compensation for the damage caused
through bodily harm
or through other harm to health or
by death
(1) The payment of compensation for damage caused by bodily injury or other damage to health or death shall be made in monthly installments.
(2) Compensation for expenses incurred due to bodily injury or other health damage may be established in advance, based on the opinion of the authorized medical body, including for the prior payment of necessary services and goods, such as a sanatorium bill, travel tickets, special means of transport, etc.
(3) At the request of the person entitled to receive compensation for the damage caused by bodily injury or other health damage or death, the court may determine, if there are justified reasons, taking into account the possibilities of the person responsible, the payment of compensation in the form of a single payment for a period of no more than 3 years.
(4) In case of liquidation of the legal person liable for the damage caused by bodily injury or other damage to health or by death, the respective amounts are capitalized according to the law.
Article 2035. Changing the amount of compensation
for the damage caused by the injury
of bodily integrity or by other means
injury to health or death
(1) If, due to bodily injury or other health damage, the work capacity has subsequently decreased compared to the capacity that the injured person had at the time when the compensation was awarded, he or she has the right to request a corresponding increase in the amount of compensation.
(2) The person obliged to pay the compensation provided for in paragraph (1) has the right to request its appropriate reduction if the injured person’s working capacity has increased compared to the capacity at the time the compensation was awarded.
(3) The amounts due for compensation for damage caused by bodily injury or other damage to health or death shall be indexed according to the law.
Article 2036. Compensation for moral damage
(1) If a person has suffered moral damage through acts that violate his or her personal non-pecuniary rights, as well as in other cases provided for by law, the court has the right to oblige the responsible person to repair the damage by paying compensation.
(2) Moral damage shall be repaired regardless of the existence and extent of the patrimonial damage.
(3) Compensation for moral damage shall be made even in the absence of the author’s guilt, of the unlawful act if the damage is caused by illegal conviction, illegal holding to criminal liability, illegal application of preventive arrest or written declaration not to leave the locality, illegal application as an administrative sanction of arrest, unpaid community service and in other cases provided for by law.
(4) Unless otherwise provided by law, the mere finding of a violation of a right or interest recognized by law without the payment of compensation provides just satisfaction to the injured person only when this corresponds to the nature of the right or interest recognized by law violated and the injured person will thus be able to obtain a non-pecuniary value superior to the moral damage suffered.
(5) The right to compensation for infringements of personal non-property rights may be assigned only if it has been established by a transaction or by a final court decision.
Article 2037. Amount of compensation for
moral damage
(1) The amount of compensation for moral damage shall be determined by the court depending on the nature and severity of the moral damage caused to the injured person, the degree of guilt of the perpetrator of the damage, if guilt is a condition of liability, and the extent to which this compensation can bring fair satisfaction to the injured person.
(2) The nature and severity of the moral damage shall be assessed by the court, taking into account the circumstances in which the damage was caused, the restriction of family and social life possibilities, as well as the social status of the injured person.
(3) When determining compensation, the court shall tend to award compensation which, on the one hand, is of a size comparable to that usually awarded in similar circumstances and, on the other hand, takes into account the particularities of the case.
Article 2038. The limitation period
(1) Unless otherwise provided by law, the action for compensation for damage shall be prescribed within 3 years from the moment when the injured person knew or should have known of the existence of the damage and the person obliged to compensate for it.
(2) If the person obliged to repair the damage and the injured person negotiate on the damage to be repaired, the prescription period shall be suspended until one of the parties abandons the negotiation.
Article 2039. Exclusion or limitation of liability
by juridical act
(1) Under penalty of absolute nullity, liability for intentional causing of damage may not be excluded or limited. The provisions of art. 1998 para. (4) remain applicable.
(2) Under penalty of absolute nullity, liability for causing damage through gross negligence may not be excluded or limited in respect of bodily injury or other injury to health or death, as well as in other cases where the exclusion or limitation of liability is contrary to law or good faith.
(3) Liability arising in cases other than those provided for in paragraphs (1) and (2) may be excluded or limited by juridical act unless the law provides otherwise.
Section 2
Liability for damage
caused by defective products
Article 2040. Grounds for compensation for damage
caused by defective products
(1) The producer is liable for the damage caused by a defective product, even in the absence of fault, except in cases where:
a) did not put the respective product into circulation;
b) it may be considered, depending on the circumstances, that the product did not have the defect causing the damage at the time the manufacturer put it into circulation;
c) the product is not made for sale or for any other form of economic exploitation and is not sold within the framework of the business activity exercised by the producer;
d) the defect consists in the fact that the product, at the time the manufacturer put it into circulation, complied with mandatory legal provisions;
e) the defect could not be identified due to the level of science and technology at the time the manufacturer put it into circulation.
(2) The obligation to repair the damage by the manufacturer of a component part of the product is excluded if the defects are due to the assembly (construction) of the product in which the component part is incorporated or to the additions and connections made by the manufacturer of the final product. This provision applies accordingly to the manufacturer of the raw material.
(3) The producer’s obligation to repair the damage is diminished or eliminated if the damage was caused by the fault of the injured party or the person for whom the injured party is liable.
(4) The producer’s liability is not diminished if the damage is caused simultaneously by a defect in the product and by the action of a third party.
Article 2041. The product, the producer and the damage
RISE
(1) For the purposes of this section, a product is any movable property, even if it is incorporated into other movable property or into an immovable property. Electricity, natural gas and water supplied for individual consumption are also considered products.
(2) For the purposes of this section, a manufacturer is a person who has produced a finished product, a raw material or a component part of a product. A manufacturer is also considered to be a person who presents himself as a manufacturer by adding his name, trade marks or other distinctive signs.
(3) A producer is also someone who, within the framework of his commercial activity and within the scope of regulation of this section, imports or purchases a product for the purpose of sale, rental, leasing or distribution in another form.
(4) If the manufacturer cannot be identified, any person who has supplied the product may be considered the manufacturer if, within one month of becoming aware of the claims arising from the defects of the product, he does not indicate the manufacturer or the person who has supplied the product to him. This provision shall also apply in the case of an imported product in relation to which the persons referred to in paragraph (3) cannot be identified, even if the name of the manufacturer is known.
(5) For the purposes of this section, damage shall be considered:
a) the damage caused by death or bodily injury;
b) the damage caused or the destruction of any good, other than the defective product, with the cumulative condition that the defective good:
– be normally intended for private use or consumption; and
– be used by the injured person mainly for his own use or for private consumption.
This paragraph shall not prejudice the legal provisions regarding compensation for moral damage.
Article 2042. Defective product
(1) A product is defective if it does not guarantee the expected safety, taking into account all the circumstances, such as for example:
a) product presentation;
b) the use that could reasonably be expected;
c) the moment the product is put into circulation.
(2) A product does not have a defect merely because, subsequently, another, improved product is put into circulation.
Article 2043. The burden of probation
The injured party must provide proof of the defect, the damage and the causal link between them.
Article 2044. Joint and several liability
If several persons are liable for the same damage, they are jointly and severally liable.
Article 2045. Time limits for compensation for damage
(1) If no time limit is set for the repair of the damage, the damage shall be repaired if it occurred within 10 years from the date on which the producer put into circulation the product that caused the damage, except in cases where the injured person has initiated, during this period, a legal proceeding against the producer.
(2) Claims under art. 2040 shall be prescribed within 3 years from the moment the injured party became aware or should have become aware of the damage, the defect in the product and the identity of the manufacturer.
Article 2046. Prohibition to exclude or limit
with anticipation of responsibility
(1) The manufacturer’s liability for defective products may not be excluded or limited by a contractual clause. Conventions to the contrary shall have no effect.
(2) The application of the provisions of this section does not exclude the possibility of the injured party to claim compensation based on contractual or tortious liability or in accordance with special legislative and regulatory acts in the field.
Section 3 – repealed
Title IV
TRUST
Chapter I
GENERAL PROVISIONS
Article 2055. The concept
A trust is a legal relationship in which a party (the fiduciary) is obligated to become the owner of a patrimonial mass (the fiduciary patrimonial mass), to administer it and to dispose of it, in accordance with the conditions governing the relationship (the conditions of the trust), for the benefit of a beneficiary or to promote a public utility purpose.
Article 2056. Parties to the trust
(1) The parties to the trust are the settlor, the trustee, the beneficiary and the trustee.
(2) The settlor is the person who establishes a trust and conveys to the trustee the title to the rights contributed to the trust property.
(3) Beneficiary is the person who, according to the terms of the trust, has the right to benefit from the trust property or has the vocation to such a benefit.
(4) A trustee is a person who, according to the terms of the trust, has the right to appoint or revoke the trustee or to consent to the trustee’s resignation, as well as other discretions and powers expressly provided for.
(5) Unless otherwise provided in this title:
a) the settlor may also be a trustee and/or beneficiary;
b) the trustee may also be a beneficiary; and
c) any of the parties to the trust may also be an assistant to the trust.
(6) A trust may have one or more settlors, trustees, beneficiaries and trustee assistants, both initial and subsequent.
(7) Unless the law or the terms of the trust otherwise provide, a reference to a party (or a person who has ceased to be a party) to a trust shall be deemed to include a reference to the successors of that person if that party has died.
(8) Labor law does not apply to the relations between the parties to the trust.
Article 2057. Plurality of trustees
(1) If there are several trustees, their obligations are joint and several.
(2) If the trust rights are transferred to several trustees together, the property are held in common, and the claims are held as joint and several creditors.
(3) Where there are more than one trustee, the requirement to notify the trustees is satisfied by notifying any one of them, but notice of a change of trustees must be given to the trustee who will continue to be a trustee after the change takes effect.
Article 2058. Persons entitled to claim
performance of the trustee’s obligations
(1) The beneficiary has the right to request the performance of the fiduciary’s obligations to the extent that they relate to the beneficiary’s right to benefit or vocation to benefit.
(2) The following may request the performance of the trustee’s obligations in the case of a trust for the promotion of public utility:
a) the public official or public authority competent according to law; and
b) any other person who has sufficient interest in the performance of the obligations.
(3) The trustee may request the performance of the obligations of a co-trustee.
Article 2059. Beneficiary and benefit
(1) A person is a beneficiary and is entitled to a benefit if the terms of the trust oblige the trustee in certain circumstances to dispose of all or part of the trust property so as to confer a benefit on that person.
(2) A person is a beneficiary and is entitled to benefit if the terms of the trust allow the trustee in certain circumstances to dispose of all or part of the property so as to confer a benefit on that person, but whether that person is to obtain a benefit depends on the discretion of the trustee or another person.
(3) The beneficiary’s vocation to the benefit becomes a right to the benefit if the trustee notifies the beneficiary of the decision to confer the benefit on him in accordance with the terms of the trust governing the vocation.
(4) The trustee’s right to reimbursement from the trust property does not constitute a right to benefit.
(5) The beneficiary’s right to the benefit becomes irrevocable from the moment of its acceptance. Acceptance is presumed in one of the following cases:
a) the beneficiary is a party to the trust agreement or has countersigned the unilateral declaration establishing the trust;
b) the beneficiary performs acts that undoubtedly indicate the will to be a beneficiary;
c) the trust is for the purpose of guarantee;
d) the beneficiary is a minor or an adult protected by a contractual or judicial protection measure.
(6) If the beneficiary has not accepted and cannot be presumed to have accepted under paragraph (5), the trustee may, by written notice, fix a reasonable time for acceptance. If he has not accepted within the reasonable time, the person shall be deemed to have waived the right to the benefit.
(7) The benefit may consist of any benefit for the beneficiary, such as:
a) acquisition of title to the fiduciary patrimonial mass or a part thereof;
b) the establishment of a limited right over the fiduciary patrimonial mass or part of it;
c) receipt of income obtained from the investment of the property.
(8) In the case of a security trust, the benefit may consist of a performance that satisfies, in kind or by equivalent, the obligation of any person to the beneficiary secured by the trust (secured obligation), including:
a) the acquisition of the fiduciary patrimonial mass or a part of it by the beneficiary who is a creditor on account of the extinguishment of the secured obligation;
b) selling the property or pursuing claims from the fiduciary patrimonial estate and directing the proceeds of the sale towards the extinguishment of the secured obligation;
c) exercising and pursuing the right of guarantee from the fiduciary patrimonial mass and directing the proceeds of the sale towards the extinguishment of the guaranteed obligation.
(9) In the event of the designation of several beneficiaries, they shall be entitled to equal benefits unless otherwise provided. However, if one of them does not accept or waives the right to the benefit or one of them ceases to exist and the transmission of the benefit to successors is prohibited, the shares of the other beneficiaries shall be increased proportionally, unless the method of appointing a replacement beneficiary has been provided.
(10) If none of the beneficiaries accepts, all of them renounce or all of them cease to exist and the transmission of the benefit to the successors is prohibited, the beneficiary is the settlor or, as the case may be, his successors.
Article 2060. The imperative nature of legal provisions
(1) Unless otherwise expressly provided in this title, the provisions of this title are mandatory under penalty of absolute nullity.
(2) To the extent provided by law, the powers of the court provided for in this title may be exercised by the competent public authority according to the law, but may not be exercised by the arbitral tribunal.
(3) The provisions of paragraph (2) do not prevent the submission of disputes arising from trust to arbitration.
Article 2061. Priority of other legal provisions
(1) The security trust is subject to the legal provisions on collateral and, in addition, to the provisions of this title.
(2) The provisions of this title shall apply to legal fiduciary relationships on the capital market to the extent that they do not contravene Law No. 171/2012 on the capital market.
Chapter II
TRUST PROPERTY
Article 2062. Special legal effects of trust
(1) The fiduciary patrimonial mass represents a patrimonial mass distinct from the fiduciary’s own patrimonial mass (personal patrimonial mass of the fiduciary) and from any other fiduciary patrimonial masses of which the fiduciary is the holder.
(2) The fiduciary patrimonial estate may include the right of ownership and other real rights over money and other goods, claims of any nature, guarantees or other patrimonial rights or a set of such rights, present or future (trust rights).
(3) Inalienable rights cannot constitute fiduciary rights.
(4) The fiduciary patrimonial estate also includes the fiduciary’s debts (art. 2069).
(5) Part of the trust property means a share of the trust property, one or more trust rights or a share of the trust right.
Article 2063. Creation or transmission of title
for the benefit of the trustee
(1) A right becomes a trust right and enters the trust property by establishing or, as the case may be, transferring the title to it for the benefit of the trustee in accordance with the publicity formalities or other formalities provided by law, depending on the nature of the right.
(2) The person who holds a right as a fiduciary is considered to be the acquirer for consideration of the fiduciary rights even if the fiduciary is also a beneficiary.
Article 2064. Additions to the fiduciary patrimonial estate
(1) After the establishment of the trust, a right likely to be part of the trust property becomes part of it if the title to it is acquired by the trustee:
a) by performing the trustee’s obligations;
b) as an addition to the fiduciary patrimonial estate or through the use of the estate, including the fruits of fiduciary rights and rights that substitute fiduciary rights;
c) by using information or an opportunity obtained in a fiduciary capacity if the use does not correspond to the terms of the trust; or
d) in lieu of a trust right that the trustee has disposed of in violation of the terms of the trust.
(2) During the term of the trust, the settlor may add rights to the trust property in compliance with the legal provisions regarding the establishment of such a trust.
(3) Where there are several trustees, a right may become part of the trust estate under this article without being acquired by all the trustees.
Article 2065. Exclusion from the fiduciary patrimonial estate
(1) A right ceases to be part of the fiduciary patrimonial mass when the fiduciary ceases to be its holder.
(2) However, the beneficiary may claim a fiduciary right from the acquirer who knew or should reasonably have known that the fiduciary was disposing of the fiduciary right contrary to the terms of the trust.
(3) If there are several trustees, a right remains part of the trust property as long as it belongs to at least one of the trustees in his capacity as trustee.
Article 2066. Mixing of patrimonial property
fiduciary with other rights
(1) If the fiduciary right is mixed with another right belonging to the fiduciary in such a way that the fiduciary right can no longer be identified, in order to determine the share of the mixture that is affected by the fiduciary, the provisions on confusion shall apply (art. 522 para. (7)) as if the fiduciary right and the other right had different owners.
(2) If the other right is part of the personal patrimony of the trustee, the loss, destruction, deterioration or any other reduction of the mixture shall be at the expense of the trustee’s personal share.
Article 2067. Opposability of trust
(1) The affiliation of a right held by the trustee to a fiduciary patrimonial estate is opposable to the extent that:
a) in relation to the fiduciary right registered in a constitutive advertising register, the fiduciary right was registered in the same register;
b) in relation to the right of trust for which the law does not provide for a formality of publicity, the trust was registered in the register of movable real guarantees. In this case, the registration may show as the object of the trust a fiduciary right or may describe the entire patrimonial mass or part of it.
(2) Even if the publicity formalities indicated in paragraph (1) have not been fulfilled, the affiliation of a right held by the trustee to a fiduciary patrimonial estate is opposable:
a) to the person to whom this affiliation was known in another way;
b) if the money that is the subject of the right is recorded in the balance of a fiduciary bank account;
c) if the financial instruments that are the subject of the right are registered in a fiduciary account held, as fiduciary, by the entity authorized by the legislation in the field of capital markets.
(3) If the terms of the trust include a conventional prohibition on alienation or encumbrance of a trust right or if the trustee is obliged, under certain circumstances, to transfer title to a trust right to a specific beneficiary, these encumbrances are enforceable if the formality of publicity of the encumbrance provided by law, according to the nature of the property, has been fulfilled, or if the third party has otherwise become aware of the given circumstance.
(4) The trustee is obliged to ensure the fulfillment and maintenance of the opposability formalities according to this article.
(5) The procedure for registering, modifying and deleting the trust in the register of movable collateral, according to paragraph (1) letter b), is established by Government decision.
Article 2068. Protection of fiduciary property
(1) To the extent that the trust is enforceable against them:
a) the personal creditors of the trustee cannot pursue the trust property, neither within the trustee’s insolvency process nor outside it;
b) the fiduciary’s spouse does not acquire any title to the fiduciary property;
c) the successors of the trustee are not entitled to any benefit from the trust property.
(2) The provisions of paragraph (1) do not prohibit the aforementioned persons from being designated as beneficiaries according to the common rules.
Article 2069. Trust debts
(1) An obligation is a fiduciary duty if it is assumed by the fiduciary:
a) in his capacity as holder of the fiduciary right;
b) for the achievement of the purposes of the trust, in a manner consistent with the terms of the trust;
c) by a contract for consideration or other juridical act for consideration, disclosing to the other party that he is acting as a fiduciary. However, an obligation arising from a contract or other act for consideration concluded by the fiduciary is also a fiduciary duty if the other party did not know and could not reasonably have known that the obligation was assumed contrary to the terms of the fiduciary;
d) as a result of an action or inaction committed in connection with the administration or disposal of the trust property or in connection with the performance of a trust debt; or
e) in other circumstances, in essential connection with the fiduciary patrimonial estate.
(2) The following obligations of the trustee shall also constitute debts of the trust:
a) to provide the benefits due to the beneficiaries according to the terms of the trust;
b) to reimburse, compensate or remunerate a former trustee.
(3) Other obligations of the person who has the capacity of fiduciary are not debts of the trust.
Article 2070. Tracing the fiduciary patrimonial estate
by the creditors of the trust
(1) The creditor to whom the trustee owes a trust debt (trust creditor) assumed by the trustee in accordance with his fiduciary obligations may satisfy his claim from the account of:
a) the fiduciary property; and
b) the personal property of the trustee if, at the time of assuming the trust debt, the creditor did not know and, reasonably, should not have known that the trustee was acting as a trustee or if the terms of the trust provide for the trustee’s obligation to be liable with his personal property for part or all of the trust debts.
(2) The trust creditor to whom the trustee owes a trust debt assumed by the trustee in breach of his fiduciary duties may satisfy his claim from the account of:
a) the personal property of the trustee; and
b) the fiduciary estate if, at the time of assuming the debt, the creditor knew or reasonably should have known that the fiduciary was acting as a fiduciary.
This rule does not apply if the creditor knew or reasonably should have known that the trust debt was assumed in breach of duty by the trustee.
(3) The trustee has the right to reimbursement from the trust property in respect of the debt satisfied pursuant to paragraph (1) letter b).
(4) The trustee shall restore the fiduciary property in respect of the obligation satisfied in accordance with the provisions of paragraph (2) letter b).
(5) The burden of proof to demonstrate that the trust creditor knew or should have known of a particular circumstance provided for in this article shall lie with the trustee.
(6) The provisions of this article do not affect the right of a creditor of a party to the trust to indirectly exercise that party’s right against the trust property.
Article 2071. Tracing the fiduciary patrimonial estate
by the creditors of the founder
(1) The creditor of the settlor may not pursue the fiduciary patrimonial estate, neither within the insolvency process of the settlor, nor outside it.
(2) However, the settlor’s creditor may pursue a right from the fiduciary patrimonial estate only to the extent that:
a) holds a pledge or other real guarantee over this right and the enforceability of this guarantee is acquired, according to the law, prior to the enforceability of the trust; or
b) the establishment or, as the case may be, the transmission of this right was abolished by absolute or relative nullity or declared unenforceable by virtue of a final court decision.
Article 2072. Protection of the settlor and beneficiaries
(1) The settlor, beneficiary and assistant of the trust are not liable in this capacity towards the creditors of the trust.
(2) However, the terms of the trust may provide for the obligation of the settlor to be liable for part or all of the debts of the trust.
Article 2073. The right to enforce the debtor’s obligations
the trust
(1) The trustee is the holder of the claims that are rights of the trust and may request the performance of the obligation from the respective debtor (debtor of the trust).
(2) The provisions of paragraph (1) do not limit:
a) the beneficiary’s right to request the trustee to perform the fiduciary’s obligation to realize the claim against the trust debtor; or
b) the civil procedure provisions that allow the beneficiary to intervene in the legal proceedings against the trust debtor filed by the trustee.
Chapter III
CREATING THE TRUST
Section 1
General requirements for the establishment of a trust
Article 2074. Grounds for establishing a trust
(1) The trust is established by a trust agreement, by a unilateral declaration of the establishment of the trust, by a will, and in cases expressly provided for by law, by an administrative act or a court decision. In all cases, the trust is considered established at the moment of its registration in the register of trusts and similar legal structures, which is created, managed and updated by the State Tax Service. The manner of creating, managing and updating the register of trusts and similar legal structures is established by the Government.
[Art.2074 para.(1)] in the wording of LP268 of 28.11.24, MO498-500/29.11.24 art.680; in force 29.11.24]
(2) The law under which the trust is established shall be supplemented by the provisions of this title, to the extent that it does not contain contrary provisions.
Article 2075. Trust contract
(1) The trust is established by the trust agreement concluded between the settlor and the trustee, by which the settlor undertakes to transmit or, as the case may be, to establish the title over the trust rights to the trustee without any consideration from the trustee, and the trustee accepts the capacity of trustee and undertakes to become the owner of the trust property, to administer them and to dispose of them, in accordance with the terms of the trust, for the benefit of a beneficiary or to promote a public utility purpose.
(2) The trust agreement must provide for:
a) the express agreement of its parties to establish a trust;
b) the identity of the beneficiaries or the category of persons who are or may become beneficiaries, as well as the benefits from the fiduciary patrimonial estate that they are to receive and the conditions under which they will receive them;
c) in the case of a trust for public utility purposes, instead of the data provided for in letter b), the determination of the purpose and the conditions under which it is to be achieved;
d) the rights that are transmitted by the settlor as part of the fiduciary patrimonial estate.
(3) The trust agreement may provide for:
a) a conventional name of the trust, which will also contain the word “trust” or “trust”;
b) the term or condition upon the fulfillment of which the trust is extinguished;
c) the identity of the fiduciary assistant or the manner of his appointment, as well as his discretions and powers;
d) the conditions under which a trustee may be excluded or appointed or the identity of the new trustee in the event that the current trustee resigns, is excluded or otherwise ceases to be a trustee;
e) the conditions under which the trustee may withdraw;
f) the trustee’s remuneration and payment terms;
g) cases in which the trustee is allowed to be in a conflict of interest;
h) empowering a party to the trust to give binding instructions to the trustee;
i) the method of making decisions and concluding juridical acts in the case of multiple trustees;
j) limitations on the trustee’s powers, including prohibitions on alienation or encumbrance of a trust right other than for the benefit of the beneficiaries;
k) the circumstances in which one of the parties to the trust has the right to terminate the trust and the effects of the termination on the trust property;
l) the right of a party to the trust to modify, with or without the consent of other parties to the trust, certain conditions of the trust or to establish a term of the trust established without a term;
m) other clauses not prohibited by law.
(4) The legal provisions regarding donation shall apply to the trust agreement, except in cases where the trust:
a) it is established for guarantee purposes;
b) is a method of extinguishing an obligation; or
c) is established in exchange for the founder obtaining a patrimonial benefit, even if it is obtained through another juridical act.
(5) The beneficiary is the acquirer of the benefits for consideration to the extent that, in exchange for his right to the benefit, he has procured a patrimonial benefit for the settlor, another beneficiary or a third party, even through another juridical act.
Article 2076. Unilateral declaration of incorporation
of trust
(1) The trust is established by a unilateral declaration of the establishment of the trust (declaration of trust), drawn up by the settlor, if it clearly shows that the settlor will be the sole trustee.
(2) The provisions of art. 2075 para. (2)-(5) shall apply accordingly to the declaration of trust.
Article 2077. Trust established by will
(1) If it is provided that the trust is established upon the death of the settlor, the declaration shall not be effective unless it is contained in a testamentary disposition.
(2) The legal provisions on inheritance and, in particular, the legal provisions on subsequent inheritance shall apply as a priority to the trust established by will.
Article 2078. Formal requirements of the contract
or of the declaration of trust
(1) The trust agreement shall be concluded in writing.
(2) If the law requires authentic form for the establishment or, as the case may be, the transmission of a right, the trust agreement, in order to produce such a legal effect, shall also be concluded in authentic form.
(3) The declaration of trust shall be concluded in authentic form.
(4) The requirement set out in paragraph (2) shall also be considered met if, pursuant to the trust agreement in written form, the settlor and the trustee conclude an act of delivery-receipt of the trust right in authentic form.
(5) If the settlor adds additional trust rights to those initially provided, the right is established or, as the case may be, transmitted to the trustee on the basis of an amendment to the trust agreement or on the basis of a deed of delivery-receipt of the trust right, the respective deed mentioning the trust agreement or the trust declaration.
Article 2079. Filing with advertising registers
(1) For the purpose of fulfilling the advertising formalities provided by law, in a register other than the register of trusts and similar legal structures, the following may be filed with the respective advertising register:
[Art.2079 par.(1) amended by LP268 of 28.11.24, MO498-500/29.11.24 art.680; in force 29.11.24]
a) the trust agreement or, as the case may be, an authentic form, concluded between the settlor and the trustee pursuant to the trust agreement in written or authentic form; or
c) the declaration of assignment of the right to trust, in authentic form, concluded by the settlor pursuant to the trust declaration.
(2) If the trust agreement or trust declaration contains a clause prohibiting alienation or another limitation of the trustee’s rights, it shall not be noted in the public register unless it is included in the document filed with the respective public register in accordance with paragraph (1).
Article 2080. Conventional name of the trust
(1) If a conventional name for the trust has been provided, it shall be used in a manner that allows for a better separation of the trust property and can be mentioned in the documents concluded by the trustee.
(2) The fiduciary is obliged not to use words or abbreviations that would create confusion that the fiduciary is a legal person.
Article 2081. Term of trust
(1) The trust may not exceed 30 years from its establishment unless the law provides for another term.
If the terms of the trust provide for a term of trust exceeding 30 years, the term shall be automatically reduced to the maximum term permitted by law. The right of the parties to extend the term of the trust shall remain unaffected.
(2) By way of derogation from the provisions of paragraph (1):
a) if the beneficiary is a minor or an adult protected by a contractual or judicial protection measure, the terms of the trust may provide that the trust will last until the adult reaches majority, until the date the protection measure regarding the adult ceases, or until the date of his or her death;
b) the trust for the purpose of guarantee shall last until the obligations guaranteed by it are extinguished, unless the terms of the trust provide otherwise.
Section 2
Cancellation
Article 2082. Annulment for defect of consent
by the founder
The legal provisions regarding the nullity of juridical acts apply to the trust established free of charge during the life of the settlor with the following adaptations:
1) the settlor has the right to annul the trust or a condition of the trust if the trust was constituted or the condition was included on the basis of an error of fact or law, regardless of whether other parties to the trust knew about the error;
2) the settlor who was dependent on the beneficiary or was the more vulnerable party in the fiduciary relationship may annul the trust or the condition of the trust to the extent that it provides a benefit to that beneficiary, unless that beneficiary demonstrates that he did not take undue advantage of the settlor’s situation by receiving an excessive benefit or a grossly unfair advantage;
3) the limitation period for the action for relative nullity does not begin to run as long as:
a) no one has disturbed the exercise by the settlor, in his capacity as beneficiary, of his exclusive right to benefit from the trust; or
b) a beneficiary, other than the settlor, holds a right to a benefit that is not yet due; and
c) in the situation provided for in letter a), acceptance of the benefit shall not be regarded as an implicit confirmation of the revocable condition of the trust.
Article 2083. Defense of trustees and third parties
after cancellation
(1) The title of the trustee to the trust right is not affected by the cancellation.
(2) Unless the trustee knew or reasonably ought to have known of the ground for rescission of the trust or condition of the trust:
a) the trustee is not responsible for the administration or disposal of the trust property that corresponded to the terms of the trust before the cancellation;
b) the trustee may raise against the person entitled to a benefit as a result of the cancellation the same objections as the trustee could have raised against the beneficiary who was entitled to that benefit before the cancellation; and
c) the trustee retains the right of reimbursement against the trust property that arose before the cancellation.
(3) The cancellation of the trust does not affect the rights of the third party who, before the cancellation, acquired from the beneficiary the right to benefit or a guarantee or other limited right over that right to benefit if:
a) the third party did not know and should not reasonably have known the basis for the revocation of the trust or the condition of the trust; and
b) the third party acquired the right to the benefit for consideration.
Article 2084. Unrealizable purposes of the trust
(1) A trust that has a purpose other than to benefit the beneficiaries or to promote a public utility purpose is considered to be a trust for the settlor.
(2) The trustee has revocable powers to dispose of the trust property in accordance with the initial trust to promote the purpose that can no longer be achieved to the extent that:
a) the promotion of that purpose does not contravene public order, good morals and the law, nor is it contrary to the public interest;
b) it can be verified, without any doubt, whether a certain disposition of the fiduciary patrimonial mass is made to promote the purpose or contrary to it; and
c) the disposition is not excessively disproportionate in relation to the likely benefit generated by this disposition.
Chapter IV
TRUST CONDITIONS
Article 2085. Interpretation
If the meaning of a term of trust cannot be otherwise determined, priority will be given to interpretations that:
a) give effect to all words and expressions used in their entirety;
b) do not allow the reasonable conduct of the trustee to be regarded as a failure to perform;
c) do not allow a gap in the stipulations regarding the disposition of the fiduciary patrimonial property or reduce this gap as much as possible; and
d) confers on the settlor the right to benefit or to the expansion of this right if the trust is established free of charge during the life of the settlor, and the settlor has reserved such a right or can be interpreted as having reserved it.
Article 2086. Incomplete disposition of the table
fiduciary patrimonial
(1) If the terms of the trust do not indicate who the beneficiary is, the disposition of the trust property shall be made for the benefit of the settlor to the extent that the terms of the trust or the law do not indicate otherwise.
(2) However, in the event of incomplete disposition of the fiduciary patrimonial mass on the grounds that the fiduciary cannot be established for the promotion of a public utility purpose or on the grounds that the performance of all fiduciary obligations resulting from such a type of fiduciary does not exhaust the fiduciary patrimonial mass, the disposition of the fiduciary patrimonial mass shall be made for the promotion of a public utility purpose that is closest to the initial purpose.
Article 2087. Determination of beneficiaries
(1) The condition of the trust granting the right to a benefit is valid only if the beneficiary is sufficiently determined by the settlor or is otherwise determinable on the date on which the benefit becomes due.
(2) A condition of the trust that allows the trustee to provide benefits to persons in a particular category designated by the trustee or by a third party shall be effective only if, at the time the designation is permitted, it is established beyond doubt that the person belongs to that category of persons.
(3) The person may be a beneficiary even if he/she was born or established after the establishment of the trust.
Article 2088. The determinable nature of the right
to the benefit or the vocation to the benefit
(1) The right to benefit and the vocation to benefit are valid only to the extent that the benefit is sufficiently determined under the terms of the trust or is otherwise determinable at the time it is due or must be granted.
(2) Where the benefit to be granted is not determinable solely because the third party is unable or unwilling to make the choice, the trustees may make that choice unless the terms of the trust provide otherwise.
Chapter V
RIGHT TO DECISION AND POWERS
trustee
Section 1
The trustee’s right to decide
Article 2089. Discretion of the trustee
Unless the law or the terms of the trust provide otherwise, the trustee:
a) is free to decide whether or not to exercise his powers and discretions, when to exercise them and how to exercise them in order to better perform his fiduciary duties;
b) is not obliged to respect any discretion or wish of the parties to the trust and other persons;
c) is not required to disclose the reasons for exercising discretion, except where the trust is for the promotion of a public utility purpose.
Article 2090. Decision-making by several people
fiduciary
(1) In the event that there are several trustees, the powers and discretions of the trustee shall be exercised by simple majority decision, unless the law or the terms of the trust provide otherwise.
(2) The provisions of paragraph (1) shall take precedence over the legal provisions regarding joint ownership or the holding of other joint rights, each trustee having the obligation, as a co-owner, to exercise his rights over the share in a manner that will implement the decisions legally adopted by the trustees.
Article 2091. Conflict of interest in the exercise of
empowerment or discretion
Unless the terms of the trust provide otherwise, the trustee may not participate in making a decision to exercise or not to exercise a power of attorney or discretion if the effect of the decision is to grant, confirm or expand the right to benefit or the vocation to benefit in favor of the trustee in his capacity as beneficiary.
Section 2
Powers of the trustee
Article 2092. General powers of the trustee
(1) The trustee is the holder of the trust rights and exercises them in this capacity.
(2) The trustee is the debtor of the trust’s debts and executes them in this capacity.
(3) Acting as the holder of the trust rights and as the debtor of the trust debts, the trustee is obliged to respect the limits of the powers imposed by the terms of the trust and by law.
(4) The provisions of Articles 2093-2099 provide for the powers of the trustee in specific cases if they have not been limited or modified by the terms of the trust.
Article 2093. Limits in case of minimum number of trustees
(1) If there are fewer trustees than the minimum number established by the terms of the trust or by law, the trustees may only exercise:
1) the right to appoint trustees;
2) the right to request the intervention of the court in trust;
3) the right provided for in art. 2110; and
4) any other right or power of the trustee to the extent that such exercise:
a) is expressly provided for by the terms of the trust in this situation;
b) is necessary for the preservation of the trust property, including to protect and pursue in court the trust rights; or
c) is necessary to satisfy the trust’s debts that are due or are about to become due.
(2) If the trust is established by the establishment or, as the case may be, the transfer of title to the trust rights to at least two trustees, the minimum number is two unless the terms of the trust provide otherwise.
Article 2094. Power to appoint a representative
(1) The fiduciary may appoint a trustee who will act on behalf of the fiduciary and, subject to the limits established in Articles 2095-2099, may entrust another person with the performance of fiduciary obligations.
(2) Several trustees may authorize one of them to act on their behalf.
(3) However, the personal participation of the trustee is necessary for decisions deciding on the exercise or manner of exercise of:
a) the discretion to grant a benefit to a beneficiary or to choose a public utility purpose to be promoted or to choose the way to promote it;
b) the power of attorney to change the trustees; or
c) the power to delegate the performance of fiduciary obligations.
(4) The person entrusted with the performance of the obligation bears the same obligations as the trustee, to the extent that they relate to the entrusted performance.
(5) The fiduciary is obliged not to conclude, without good reason, a mandate contract that is not in written form or that includes the following conditions:
a) the condition according to which the mandate is irrevocable;
b) conditions that exclude the obligations of the agent established by legal provisions or that modify them to the detriment of the principal;
c) the condition that allows the agent to delegate powers;
d) conditions that allow the trustee to be in a conflict of interest;
e) the condition that excludes or limits the liability for non-performance of the agent towards the principal.
(6) The trustee is obliged to supervise the performance by the trustee and, if necessary under the circumstances, to give instructions to the trustee or resort to the termination of the mandate.
Article 2095. Power to transfer title
the person who undertakes to be a fiduciary
(1) The trustee may transfer the trust rights to the person who undertakes to be a trustee in relation to the given rights and to dispose of them according to the instructions of the original trustee, and in the absence of such instructions, to return, on first demand, the title to the rights to the original trustee.
(2) The acquirer must be:
a) the person who assumes such obligations in the course of his usual activity;
b) legal person controlled by the trustee; or
c) legal person designated by a legal provision as eligible to fulfill the obligations of the trust or which meets the conditions established by those legal provisions for this purpose.
(3) The provisions of art. 2094 paragraphs (5) and (6) shall apply accordingly.
Article 2096. Power to surrender possession
a depository
(1) The trustee may transfer the property that are the subject of the trust rights and the documents relating to these property into the possession of another person who undertakes to keep them and return them to the trustee upon first request.
(2) The provisions of art. 2095 paragraphs (2) and (3) shall apply accordingly.
Article 2097. Power to delegate
The fiduciary may entrust another person with the performance of any fiduciary obligation and the exercise of any powers, including the exercise of a discretion, the power to dispose of the fiduciary rights and the power to delegate, but remains responsible for the performance.
Article 2098. Power to choose investments
To the extent that he is obligated to invest the trust property, the trustee may make any type of investment and may determine the specific way to invest that best suits that obligation.
Article 2099. Power to submit accounts
audit fiduciary
The terms of the trust or the law may require the trustee to have the trust accounts audited by an independent and competent auditor.
Chapter VI
TRUSTEE’S RIGHTS AND OBLIGATIONS
AND OF THE TRUST ASSISTANT
Section 1
Duties of the trustee
Article 2100. General obligation of the trustee
(1) The trustee is obliged to administer the trust property and exercise the power to dispose of the property as a prudent administrator of the affairs of another for the benefit of the beneficiaries or for the promotion of a public utility purpose, in accordance with the terms of the trust and the law.
(2) In particular, the trustee is obliged to act with due skill and prudence, with fairness and good faith.
(3) Unless the terms of the trust provide otherwise:
a) the trustee has the special obligations set out in this section; and
b) the administration or disposal of the fiduciary patrimonial estate is considered to be for the benefit of the beneficiary only if it is done for the economic benefit of this person.
(4) The trustee is obliged to comply with the terms of the trust as stipulated.
Article 2101. Level of competence and prudence
(1) The fiduciary is obliged to act with the competence and prudence expected of a competent and careful person managing the affairs of another, taking into account also whether the fiduciary is entitled to remuneration.
(2) If acting in the exercise of a profession, the fiduciary is obliged to act with the competence and prudence expected of members of that profession.
Article 2102. Obligations to separate, protect
and to ensure
(1) The trustee is obliged to keep the fiduciary patrimonial mass separate from other patrimonial masses and to keep the fiduciary rights, including the property that are the subject of them, safe.
(2) In particular, the trustee may not invest in rights over property that are exposed to a high risk of theft, unless he shows special care in their safekeeping. If the property is a document that contains the right to perform a service owed to the bearer of the document (bearer title), the trustee is considered to have shown that level of care if the document is deposited with a depositary for safekeeping in accordance with art. 2096.
(3) To the extent possible and appropriate, the trustee is obliged to insure the property subject to the trust right against the risk of loss, from the trust property.
Article 2103. Obligation to inform and report
(1) The trustee is obliged to inform the beneficiary entitled to the benefit about the existence of the trust and about the right of that beneficiary.
(2) The trustee is obliged to make reasonable efforts to inform the beneficiary who has a vocation about the existence of the trust and about the vocation of that beneficiary.
(3) Upon request by other parties to the trust, but at least once a year, the trustee is obliged to provide information on the status and investments of the trust property, the trust debts and the dispositions of the trust rights, as well as the income obtained. Any clause that excludes the obligation to report is absolutely null and void.
Article 2104. Obligation to keep records of the trust
The fiduciary is obliged to keep records of the fiduciary property (trust records).
Article 2105. Obligation to allow inspection
and copying trust documents
(1) The trustee must allow the beneficiary, as well as any other person entitled to demand the performance of the trustee’s obligations, to inspect the trust documents and make copies of them at that person’s expense.
(2) The provisions of paragraph (1) shall not apply to:
a) the opinions of lawyers regarding the current or planned legal proceedings of the trustee in this capacity against the person wishing to inspect the documents, as well as the evidence collected for these proceedings;
b) communications between the trustee and other beneficiaries and other communications the disclosure of which would result in a breach of the confidentiality owed by the trustee in this capacity to another person.
(3) The trustee may refuse inspection and copying of trust documents to the extent that they relate to information transmitted under a confidentiality obligation to the trustee in this capacity, if the beneficiary does not provide adequate assurances that it will maintain confidentiality.
(4) If the trust is not for the promotion of a public utility purpose, the trustee may also refuse inspection and copying of documents to the extent that the documents disclose the reasons for the trustees’ decision to exercise or not to exercise a discretion, the trustees’ deliberations preceding the adoption of the decision, and the materials relevant to the deliberations.
(5) The terms of the trust may extend the scope of the right of inspection and copying beyond the scope provided for in this article.
(6) For the purposes of this article, the following are trust documents:
a) the documents containing the trust agreement, the trust declaration, the will, as the case may be, as well as any juridical acts or court decisions modifying the terms of the trust;
b) minutes of trustee meetings, if any;
c) registrations made, notifications and other written communications received by the trustee in this capacity, including the opinions of lawyers employed by the trustee on behalf of the trust property;
d) documents containing juridical acts concluded by trustees;
e) receipts received on the occasion of the disposition of trust rights; and
f) trust records documents.
Article 2106. Obligation to invest
(1) The trustee is obliged to invest the fiduciary property, to the extent that they are susceptible to investment, in particular:
1) to alienate for consideration rights that normally do not generate income or increase their value and to invest the resulting product;
2) to receive business advice on the investment of the property if the trustee lacks the necessary expertise for the efficient and prudent investment of the property of the size and nature of the trust property;
3) to make a distribution of investments in which in total:
a) the risk of failure or loss of specific investments is diversified; and
b) the expected gain significantly exceeds the potential failure or loss; unless the fiduciary property are so small that the distribution of investments is inappropriate; and
4) review at appropriate intervals whether the investment should be maintained or changed.
(2) The trustee is not obliged to invest trust rights:
a) which will certainly have to be transferred or used by the beneficiary or to satisfy a debt of the trust; or
b) whose investment would otherwise prevent the trustees from fulfilling their other fiduciary duties.
(3) The obligation to invest does not empower the trustee to dispose of those trust rights which, according to the terms of the trust, must be retained by the trustees or transferred in kind to the beneficiary.
Article 2107. Obligation not to acquire rights
of the trust or rights of creditors
the trust
(1) The trustee is obliged not to purchase trust rights or trust creditor rights over the trust property.
(2) The contract for the sale of the fiduciary right concluded through the failure to perform this obligation may be annulled by any other party to the fiduciary or any person entitled to request the performance of the fiduciary obligations.
(3) The right of cancellation is additional to any defense resulting from the failure to perform fiduciary duties.
(4) This article shall apply accordingly to other contracts for the acquisition or exploitation of trust rights or a claim of a trust creditor.
Article 2108. Obligation not to obtain any enrichment
unauthorized or unauthorized advantage
(1) The fiduciary is obliged not to use the fiduciary property or the information or opportunity obtained as a fiduciary to obtain enrichment if that use is not permitted by the terms of the trust.
(2) The fiduciary may not offset a claim against the beneficiary that he holds in a capacity other than fiduciary with the beneficiary’s right to benefit.
Article 2109. Obligations in relations with co-trustees
The trustee is obliged:
1) to cooperate with the co-fiduciaries in the performance of fiduciary duties; and
2) take appropriate measures if he knows or has reason to suspect that:
a) a co-fiduciary has failed to perform any fiduciary duty or such failure is anticipated; and
b) non-performance may cause or has caused damage to the trust property.
Section 2
Trustee rights
Article 2110. Right to reimbursement from the estate
fiduciary patrimonial
The fiduciary has the right to reimbursement from the fiduciary property of the expenses incurred for the performance of fiduciary obligations, including the settlement of the fiduciary’s debts.
Article 2111. Right to remuneration from the table
fiduciary patrimonial
(1) The trustee is entitled to remuneration from the trust property in the manner provided for by the terms of the trust.
(2) Unless the terms of the trust provide otherwise, the trustee acting as a fiduciary in the exercise of a business activity is entitled to reasonable remuneration from the trust property for the work performed in the performance of the fiduciary duties.
(3) The provisions of paragraph (2) shall not apply if:
a) the trustee, as beneficiary, is entitled to a significant benefit from the trust property;
b) the trust was established pursuant to a contract between the trustee and the settlor; or
c) the trust is for the promotion of a public utility purpose.
Article 2112. Rights regarding unauthorized acquisitions
(1) This Article applies where:
a) the fiduciary acquires a right or obtains other enrichment as a result of the failure to perform a fiduciary duty; and
b) the right enters the fiduciary patrimonial mass or the enrichment is added to the fiduciary patrimonial mass as a result of the trustee’s surrender of the income obtained as a result of non-performance.
(2) The trustee shall be entitled to reimbursement of the price he had to pay and of other expenses he had to bear in order to effect the acquisition. If he has previously fulfilled in whole or in part the obligation provided for in art. 2119, the trustee shall be entitled to reimbursement from the trust estate to the extent that, after the acquisition, the trust estate received more than was necessary to restore it.
(3) The trustee is also entitled to appropriate remuneration if:
a) the acquisition was made in good faith to increase the fiduciary property; and
b) the trustee would have been entitled to remuneration under art. 2111 if the acquisition had been made in the performance of the fiduciary duty.(4) If the acquisition was made in breach of the duty provided for in art. 2108, but the beneficiary validly approved the acquisition, then the trustee may waive the rights provided for in paragraphs (2) and (3) of this article and take over the beneficiary’s right to the benefit obtained from the acquisition.
(5) The trustee is not entitled, under this article, to more than the value of the acquisition.
Article 2113. Right to reimbursement from beneficiaries
(1) If the trustee’s right provided for in art. 2110 exceeds the trust property, the trustee may take action against the beneficiaries to reimburse the excess.
(2) The beneficiary’s liability under paragraph (1):
a) is limited to the enrichment that the beneficiary obtained under the terms of the trust; and
b) is reduced or excluded by invoking the exception of diminution of enrichment.
(3) The trustee shall forfeit the right to reimbursement provided for in paragraph (1) upon the expiry of a period of 6 months from the date on which this right arose.
Article 2114. The right to insure against liability
personal expenses at the expense of the estate
FIDUCIARY
(1) The trustee is entitled to reimbursement from the trust property of insurance premiums and other expenses reasonably incurred by the trustee to obtain liability insurance as provided for in art. 2119.
(2) The provisions of paragraph (1) shall not apply to the extent that:
a) the fiduciary is entitled to remuneration for the performance of fiduciary duties; or
b) the insurance covers liability arising from intentional non-performance or gross negligence.
Section 3
Duties of the fiduciary assistant
Article 2115. Obligations of the fiduciary assistant
(1) The fiduciary assistant is obliged to disclose the identity of the fiduciaries if this information is known to him and is not otherwise obvious.
(2) When deciding to exercise a power of attorney, the fiduciary assistant is obliged:
a) to act in good faith; and
b) not to obtain an enrichment that is not permitted by the terms of the trust.
Chapter VII
LEGAL MEANS OF DEFENSE
IN CASE OF NON-PERFORMANCE
Section 1
Performance in kind, supervision
judicial and other means of defense
Article 2116. Forced performance in kind
(1) Forced performance in kind of the fiduciary obligation implies preventing the fiduciary from disposing of or performing other actions with a fiduciary right that does not correspond to the terms of the fiduciary.
(2) Performance in kind may not be required by force if it involves the exercise of discretion by the trustee.
Article 2117. Judicial supervision
(1) At the request of a party to the trust or of the person entitled to request the forced performance of the fiduciary obligation, the court may annul the decision of the trustees or the trustee assistant regarding the exercise or non-exercise or regarding the manner of exercising a power of attorney or discretion granted by the terms of the trust or by law.
(2) The former trustee who was excluded by the trustees or the trustee assistant without his consent has the right to apply to the court for the annulment of this decision.
(3) The court may annul a decision of the trustees or the trustee assistant that constitutes an abuse of power, that was taken in excess of the powers of the trustees or the trustee assistant, or that otherwise violates the terms of the trust.
(4) If it is found that the fiduciary unreasonably refuses or fails to exercise a power of attorney or discretion, the court may authorize the party to the trust who brought the action to exercise it within the limits established by the court.
(5) In any court proceeding regarding the trust, the court shall summon all parties to the trust and shall hear the parties who have appeared.
Article 2118. Other legal means of defense
(1) The law or the terms of the trust may provide for the following legal remedies for one of the parties to the trust in the event of non-performance or suspected non-performance of fiduciary obligations:
a) reports and inspections regarding the fiduciary patrimonial estate and its administration, as well as the dispositions thereof, in the manner determined by the court decision;
b) payment or transfer to the court account of sums of money or other property that are the subject of trust rights;
c) the appointment by court decision of an administrator to administer the fiduciary patrimonial estate;
d) the exercise of the rights and powers of the trustee by a public official or public authority, in particular in relation to trusts promoting a public utility purpose;
e) suspension of the rights and powers to administer and dispose of the property.
(2) Public authorities with supervisory powers over fiduciaries that are licensed and/or authorized entities are entitled to request the court to take the measures provided for in paragraph (1).
Section 2
Repair of damage and surrender
unjust enrichment
Article 2119. Liability of the trustee to restore
fiduciary patrimonial estate
(1) The fiduciary is required to restore the fiduciary property to the extent of the damage caused by the failure to perform the fiduciary obligation if the failure to perform is without justification and results from the fact that he did not exercise the necessary level of competence and prudence.
(2) The trustee shall not be liable solely because a co-trustee, a trustee or another person entrusted with the performance or a permitted acquirer of the trust right has caused damage to the trust property.
(3) The provisions of paragraph (2) shall not affect the fiduciary’s liability resulting from:
1) pursuant to paragraph (1), due to the failure of the trustee himself to perform his fiduciary duty, in particular:
a) the obligation to act with the necessary level of skill and prudence when choosing to appoint or employ that person and when consenting to the terms of employment; or
b) the obligation to supervise the performance offered by the person concerned and, if circumstances require it, to take measures to protect the fiduciary property;
2) from the delegation of performance (art. 2097);
3) based on the act of the trustee’s agent or representative; or
4) because the trustee instigated, aided or abetted the non-performance committed by that person.
(4) The provisions of Article 19 shall apply accordingly to the determination of the amount of the restoration obligation.
(5) The following rights of the trustee are suspended as long as the trustee has not fully restored the trust property:
a) the right to reimbursement from the fiduciary property; and
b) the right to benefit that the trustee would have as a beneficiary.
(6) The provisions of this article shall apply unless otherwise provided by the terms of the trust.
Article 2120. Liability of the trustee
to compensate the beneficiary
(1) The fiduciary who is liable under Article 2119 is also obliged to compensate the beneficiary who, despite the restoration of the fiduciary property, does not obtain a benefit to which he was entitled or, had there been no non-performance, would have been entitled under the terms of the trust.
(2) The beneficiary has the same right to compensation as that arising from the non-performance of the contractual obligation.
(3) The provisions of this article shall apply unless otherwise provided by the terms of the trust.
Article 2121. Surrender of unauthorized enrichment
If the trustee obtains an enrichment as a result of the non-performance of the obligation provided for in art. 2108 and that enrichment has not entered the trust property pursuant to art. 2064, the trustee is obliged to add the enrichment to the trust property or, if not possible, to add its monetary value.
Article 2122. Joint and several liability
(1) Where several trustees are liable for the same non-performance, their liability shall be joint and several.
(2) Among the joint and several debtors, the shares of liability are proportional to the fault of each debtor in relation to the non-performance, taking into account the competence and experience as a fiduciary of each debtor.
(3) The debtor who has consented to a non-performance has the same fault as the co-debtors who committed the non-performance.
Article 2123. Loss of the right to benefit
of the participating beneficiary
(1) If the beneficiary participated in the non-performance by the trustee, the court may decide, at the request of that trustee or another beneficiary, that the beneficiary be deprived of the right to the benefit.
(2) The beneficiary who gave valid consent to the non-performance, but did not participate in it, may be deprived of the right to the benefit only to the extent that he/she has enriched himself/herself from the non-performance.
(3) To the extent that the beneficiary is deprived of the right to a benefit under this article, the benefit that would otherwise have been due to that beneficiary shall be applied to extinguish the liability of the trustee until the liability is extinguished or the right to the benefit is exhausted.
Section 3
Exceptions
Article 2124. Beneficiary’s consent to non-performance
(1) The fiduciary shall not be liable for the restoration, compensation or surrender of the enrichment to the extent that it would benefit the beneficiary who validly consented to the non-performance.
(2) The beneficiary consents to non-performance when he agrees with the conduct of the trustee that constitutes non-performance and:
a) knows that the conduct in question constitutes a breach; or
b) it is obvious that the respective behavior represents a failure to perform.
(3) The provisions of paragraph (1) shall apply regardless of whether the non-performance has enriched or disadvantaged the beneficiary who gave his consent.
(4) If the beneficiary participates in the non-performance as a trustee, the provisions of paragraph (1) shall apply in relation to any co-trustee who should have been liable. The right of reimbursement between the solidary debtors regarding the non-excluded part of the liability to restore the trust property or to compensate the beneficiary shall remain unaffected.
(5) Consent shall not be considered valid if it is given by error caused by false information provided by the fiduciary or by the fiduciary’s failure to fulfill the obligation to provide information.
Article 2125. Extinct prescription
The limitation period for an action based on the failure to perform fiduciary duties cannot begin to run against the beneficiary before the beneficiary’s right to the benefit expires.
Article 2126. Defense of the trustee
(1) The fiduciary is discharged if he executes for the benefit of the person who, after reasonable investigation, appears to be entitled to the benefit granted.
(2) The right of the beneficiary who was entitled to the benefit against the acquirer of the benefit, based on the legal provisions regarding unjustified enrichment, remains unaffected.
Chapter VIII
CHANGING TRUSTEES OR ASSISTANTS
fiduciary
Section 1
General provisions regarding the change of trustees
Article 2127. Power to change trustees
(1) After the establishment of the trust, a person may be appointed as a trustee, and a trustee may resign or be excluded:
a) pursuant to a power of attorney of a party to the trust granted by the terms of the trust or by law;
b) by court decision on the grounds provided by law.
(2) The exercise of a power of attorney within the meaning of paragraph (1)(a) shall be effective only if it is in writing. The same rule shall apply to a binding instruction given to the trustees by a party to the trust regarding the exercise of such power of attorney.
(3) The exercise of the power of attorney granted by the terms of the trust by the person who is not, at that time, a trustee produces legal effects only from the moment the current trustees are notified of the exercise.
(4) The resignation or exclusion of a sole trustee shall only produce legal effects if a new trustee is appointed at the same time.
Article 2128. Power of attorney for change of fiduciaries
of the trustees
(1) The power granted to trustees by law may only be exercised:
a) by unanimous decision; and
b) if at that time the fiduciary assistant does not have an appropriate power of attorney or if the fiduciary assistant cannot or does not exercise that power of attorney within a reasonable time after the request in this regard from the fiduciaries.
(2) Under the conditions of paragraph (1), the trustees are obliged to exercise their powers under the law, in compliance with the joint instruction given by the beneficiaries if the beneficiaries have the right to joint resolution of the trust with respect to the entire trust property.
(3) The terms of the trust may modify or exclude the power of change granted to the trustees under the law.
Section 2
Appointment of trustees
Article 2129. General limits on designation
(1) The appointment of a person as a trustee shall not be effective if:
a) it is clear that the co-trustees would have the power to exclude that person, if appointed, on the grounds that the person is unable to act, refuses to act or is unsuitable;
b) the designated person does not agree to act as a trustee; or
c) the designation exceeds the maximum number of trustees provided for by the terms of the trust.
(2) The stipulation in the terms of the trust that there shall be only one trustee shall be deemed to be a limit of a maximum of two trustees.
Article 2130. Designation by the fiduciary assistant
or trustees
(1) The trustees may appoint one or more additional trustees.
(2) The current trustees may appoint a trustee to replace the person who has ceased to be a trustee.
(3) Unless the terms of the trust provide otherwise, the appointment by the trustee of his own person shall have no effect.
Article 2131. Designation by court decision
(1) If no one has the power of attorney or all refuse to exercise the power of appointment, at the request of any party to the trust or of any person entitled to request the performance of the fiduciary obligation, the court may appoint:
a) a trustee who will replace the person who has ceased to be a trustee; or
b) one or more additional trustees, if the appointment would promote efficient and prudent administration and disposal of the trust property in accordance with the terms of the trust.
(2) Before the appointment pursuant to paragraph (1), the court shall appoint a provisional trustee and shall apply measures to secure the trust property if without this, damages would be caused to it.
Section 3
Resignation of the trustee
Article 2132. Renunciation with the consent of the assistant
of the trust or of the co-trustees
(1) The trustee may resign from his/her position only with the consent of the trustee assistant or the co-trustees if, after the resignation, at least two current trustees or a special trustee remain.
(2) The trustee who may appoint a new trustee in the event of the trustee’s resignation may give his consent to the resignation.
(3) The trustee may consent to a waiver without the consent of the current trustees only if a new trustee is appointed at that time.
(4) Current trustees may consent to a waiver.
(5) The waiver takes effect from the moment the fiduciary patrimonial mass is transmitted to the new fiduciary and the status of holder of the mass is deleted from all publicity registers.
(6) The following are considered special fiduciaries:
a) the public official or public authority who has the authority to act as a fiduciary; and
b) any legal person specified as such in a legal provision or which satisfies the conditions laid down by the legal provisions for this purpose.
Article 2133. Waiver with court approval
court
The court may approve the waiver of a fiduciary who has not obtained the necessary consent to the waiver if it determines that it is equitable to release the fiduciary from fiduciary obligations, taking into account in particular whether after the waiver an efficient and prudent administration and disposition of the fiduciary property in accordance with the terms of the trust can be ensured.
Section 4
Exclusion of trustees
Article 2134. Exclusion by co-trustees or
by the fiduciary assistant
(1) If the court could exclude a trustee on the grounds that he is unable to act, refuses to act, or is not suitable for the performance of the office, the current co-trustees or the trustee assistant may exclude that trustee.
(2) The exclusion of a trustee by the co-trustees or the trustee assistant shall take effect only after notification of the trustee of his exclusion.
Article 2135. Exclusion by court decision
At the request of any party to the trust, the court may exclude a trustee without his consent and regardless of the terms of the trust, if there are good reasons, in particular on the grounds that:
a) the trustee is materially or legally unable to fulfill his obligations, including not having full capacity to exercise them, is deceased or the legal person has entered into liquidation;
b) there has been or is anticipated to be a material failure to perform any fiduciary duty;
c) the trustee, on a permanent or systematic basis, is in fundamental disagreement with the co-trustees on a matter requiring a unanimous decision of the trustees; or
d) the fiduciary has other interests that irremediably conflict with the performance of fiduciary obligations.
Section 5
Effect of change of trustees
Article 2136. Effect on obligations and rights
fiduciary
(1) A person who is appointed as a trustee becomes bound by the trust and acquires the corresponding rights and powers. Under the terms of this article, a trustee who resigns or is excluded is released from the trust and loses the corresponding rights and powers.
(2) The obligation to cooperate with the co-trustees shall cease only upon the expiry of a reasonable period after the waiver or exclusion.
(3) The right of reimbursement of the former trustee against the trust property shall be preserved in the form of a right against the current trustees. The right of reimbursement, compensation or remuneration by the beneficiary shall remain unaffected.
(4) The former trustee remains bound by:
a) the obligation provided for in art. 2108;
b) the debts of the trust, but only to creditors whom the trustee did not inform, before assuming the debt of the trust, that he was acting as a trustee; and
c) obligations resulting from the failure to perform fiduciary duties.
Article 2137. Transfer and deprivation of trust rights
(1) The trustees who are holders of the trust right are obliged to transfer the title to the respective right to the new trustee in an appropriate manner.
(2) The transfer of title to a person appointed as trustee does not deprive such title of the current trustees.
(3) The title shall be transferred on the basis of a deed of delivery-receipt of the title concluded by all the trustees who are the holders of the trust right and the newly appointed trustee. If the law imposes certain formal conditions for the establishment or, as the case may be, the alienation of the title over certain trust rights, the same conditions shall also be required for the deed of delivery-receipt of the title regarding that trust right. The provisions of art. 2063 shall apply accordingly.
(4) If one of the trustees holding the title to the trust right refuses to execute the deed of delivery-receipt of the title, any of the other trustees, the newly appointed trustee or the person who duly appointed the new trustee shall have the right to request the court to issue a decision in lieu of the deed of delivery-receipt of the title. Such action shall be noted in the public register in which the respective trust right is registered.
(5) If it is not necessary to appoint a new trustee, the person who ceases to be a trustee shall execute a deed of delivery-receipt of the title to all current trustees.
Article 2138. Transmission of trust documents
The successor trustee or the new trustee shall be entitled to receive the trust documents in the possession of the former trustee. The person in possession shall be entitled to make and keep copies at his own expense.
Article 2139. Effect of the death or liquidation of the trustee
(1) If one of several trustees dies or the legal person trustee goes into liquidation, the trust property shall continue to belong to the remaining trustees. This rule shall apply so that the successor to the personal property of the deceased or liquidated person shall not become a party to the trust.
(2) If the sole trustee dies, the successors of the deceased trustee become trustees and, respectively:
a) become bound by fiduciary duty, as well as acquire the respective rights and powers;
b) is liable for the debts of the trust assumed by the deceased trustee within the limits of the deceased’s estate; and
c) become the holders of the fiduciary patrimonial property, but can only exercise the powers provided for in art. 2093 paragraph (1), regardless of the number of successors.
(3) The trustee’s testamentary disposition regarding the trust estate shall not produce effects, but the terms of the trust may grant the trustee the power to appoint, by his testamentary disposition, a trustee.
(4) Obligations resulting from the failure to perform fiduciary obligations shall be transmitted to the successors of the deceased fiduciary.
Article 2140. Effect of death or liquidation
fiduciary assistant
The power of attorney of the trustee terminates when the trustee dies or is liquidated, but the terms of the trust may allow the power of attorney to be exercised by will.
Chapter IX
TERMINATION AND MODIFICATION OF THE TRUST
Section 1
extinction
Article 2141. Grounds for Extinction
(1) The trust shall be terminated with respect to the entire trust property or part thereof:
a) by resolution by the settlor or beneficiaries pursuant to a right provided for by the terms of the trust;
b) by resolution by the founder pursuant to art. 2144;
c) by resolution by the beneficiary pursuant to art. 2145;
d) by resolution by the trustee pursuant to art. 2149;
e) by confusion of rights and obligations under art. 2150.
(2) The trust shall also be extinguished upon the expiration of the term of the trust or upon the fulfillment of the extinction condition.
(3) The trustee must inform the other parties to the trust of the occurrence of the termination of the trust.
Article 2142. Loss or exhaustion of the mass
fiduciary property
(1) The trust is extinguished when the trustee no longer holds any trust rights nor expects to acquire such rights.
(2) However, the trust subsists as long as the trustee is required to restore the trust property as a result of the failure to perform the fiduciary obligations.
Article 2143. Effect of Extinction on Obligations
trustee
(1) To the extent that the trust is extinguished, the obligations of the trustee are also extinguished.
(2) Unless the parties concerned have agreed otherwise, the termination of the trust does not release the trustee from liability:
a) towards the beneficiary arising as a result of the fiduciary’s failure to perform its fiduciary obligations; or
b) towards a creditor of the trust from the account of the trust property.
(3) Upon the termination of the trust due to the expiration of the term or the fulfillment of the extinction condition, the trustee is obliged to transfer the trust rights to the beneficiaries or his successors if the terms of the trust do not prohibit it, to draw up all the documents of delivery-receipt of the title of rights in the form required by law, to hand over possession of the corresponding property and to assist in the completion of the publicity formalities.
(4) In the case provided for in paragraph (3), if there is no beneficiary of the remaining fiduciary patrimonial mass, the beneficiary is the settlor or, as the case may be, his successors.
Article 2144. The founder’s right to resolution
free trust
(1) With the exceptions provided for in paragraphs (2) and (3), unless the terms of the trust provide otherwise, the settlor shall not be entitled to the termination of the trust or of a clause in the terms of the trust solely because the trust was established free of charge, regardless of whether:
a) the trust was established without the title to the rights being transferred by the settlor;
b) the settlor reserved the right to the benefit during his lifetime.
(2) The settlor has the right to terminate the trust free of charge or a clause in the terms of the trust that is established for the benefit of a person who does not yet exist.
(3) The settlor has the right to terminate the trust free of charge for the benefit of another person under the same conditions under which he could have revoked a donation made to that beneficiary if the benefit had been granted by donation.
Article 2145. Beneficiaries’ right to resolution
(1) The beneficiary who has full legal capacity has the right to terminate the trust with respect to the entire trust property or part of it, if he is its exclusive beneficiary.
(2) If each has full capacity to exercise, several beneficiaries have a common right to resolution regarding the entire fiduciary patrimonial mass or a part of it, if they are its exclusive beneficiaries.
(3) The trust may not be subject to resolution with respect to a part of the trust property if this would negatively affect the trust with respect to the rest of the property having other persons as beneficiaries or having as its purpose the promotion of a public utility purpose.
Article 2146. Exclusive benefit
(1) The fiduciary patrimonial mass or part of it is considered to be for the exclusive benefit of a beneficiary if the entire capital and all future income generated by that capital can be disposed of, according to the terms of the trust, only for the benefit of that beneficiary or his patrimony.
(2) For the purposes of paragraph (1), the possibility that the beneficiary might or might not exercise a right that would limit his benefit shall not be taken into account.
Article 2147. Declaration of resolution and its effects
(1) The settlor or beneficiary exercises his right to resolution by written declaration to the trustees.
(2) The trust or part of the trust that is subject to resolution by the settlor, from that moment, produces the effects of a trust for the exclusive benefit of the settlor.
(3) If a beneficiary, exercising the right to resolution, notifies the trustee that he has assigned the right to benefit to a third party, other than the beneficiary, that assignment grants the third party the right to benefit from the patrimonial estate or the part of the patrimonial estate to be transferred.
(4) Unless the transfer is impossible or unlawful, the trustee is obliged to transfer the trust property or part of the trust property without delay in accordance with the declaration of resolution. The obligation to transfer takes precedence over the obligation to administer and dispose of the trust property or part of it in accordance with the terms of the trust.
(5) If a transfer is impossible on the grounds that it would imply the granting of only a share of the trust right, the trustee is obliged:
a) to divide it and transfer the divided part, to the extent that this is possible and reasonable; or
b) if division is not possible, to sell it, if possible, and transfer the appropriate share of the income.
Article 2148. Right of retention of the trustee
(1) The trustee has a right of retention with respect to that part of the patrimonial estate to be transmitted, to the extent necessary to satisfy:
a) the debts of the trust;
b) the trustee’s accumulated claims against the estate; and
c) expenses related to the transfer and division or sale of the right, to the extent that these debts, rights or costs are allocated to the part of the fiduciary patrimonial mass to be transmitted.
(2) The right of retention shall be extinguished if the person exercising the right of termination pays compensation for the debts, rights and costs allocated to the part of the patrimonial estate to be transmitted.
Article 2149. Resolution by the trustee
(1) If the beneficiary has the right to terminate the trust pursuant to art. 2145 para. (1), the trustee may require him, by notice, to exercise that right within a reasonable period set by notice. If the beneficiary fails to comply with the indicated period, the trustee shall have the right to terminate the trust by transmission to the beneficiary. The beneficiary shall be obliged to accept the transmission.
(2) The beneficiary also has the right to terminate the trust by paying the amount of money or by transferring the title to other property that are the subject of rights in the trust property to the court, if expressly provided for by law.
Article 2150. Confusion of rights and obligations
(1) The trust is extinguished if the sole trustee is also the sole beneficiary, and the trust is for the exclusive benefit of that trustee.
(2) In the event that there are several trustees, the provisions of paragraph (1) shall apply accordingly only if they have a common right to benefit.
(3) If the trust remains in force with respect to the beneficiary’s right to the benefit or if the right to the benefit is encumbered by a security interest or other limited right, the trustee remains bound by that trust or encumbrance.
Article 2151. Insolvency of the trustee
The trust and the fiduciary estate are not affected by the insolvency of the trustee with respect to the trustee’s personal estate or with respect to another fiduciary estate.
Section 2
Modification
Article 2152. Amendment by the founder
or beneficiary
(1) The terms of the trust may be modified by the settlor or beneficiary pursuant to:
a) the right granted by the terms of the trust;
b) the right provided for in paragraph (2).
(2) The settlor or beneficiary who has the right to terminate the trust has a corresponding right to modify the terms of the trust to the extent that they relate to the patrimonial estate or the part thereof in respect of which the trust could be terminated.
(3) For the exercise by several beneficiaries of a common right to modify the terms of the trust, their consent to this effect is required.
(4) The amendment that is to take effect upon the death of the person exercising the right to amend shall take effect only if it is made through a testamentary disposition.
(5) The amendment shall take effect only from the moment the written notification is sent to the trustees.
Article 2153. Modification by court decision
of the condition of the trust regarding
upon administration
(1) At the request of any party to the trust or of any person entitled to demand the performance of the fiduciary obligations, the court may modify a condition of the trust regarding the administration of the fiduciary property if the modification is likely to promote a more efficient and prudent administration of the property.
(2) An amendment under subsection (1) of this section may not materially affect the operation of the terms of the trust applicable to the dispositions if the court does not have the power to amend those terms under sections 2154 and 2155.
Article 2154. Modification by court decision
of the trust with beneficiaries
(1) At the request of any party to the trust or of any person who would benefit if the condition whose modification is sought were excluded, the court may modify the condition of the trust that grants a right to benefit or a vocation to benefit to a person who:
a) does not yet exist; or
b) currently does not correspond to the description on which the right depends, such as attribution to a category of persons.
(2) The same rule applies where the condition of the trust confers a right to benefit or a vocation to benefit at a future date or which is conditional on the occurrence of an improbable event.
Article 2155. Modification by court decision
of the trust to promote a purpose
public utility
(1) At the request of any party to the trust or of any person entitled to request the performance of fiduciary obligations, the court may modify the condition of the trust established for the purpose of public utility if, as a result of a change in circumstances, the promotion of the purpose provided for by the condition of the trust cannot be considered to be an appropriate and efficient use of resources.
(2) The modification pursuant to paragraph (1) must be made in favor of the general or particular purposes of public utility that the settlor would likely have chosen if he had established the trust after the change in circumstances.
Article 2156. Assignment of the right to benefit
(1) Subject to the provisions of paragraph (2), the assignment of the right to benefit is governed by the provisions on the assignment of receivables.
(2) The legal provisions regarding donation apply to the gratuitous assignment.
Chapter X
RELATIONSHIPS WITH THIRD PARTIES
Section 1
Trust debtors
Article 2157. Compensation
The trustee’s claim against the debtor of the trust can be extinguished by offsetting only with the reciprocal claim that this debtor has as a creditor of the trust or as a beneficiary.
Article 2158. Remission of trust debt
The debt remission made by the trustee for the benefit of the trust debtor does not release this debtor from the trust debt if:
a) the debt forgiveness is free of charge and does not fall within the trustee’s powers; or
b) the debt remission is for consideration, and the debtor knew or had reason to know that it did not fall within the fiduciary’s powers.
Article 2159. Liability of donees and acquirers
in bad faith
(1) If the trustee alienates a trust right to a third party, and the alienation does not comply with the terms of the trust, the trust is enforceable against the acquirer if:
a) the alienation is free of charge; or
b) the acquirer knows or should reasonably have known that the alienation is being made by a fiduciary and that it does not comply with the terms of the trust.
(2) It is considered that the acquirer should reasonably have known a fact if:
a) the fact would have been obvious upon a reasonably prudent examination; and
b) taking into account the nature and value of the right, the nature and cost of such an examination and custom, it is fair and reasonable to expect the acquirer, in those circumstances, to make that examination.
(3) The acquirer against whom the trust is enforceable pursuant to paragraph (1):
a) bears an obligation to return the fiduciary property to the owner;
b) has a correlative right to have any benefit granted as consideration returned to him.
(4) However, the trust ceases to be enforceable against the acquirer pursuant to paragraph (1) if:
a) the consideration offered by the acquirer is the subject of a disposition within the framework of the performance of a fiduciary obligation; or b) the fiduciary or a third party satisfies the obligation to restore the fiduciary patrimonial mass.
(5) The provisions of this article shall apply accordingly where the trustee creates a security interest or other limited right over the trust right for the benefit of a third party.
Article 2160. Liability for instigation or
complicity in the administration or
incorrect layout of the mass
fiduciary property
(1) Non-contractual liability arising from damage caused to another by instigation of non-performance of obligations shall be incurred with the adaptations provided for in paragraph (2).
(2) The person who intentionally instigates the fiduciary to fail to perform the fiduciary obligation or intentionally assists in that failure to perform shall be jointly and severally liable with the fiduciary if the fiduciary is required to restore the fiduciary property.
Article 2161. Protection of third parties who contract
with the trustees
(1) A contract entered into by a fiduciary in breach of a fiduciary duty with a person who is not a party to the trust is not void or voidable solely for that reason.
(2) A person who is not a party to the trust and does not know all the relevant factual circumstances may rely on the text of a trust document and on the fact that it is truthful.
BOOK FOUR INHERITANCE
Title I
GENERAL PROVISIONS
Article 2162. The concept of inheritance
(1) Inheritance is the transmission of the patrimony (the estate) of a deceased natural person (deceased, the one who left the inheritance) to one or more persons (heirs).
(2) The rules on inheritance shall apply to the share of the estate of a co-heir (share of inheritance).
(3) The heir acquires the patrimonial rights and obligations of the deceased, except for those which, by their nature, are inseparably linked to the person of the deceased or which, according to the law, cannot be transmitted from one person to another.
(4) By way of derogation from paragraph (3), in the cases provided for by law, non-patrimonial rights, as well as patrimonial rights inseparably linked to the person of the deceased, shall pass to the heir.
Article 2163. Characteristics of the devolution of inheritance
The devolution of the inheritance to the heirs of the deceased is a universal, unitary and indivisible transmission upon death.
Article 2164. Basis of inheritance
(1) Inheritance takes place pursuant to the law and/or according to the will.
(2) To the extent that the testator has not otherwise provided by will, the inheritance passes to the legal heirs.
Article 2165. The moment of opening the inheritance
The inheritance opens at the time of the death of the person who left the inheritance, whether it is physically ascertained or declared by final court decision.
Article 2166. Place of opening of inheritance
The place of opening of the inheritance is the place where the person who left the inheritance had his usual residence at the time of death, and if this usual residence is not known, the place where the property or the main part of them in value are located.
Article 2167. Succession capacity
(1) Successional capacity is the ability of a person to inherit.
(2) Any person who has the capacity to use property also has the capacity to inherit.
(3) Unless the law provides otherwise, only natural persons who are alive at the time of opening the inheritance or legal persons who exist at the time of opening the inheritance may be heirs.
(4) A child born alive after the opening of the inheritance is considered to have succession capacity at the time of the opening of the inheritance if it was conceived before the time of the opening of the inheritance.
Article 2168. Comorians and co-cedents
(1) Persons with mutual or unilateral succession vocation who died without being able to establish whether one survived the other are presumed to have died simultaneously (co-deceased and co-deceased).
(2) The inheritance left by each co-deceased or co-deceased is collected by his own heirs and no deceased has the right to the inheritance of the other or other deceased.
Article 2169. Grounds for unworthiness
(1) A person is excluded from inheritance in the following cases:
a) if he killed the testator or attempted to kill him;
b) if he intentionally and illegally prevented the testator from making or revoking a testamentary disposition;
c) if by fraud or violence he caused the testator to draw up or revoke a testamentary disposition;
d) if he intentionally and illegally concealed, altered, destroyed or falsified a testamentary disposition of the testator.
(2) A parent who has been deprived of parental rights with respect to a child cannot be the legal heir of that child.
Article 2170. Cancellation of the acquisition of inheritance by
the unworthy heir
(1) The deprivation of the right to inherit of an unworthy person is done by annulling the acquisition of the inheritance by him.
(2) The cancellation of the acquisition of the inheritance may be requested only after the opening of the inheritance. In the case of a subsequent heir, the cancellation may be made immediately after the devolution of the inheritance to the prior heir.
(3) The time limits provided for in art. 2211 shall apply to the action for annulment.
Article 2171. Persons entitled to introduce
annulment action
Any person who may benefit from the removal of the unworthy heir may file an action for annulment of the acquisition of the inheritance for unworthiness, even if the benefit will only arise after the removal of another person.
Article 2172. Filing the application
(1) The annulment action seeks to declare the heir unworthy.
(2) The consequences of annulment arise from the moment the court decision becomes final.
Article 2173. Removal of indignity
The heir is not unworthy if the person who left the inheritance, knowing the cause of unworthiness, drew up a will or did not amend the will, although he had the opportunity to do so.
Article 2174. Effects of declaring an heir unworthy
(1) In the event of the declaration of an unworthy heir, it shall be deemed that the devolution in his favor has not taken place. The legal provisions regarding the possessor of the estate shall apply to the unworthy heir.
(2) In place of the unworthy heir, those who would have inherited if the unworthy heir had died at the time of opening the inheritance shall inherit. The devolution in favor of those who come in place shall be deemed to have occurred at the time of opening the inheritance.
Article 2175. Unworthiness of the legatee
If the legatee is guilty of an act provided for in art. 2169, the claim based on the legacy may be annulled. The provisions of art. 2171, 2173 and 2210-2214 shall apply accordingly.
Article 2176. Loss of the right to inheritance
(1) For the purposes of this book, a successor loses the right to inheritance if:
a) dies before the date of opening the inheritance;
b) is unworthy to inherit;
c) is disinherited by testamentary disposition;
d) renounces the inheritance.
(2) The provisions of this article shall apply accordingly to the loss of the legatee’s right to the legacy.
Title II
LEGAL INHERITANCE
Article 2177. The case in which legal inheritance operates
(1) The devolution of the inheritance takes place in accordance with the provisions of this book (legal inheritance), to the extent that there is no valid will.
(2) If the will refers only to a part of the estate, the devolution of the other part of the estate takes place according to the legal inheritance.
Article 2178. First class of legal heirs
(1) The descendants of the deceased are part of the first class of legal heirs.
(2) The descendant who is alive at the time of opening the inheritance excludes from the inheritance the other descendants who are related to the deceased through the first.
(3) The place of the deceased descendant at the time of opening the inheritance is occupied by his descendants (successory representation).
(4) The children of the deceased inherit in equal shares.
(5) Children who replace the deceased parent according to the provisions of paragraph (3) inherit in equal shares the share of the inheritance to which the deceased parent would have been entitled.
Article 2179. Second class of legal heirs
(1) The second class of legal heirs includes the parents of the deceased and their descendants.
(2) If at the time of opening the inheritance the parents of the deceased are alive, only they inherit, in equal inheritance shares.
(3) If at the time of opening the inheritance one of the parents of the deceased is not alive, instead of the deceased parent his descendants shall be called to the inheritance in accordance with the rules applicable to first-class heirs. If the deceased parent has no descendants, the sole heir shall be the surviving parent.
Article 2180. Third class of legal heirs
(1) The third class of legal heirs includes the grandparents of the deceased and their descendants.
(2) If at the time of opening the inheritance the grandfather and grandmother are alive, only they inherit, in equal inheritance shares.
(3) If at the time of opening the inheritance one of the grandparents in a pair is not alive, the place of the deceased grandfather (grandmother) is occupied by his/her descendants. If the deceased grandfather (grandmother) has no descendants, his/her share of the inheritance passes to the other grandparent in the respective pair, and if he/she is not alive, to the descendants of the latter.
(4) If at the time of opening the inheritance a pair of grandparents is not alive and if they have no descendants, then the other grandparents who are alive inherit, and if they are not alive, their descendants.
(5) To the extent that descendants take the place of their parents or more distant ascendants, the legal provisions regarding first-class heirs shall apply accordingly.
Article 2181. Fourth class of legal heirs
(1) The deceased’s great-grandparents and their descendants are part of the fourth class of legal heirs.
(2) If at the time of opening the inheritance the great-grandfather and/or great-grandmother are alive, only they shall inherit. If there are more than one, they shall inherit in equal shares of the inheritance, regardless of whether they belong to the same line or to different lines.
(3) If at the time of opening the inheritance the great-grandmother and great-grandfather are not alive, the descendant who is in a closer degree of kinship with the deceased shall inherit. If several persons are in the same degree of kinship, they shall inherit in equal shares of the inheritance.
Article 2182. Fifth class of legal heirs
(1) The more distant ancestors of the deceased and their descendants belong to the fifth class of legal heirs.
(2) The provisions of art. 2181 paragraphs (2) and (3) shall apply accordingly.
Article 2183. Concurrent kinship in different lines
of kinship
A person who is a first, second or third class heir simultaneously on different lines of kinship receives the inheritance share that is due to him based on each kinship. Each share is considered a distinct inheritance share.
Article 2184. Order of classes
The classes of heirs are called to collect the inheritance only one at a time, in the order established by this code, starting with the first class.
Article 2185. Succession rights of the spouse
survivor
(1) The surviving spouse is the legal heir and, in competition with the first class of heirs, is entitled to 1/4 of the estate, regardless of the number of descendants.
(2) In competition with the second class of heirs or with the grandparents, the surviving spouse is entitled to 1/2 of the inheritance, regardless of the number of heirs. If both the grandparents and the descendants of the grandparents are alive, the surviving spouse also receives the share of the other 1/2 inheritance share which, according to art. 2180, should have gone to the descendants.
(3) The determination of the surviving spouse’s inheritance share shall be made in preference to the determination of the inheritance shares of the heirs with whom he/she competes.
(4) In the absence of first and second class heirs and if the grandparents are not alive or if they have forfeited the right to inheritance, the surviving spouse collects the entire inheritance.
Article 2186. Precipitate of the surviving spouse
(1) If the surviving spouse inherits the estate together with the second-class heirs or grandparents, he shall receive, by way of priority, in addition to his share of the estate, the furniture and household items that have been assigned to the common use of the spouses, unless they are accessories to a property and cannot be separated without damaging the property. The surviving spouse may also receive the indicated items if he inherits the estate together with the first-class heirs to the extent that they are necessary for the maintenance of the household.
(2) In the case of a precipitous loss, the rules regarding legacies apply.
Article 2187. Dissolution of the surviving spouse
from the right to inherit
(1) The surviving spouse is excluded from the inheritance if, at the date of opening the inheritance:
a) the decedent filed a divorce action, recognized the divorce action filed by the other spouse or filed a divorce application according to the law;
b) the marriage is declared null and void by court decision or there are grounds for the nullity of the marriage and an action for nullity has been filed.
(2) The right to maintenance of the surviving spouse remains unaffected.
Article 2188. The right of inheritance of the spouse
on the basis of kinship
If the spouse is part of the circle of relatives called to the succession, he also inherits under this title. The inheritance share acquired on the basis of kinship is considered a distinct inheritance share.
Article 2189. Consequences of increasing the inheritance share
If one of the legal heirs loses the right to inheritance before or after the opening of the inheritance and, as a result, the inheritance share of another legal heir increases, the share by which the inheritance share of the latter has increased is considered a distinct inheritance share with regard to legacies or testamentary charges with which this heir or the heir who has lost the right to inheritance is encumbered, as well as with regard to the obligation of reporting.
Article 2190. The right of the state to inheritance
If the deceased has no relatives or a surviving spouse, or they cannot inherit for some reason, the legal heir is the state.
Title III
TESTAMENTAL INHERITANCE
Chapter I
GENERAL PROVISIONS
Article 2191. The concept of a will
A will is a unilateral, personal and revocable act by which a person, called the testator, disposes, in one of the forms required by law, for the time when he or she will no longer be alive.
Article 2192. Drawing up a personal will
by the testator
(1) The drawing up of a will by a representative is not permitted.
(2) Two or more persons may not bequeath by the same will in favor of one another or in favor of a third party.
(3) The testator may not dispose of the cause of death in such a way that the validity or invalidity of his dispositions depends on the will of a third party.
(4) The testator may not authorize a third party to determine the person in whose favor the legacy shall be executed and to determine the property to be transferred in performance of the legacy.
Article 2193. Secrecy of the will
(1) The person authorized to authenticate the will, the witnesses and the persons who sign the will do not have the right to disclose information regarding the content of the will until the date of opening the inheritance.
(2) The notary or the person authorized to authenticate the will is obliged to warn the witness and the person signing the will about the need to respect the secrecy of the will.
Article 2194. Minor’s capacity to dispose
by will
A minor can make a will upon reaching the age of 16. In this case, the minor does not need the consent of his parents or guardian to draw up a will.
Article 2195. Inability to receive benefits by will
(1) Testamentary dispositions in favor of:
a) the notary or other person who, according to the law, authenticated the will;
b) the interpreter who participated in the will authentication procedure;
c) the witnesses mentioned in the provisions of art. 2218, 2220, 2228 or art. 2229;
d) to persons who legally provided legal assistance in drafting the will;
e) priests who assisted the testator from a religious point of view during the illness that caused the death;
f) doctors, pharmacists and other medical personnel who cared for the testator during the illness that caused the death, as well as the medical institution for which they work.
(2) The following are exempt from the prohibitions provided for in paragraph (1):
a) the provisions regarding remuneration, if they are appropriate to the material condition of the testator and the services provided by the heir;
b) provisions made in favor of the person who has a succession vocation as a legal heir.
Article 2196. Disinheritance
The testator may disinherit relatives and/or spouse by will without designating an heir. The right to inheritance reservation remains unaffected.
Article 2197. Will in favor of legal heirs
(1) If the testator has designated the legal heirs by will without indicating their names, the persons who, upon the opening of the inheritance, would have been called to the legal inheritance shall be considered called to the inheritance in the inheritance shares to which they are entitled in accordance with the law.
(2) If the designation by will as heir is established according to a suspensive condition or with an indication of the term on which the quality of heir begins, and the condition is fulfilled or the term begins to run only after the opening of the inheritance, if there are doubts, the person who would have become heir if the person who left the inheritance had died on the date of fulfillment of the condition or the start of the term is considered designated.
Article 2198. Relatives of the testator
If the testator has designated his relatives as heirs without indicating their names, if there are doubts, the relatives who at the time of opening the inheritance would have been called to the legal inheritance are considered called to the inheritance in the inheritance shares to which they are entitled in accordance with the law. The provisions of art. 2197 paragraph. (2) shall apply accordingly.
Article 2199. Children of the testator
If the testator has designated his children as heirs without indicating their names, and one of the children is deceased at the date of the will and has left behind descendants, then, in case of doubt, the descendants are considered to be designated heirs to the extent that they would have inherited based on the right of representation in the case of legal inheritance according to art. 2178.
Article 2200. Descendants of the testator
If the testator has designated a descendant as heir and the latter has forfeited the right to inheritance, if there are doubts, it is considered that the descendants of the latter are designated heirs to the extent that they would have inherited based on the right of representation in the case of legal inheritance according to art. 2178.
Article 2201. Third party descendants
If the testator has designated as heirs the descendants of a third party without indicating their names, if there are doubts, it is considered that descendants who are not conceived at the time of opening the inheritance or at the time of fulfilling the suspensive condition or of the beginning of the term, if the condition is fulfilled or the term begins to run only after the opening of the inheritance, are not designated as heirs.
Article 2202. Group of persons
If the testator has designated as heirs persons of a certain category or persons who are in service or business relations with him without indicating their names, if there are doubts, it is considered that the persons who belong to the indicated category or are in the relations indicated with the testator upon opening the inheritance are designated heirs.
Article 2203. The equivocal nature of the designation of heirs
If the testator has designated a person as heir through particularities that can be attributed to several people and it is impossible to determine who exactly the testator designated, then all these people are considered heirs with the right to equal inheritance shares.
Article 2204. Will for the benefit of persons
socially vulnerable
If the testator has made a will for the benefit of socially vulnerable persons without indicating their names, if there are doubts, the first-level administrative-territorial unit at the place of opening the inheritance is considered the heir, which is obliged to divide the property tested to the socially vulnerable persons.
Article 2205. Provision under suspensive condition
If the testator has made a disposition subject to a suspensive condition, if there are doubts, the testamentary disposition is considered to be effective only if the condition is fulfilled during the lifetime of the beneficiary of the testamentary disposition.
Article 2206. Provision under resolutory condition
If there are doubts, the disposition by which the testator conditioned the devolution of the inheritance by the beneficiary performing certain actions or refraining from performing certain actions for an indefinite period is considered to have been made under a resolutory condition, provided that the performance of the actions or the refraining from performing the actions depends on the will of the beneficiary.
Article 2207. Condition in favor of a third party
If the condition on the basis of which the provision was made favors a third party, if there are doubts, the condition is considered fulfilled even if the third party refuses the cooperation necessary for the fulfillment of the condition.
Article 2208. Invalidity of testamentary disposition
for the benefit of the husband
(1) The testamentary disposition by which the testator designated his spouse as heir shall be void if the marriage is null and void or was dissolved before the testator’s death. The case is assimilated to the dissolution of the marriage if, at the time of death, the testator had filed a divorce action, acknowledged the divorce action filed by the other spouse or filed a divorce application in accordance with the law. The same rule shall apply if the testator could have requested the nullity of the marriage and filed an action in this regard.
(2) The testamentary disposition is not void if it is presumed that the testator would have made it under the conditions indicated in paragraph (1).
Article 2209. Voidability due to error or
of violence
(1) The testamentary disposition is voidable to the extent that the testator was in error regarding the content of his will or did not, in general, intend to make a will with such content and it is presumed that, had he known the state of affairs, he would not have made such a will.
(2) This rule also applies when the manifestation of will was made under the influence of the assumption or mistaken expectation that certain circumstances will or will not occur or the testator was unlawfully induced to do so by violence.
Article 2210. Person entitled to request annulment
testamentary disposition
(1) The testamentary disposition may be annulled only by the person who will directly benefit from the annulment of the testamentary disposition.
(2) If, in the cases provided for in art. 2209, the error refers only to a specific person and this person has the right to request the annulment of the will or would have had this right if he had been alive at the time of opening the inheritance, no one other than this person has the right to request the annulment of the disposition.
Article 2211. The limitation period for an action for annulment
(1) The limitation period for an action for annulment is 1 year.
(2) The limitation period shall be calculated from the moment when the entitled person learned of the existence of the grounds for annulment. The legal provisions regarding the suspension of the limitation period shall apply accordingly.
(3) The action for annulment may not be filed after the expiry of the 3-year period from the date of opening of the inheritance.
Article 2212. Exception of nullity
In the event that a testamentary disposition by which an obligation to perform has been established is voidable, the person encumbered may refuse to perform the performance even if the voidability, according to the provisions of art. 2211, is excluded.
Article 2213. Interpretation of the testamentary disposition
(1) The testamentary disposition shall be interpreted according to the actual will of the testator.
(2) If the content of a testamentary disposition allows for multiple interpretations, in case of doubt, the interpretation that allows the disposition to take effect shall take precedence.
(3) If necessary, the notary conducting the succession procedure may request the court to issue a court decision interpreting the testamentary disposition.
Article 2214. Nullity of a provision
The nullity of a provision included in the will entails the nullity of the other provisions only if it is assumed that without the null provision the testator would not have made the other provisions.
Article 2215. Reservation regarding the completion of the provision
NT
The testamentary disposition made subject to completion will be valid even if the completion has not taken place, unless the testator has conditioned its validity on a possible completion.
Chapter II
MAKING A WILL
Article 2216. Form of the will
(1) Under penalty of nullity, the will may be drawn up only in one of the forms provided for in this chapter.
(2) A will void due to a defect in form shall be effective if it meets the conditions provided by law for another testamentary form.
Article 2217. Drafting a will
(1) The will may be drawn up by the testator personally or, at his request, by a notary or by persons authorized to authenticate the will.
(2) The will drawn up by the notary or persons authorized with such functions must express the manifestation of the testator’s will and be signed by the testator only after he has become aware of the contents of the will.
Article 2218. Signing of the will by the testator
other people
(1) If the testator is unable to sign the will, then, at his request, the will shall be signed, in the presence of two witnesses, by another person whose identity is established by the notary. The will shall indicate the reason for the testator’s failure to sign the will, the name, surname, domicile of the person who signed the will, as well as his identity document.
(2) The person who assists as a witness and the person who is benefited by the will may not sign the will on behalf of the testator.
Article 2219. Use of technical means in drafting
testament
Any technical means may be used when drafting an authentic will, but the signature in the will must be executed by the testator personally, with the exceptions provided by law.
Article 2220. Will of a person with disabilities
physically or illiterate
(1) If the person is deaf, mute, deaf-mute, blind or illiterate, the will must be drawn up in the presence of two witnesses and a person who can communicate with the testator and who, by signature, confirms the testator’s manifestation of will.
(2) If the testator is illiterate or due to illness or physical impairment, or for other reasons cannot read the will in person, then the text shall be read by a witness in the presence of the testator and the other witness, a fact which shall be mentioned in the will, indicating the reasons for the impossibility of reading the will by the testator.
Article 2221. Witnesses to the will
Any person who has the capacity to independently draw up their own will may be a witness to the drafting and authentication of the will, with the following exceptions:
a) the person who signs the will on behalf of the testator;
b) the notary or other person who, under the law, authenticates the will;
c) the person in whose favor the will is drawn up, his/her relatives up to the third degree inclusive and his/her spouse;
d) illiterate people and other people unable to read the will;
e) persons with a criminal record for the acts provided for in Articles 312, 314 or 352 1 of the Criminal Code;
f) persons who do not speak the language in which the will is drawn up;
g) the person designated as executor in the will.
Article 2222. Ordinary and privileged wills
(1) The ordinary will may be handwritten or authentic.
(2) The privileged will may be drawn up in special or emergency situations provided for in this chapter.
Article 2223. Holographic will
(1) The testator may personally draw up the will by means of a written declaration signed by him (holographic will).
(2) The testator must mention in the will the date (day, month and year) on which he wrote the will.
(3) The signature shall contain the testator’s first and last name. If the testator signs in another manner and this signature is sufficient to establish his identity and the seriousness of the testator’s statement, then such signature shall not affect the validity of the will.
(4) A person who cannot read may not draw up a will in accordance with the provisions of paragraphs (1)-(3).
(5) A will drawn up in accordance with paragraph (1) which does not contain the date of drawing up, thus raising doubts as to its validity, shall be considered valid only if the date of drawing up can be established in another way.
(6) Deletions, amendments or additions belonging to the testator must be dated and signed by the testator if they contain new testamentary provisions compared to the initial drafting.
Article 2224. Preservation of the handwritten will
The will drawn up in accordance with art. 2223 must be taken into custody, at the testator’s request, by the competent notary, in accordance with the provisions of art. 2231 and 2232, with a proof of deposit being issued to the testator.
Article 2225. Opening of the holographic will
(1) Before being executed, the handwritten will shall be presented to a notary to be endorsed for irrevocability.
(2) In the context of the succession procedure, the notary shall proceed, under the conditions of the special law, to the opening and validation of the handwritten will and shall file it in the succession file. The opening of the will and its condition shall be recorded in a report.
(3) Those interested may receive, after endorsement for irrevocability, at their own expense, legalized copies of the handwritten will.
(4) After the completion of the succession procedure, the original of the will is handed over to the heirs, according to the agreement between them, and in the absence thereof, to the person designated by court decision.
Article 2226. Authentic will
(1) An authentic will is a will authenticated by a notary, according to legal provisions.
(2) The will is drawn up by a notary on the basis of the testator’s verbal declaration before the notary or on the basis of a text handed over to the notary by the testator, with the declaration that this is his will.
(3) The wills of citizens of the Republic of Moldova who are abroad may also be authenticated by the representative of the diplomatic mission or consular office in the order established by the legislation.
Article 2227. Privileged wills drawn up
in special situations
The following wills drawn up in compliance with the condition provided for in art. 2228 paragraph (1) are considered privileged wills drawn up in special situations:
a) the wills of persons undergoing treatment in hospitals, other curative-prophylactic institutions, in sanatoriums or residing in social protection institutions, authenticated by the chief physicians, their deputies for medical issues or doctors on duty of these hospitals, curative-prophylactic institutions, sanatoriums, as well as by the directors, chief physicians or their deputies of social protection institutions;
b) the wills of persons on research expeditions, authenticated by the heads of the expeditions;
c) the wills of servicemen and members of their families, in the deployment points of military units, formations and military educational institutions, where there is no notary or other bodies that perform notarial acts, as well as the wills of civilians working in these units/formations/institutions, of their family members, authenticated by the commanders of these units, formations or heads of educational institutions;
d) wills of persons in places of detention, authenticated by the heads of prisons or their deputies;
e) wills of persons on board seagoing vessels and inland navigation vessels, sailing under the flag of the Republic of Moldova, authenticated by the captains of these vessels. If the vessel is stationed in a port of the Republic of Moldova or in a foreign port where there is a diplomatic or consular agent of the Republic of Moldova, this form of probate cannot be applied;
f) wills authenticated by the secretaries of local councils under the law.
Article 2228. Conditions for drawing up wills
privileged in special situations
(1) The testator may draw up a privileged will according to art. 2227 only if there are fears that the testator will die before being able to draw up the will before a notary.
(2) The authentication of the will shall be done in the presence of two witnesses. When drawing up the will, the provisions of art. 2226 shall apply, as well as the legal provisions regulating the drawing up of notarial acts. The person provided for in art. 2227 shall assume the functions of the notary. The written text must also be signed by the witnesses.
(3) The authentication of a will is void if it brings a legal advantage:
a) the person who authenticates the will;
b) the spouse or ex-spouse of the person authenticating the will;
c) the cohabitant or former cohabitant of the person authenticating the will;
d) a person who is or was a direct or consanguineous relative or a collateral relative up to the third degree of kinship inclusive or a consanguineous relative up to the second degree inclusive of the person authenticating the will.
(4) The fear that the drawing up of the will before a notary will no longer be possible must be mentioned in the will. The will shall not be annulled merely because the fear was unjustified.
(5) The persons indicated in art. 2227 must warn the testator that the will will lose its validity if the testator survives after the expiry of the term provided for in art. 2230 para. (1) and (2). The said persons shall mention in the appropriate register and in the will that they have made this warning.
(6) If formal defects appear in the wording of the text relating to the drawing up of the will referred to in this article, but it is considered that the will accurately reflects what was declared by the testator, then the formal defect does not prevent the effect of the authentication.
Article 2229. Privileged will drawn up
in emergency situations
(1) A person who, for exceptional reasons, is isolated (confined) in such a way that drawing up a will before a notary is not possible or difficult may draw up the will under the conditions provided for in Articles 2227 and 2228 or by verbal declaration in the presence of three witnesses.
(2) A person who is in imminent danger, where it is evident that it is not possible to draw up a will under the conditions provided for in articles 2227 and 2228, may make a will by oral declaration in the presence of three witnesses.
(3) If the will is drawn up by verbal declaration in the presence of three witnesses, this fact must be mentioned in a document. The legal provisions regarding notarial authentication shall apply accordingly. The document may also be drawn up in a language other than Romanian.
The testator and the witnesses must understand sufficiently well the language in which the respective document is drawn up, which fact will be mentioned in the document, if it is drawn up in a language other than Romanian.
Article 2230. Validity period of wills
insider
(1) The privileged will, whether drawn up in accordance with the provisions of art. 2227 and 2228, or in accordance with the provisions of art. 2229, shall be deemed not to have been drawn up if 3 months have passed since its drawing up and the testator is still alive.
(2) The running of the term is suspended until the testator has the opportunity to draw up a will before a notary.
(3) If, after the expiration of the term, the testator is declared deceased or the time of his death is established in accordance with the provisions of the Code of Civil Procedure and if the term had not yet expired at the time when the testator, according to the information held, was still alive, then the will retains its validity.
Article 2231. Competent authority for the preservation
testament
(1) The notary is competent to keep wills authenticated by other persons authorized by law.
(2) Territorial jurisdiction lies with:
a) to the notary in whose territory of activity the headquarters of the persons referred to in art. 2227 are located, if the will was drawn up before them;
b) to any notary – in the case of handwritten wills.
(3) The privileged will drawn up in accordance with art. 2227 letter e) shall be handed over to the diplomatic or consular agent of the first port where the vessel will anchor in order to be sent to the Republic of Moldova to the notary at the habitual residence of the testator. If the vessel has anchored in a port of the Republic of Moldova, both copies of the will shall be sent through the port authorities to the notary at the habitual residence of the testator.
(4) The testator may at any time request that the will be kept with another notary.
Article 2232. Acceptance for safekeeping
(1) The acceptance for safekeeping, as well as the return of the will, shall be ordered and carried out by the notary.
(2) The testator shall be issued with a proof of deposit. The notary shall sign and stamp the proof of deposit.
Article 2233. Transmission of the will
(1) The person who is in possession of a will that has not been deposited for safekeeping with a competent authority is obliged, without delay, after learning of the death of the testator, to hand over the will to the notary conducting the succession procedure.
(2) If a will is kept by an authority other than the notary, then this authority shall deliver the will to the notary after the death of the testator. If the notary learns of the will, he shall take the necessary steps to obtain it.
Article 2234. Opening of the will by the notary
(1) If the notary has sufficient evidence of the testator’s death, he shall set a deadline for the opening of the will he has in his custody. The legal heirs of the testator, as well as other persons with a legitimate interest, shall be summoned to the set deadline.
(2) Upon expiry of the established term, the will shall be opened, read to the interested parties and, at their request, presented to them. The reading stage may be omitted if it is presented to the interested parties. The will shall not be read if no person with a legitimate interest presents himself at the time of the term.
(3) The opening of the will shall be recorded in a report. If the will was sealed, the report shall state whether the seal is intact.
Article 2235. Opening by another notary
If the will is kept by a person other than the notary conducting the succession procedure, that person shall be obliged to open the will. In this case, the will, as well as a certified copy of the minutes of opening the will, shall be submitted to the notary conducting the succession procedure. The notary shall keep a certified copy of the will.
Article 2236. Notification of interested persons
legitimate
The notary conducting the succession procedure must notify persons who have a legitimate interest but were not present at the opening of the will about the testamentary provisions that refer to them.
Article 2237. Nullity of the prohibition to open
The testator’s provision prohibiting the will from being opened immediately after his death is void.
Article 2238. Opening period
If a will has been kept by a competent authority for more than 20 years, it shall ex officio order investigations to determine whether the testator is alive. If the investigations do not show that the testator is alive, the will shall be opened. The provisions of art. 2234-2236 shall apply accordingly.
Article 2239. Familiarization with the contents of the will
After the will is opened, the person who can prove that he has a legitimate interest is entitled to read the contents of a will and request a copy of the will. Upon request, the copy will be legalized by a notary.
Chapter III
DESIGNATION OF THE HEIR
Article 2240. General rules for interpreting designation
(1) If the testator has bequeathed the entire estate or part of the estate to a person, such disposition shall be deemed to be a designation of the heir, even if this person has not been named as an heir.
(2) If a person has been left a certain property, if there are doubts, he/she is not designated as an heir, even if he/she has been named as an heir.
Article 2241. Granting of inheritance share
(1) If the testator has designated only one heir and granted him only one share of the inheritance, the legal heirs shall be called upon to inherit the other share of the inheritance.
(2) The same rule applies if the testator has designated several heirs, but has granted each one a share of the inheritance and in sum these shares do not exhaust the estate.
Article 2242. Increase in inheritance shares
If, according to the testator’s intentions, the designated heirs are to be the sole heirs, their inheritance shares are increased proportionally if each of them has been assigned an inheritance share and in sum these inheritance shares do not exhaust the estate.
Article 2243. Reduction of inheritance shares
If each heir has been assigned a determined inheritance share and the sum of the inheritance shares exceeds the value of the inheritance mass, the inheritance shares of the heirs are reduced proportionally.
Article 2244. Failure to determine inheritance shares
If several heirs have been designated without indicating the inheritance shares, they are considered designated in equal inheritance shares, unless Articles 2197-2200 provide otherwise.
Article 2245. Testing a share of an inheritance in shares
successor
(1) If, out of several heirs, certain inheritance shares are determined for some, and the inheritance shares of the other heirs are not determined, the latter receive the remaining part of the inheritance mass in equal inheritance shares.
(2) If the entire estate has been tested in inheritance shares, these shares shall be reduced proportionally so that each of the heirs designated without the assignment of inheritance shares receives as much as the heir to whom the lowest inheritance share was assigned received.
Article 2246. Joint inheritance share
If several heirs have been assigned the same inheritance share (joint inheritance share), the provisions of Articles 2242-2245 shall apply accordingly to the joint inheritance share.
Article 2247. Increase
(1) If the estate has been bequeathed to several heirs in such a way that they completely exclude the legal heirs and one of them loses the right to inherit before or after the opening of the inheritance, his share of the estate shall be distributed proportionally among the other testamentary heirs. If some of the heirs have been assigned a common share of the estate, they shall have the right to increase it first.
(2) If the inheritance shares of the testamentary heirs include only a part of the inheritance mass and the legal heirs are called to the inheritance of the other part, the testamentary heirs have the right to an increase when a common inheritance share has been assigned to them.
(3) The testator may exclude the increase.
Article 2248. Inheritance share by accretion
The inheritance share acquired by the heirs based on the accretion is considered a distinct inheritance share from the inheritance mass with regard to the legacies and burdens with which this heir or the heir deprived of the right to inheritance was burdened, as well as in the process of reporting donations.
Article 2249. Substitution
(1) In the event that the heir loses the right to inheritance before or after the opening of the inheritance, the testator is entitled to designate another heir (substitute) in his place.
(2) If there are doubts, the designation of the substitute is valid both in the case where the first designated heir cannot be an heir, and in the case where he renounces the inheritance.
Article 2250. Mutual designation as a
by substitute
(1) If the heirs substitute each other or if for one of the heirs the remaining heirs have the quality of substitutes, if there are doubts, they are considered to be designated substitutes in accordance with the inheritance shares.
(2) If all heirs are in a reciprocal relationship of substitutes, those heirs to whom a common inheritance share has been tested, if there are doubts, are called to inherit this inheritance share as substitutes in the first place.
Article 2251. Substitution and augmentation
The right of substitution takes priority over the right to increase.
Chapter IV
DESIGNATION OF THE SUBSEQUENT HEIR
Article 2252. The subsequent heir
(1) The testator may designate an heir so that the person becomes an heir (the subsequent heir) only after another person has previously been an heir (the prior heir).
(2) For a subsequent heir, another subsequent heir cannot be designated.
(3) The provisions of this chapter are duly supplemented by the legal provisions regarding trusts, so that the testator is considered a settlor, the prior heir is considered a fiduciary, and the subsequent heir is considered a beneficiary of the trust.
Article 2253. Unconceived subsequent heir
(1) If a person who is not yet conceived at the time of opening the inheritance is designated as an heir, then, in case of doubt, the person is deemed to be designated as a subsequent heir. If the testator did not intend to designate the person as a subsequent heir, the designation is invalid.
(2) The provisions of paragraph (1) shall apply accordingly also in the case of the designation of a legal person that will be established only after the moment of opening the inheritance.
Article 2254. The subsequent heir and the substitute
(1) If there is doubt, the designation of a subsequent heir also includes his designation as a substitute.
(2) When there is doubt as to whether a person is designated as a subsequent heir or as a substitute, he shall be considered a subsequent heir.
Article 2255. Order for the transmission of the estate
If the testator has ordered the heir to, on a certain date or upon the occurrence of a certain event, transmit the estate to another person, then it is presumed that the other person is designated as the subsequent heir.
Article 2256. Legal heirs as heirs
of subsequent
If the testator has designated a person as an heir only until a certain date or until the occurrence of a certain event, without specifying who shall receive the estate thereafter, and if he dies on that date or at the time of the occurrence of that event, then it is presumed that the persons designated as subsequent heirs are the legal heirs of the testator. For the purposes of this article, the State which collects the vacant inheritance does not constitute a legal heir.
Article 2257. Legal heirs as prior heirs
(1) If the testator has ordered that the designated heir receive the estate only on a certain date or upon the occurrence of a certain event, without indicating who will be the heir until that date or the time of the occurrence of that event, then the legal heirs of the testator are prior heirs.
(2) The provisions of paragraph (1) shall also apply if the identity of the heir is to be determined by an event occurring after the opening of the inheritance or if, according to art. 2253, the designation of a person who has not yet been conceived at the date of the opening of the inheritance or of a legal person that has not yet been constituted at that time as heir is considered a designation as a subsequent heir.
Article 2258. Occurrence of subsequent inheritance
(1) If the testator has designated a subsequent heir without determining the date or event on which or based on which the subsequent inheritance will occur, the subsequent heir has the right to the inheritance from the date of the death of the prior heir.
(2) If, according to art. 2253 par. (1), the designation as heir of a person who has not yet been conceived is considered the designation of the subsequent heir, the subsequent heir has the right to the inheritance from the date of his birth. In the case provided for in art. 2253 par. (2), the subsequent heir has the right to the inheritance from the date of the establishment of the legal person.
Article 2259. Prior heir without children
If the testator designated a subsequent heir for a moment after the death of a descendant who, at the date of the testamentary disposition, did not have descendants or the testator did not know that he had descendants, then it is considered that the subsequent heir is designated only in the event that the descendant dies without leaving descendants.
Article 2260. Succession capacity.
Inheritance of the subsequent heir
(1) The provisions of art. 2167 shall apply to subsequent inheritance accordingly.
(2) If the designated subsequent heir dies before the occurrence of the event leading to the occurrence of the subsequent inheritance, but after the date of opening the inheritance, then his right passes to his heirs, unless it can be assumed that the testator had another intention. If the subsequent heir is designated under a suspensive condition, the provisions of art. 2205 shall apply.
Article 2261. Termination of subsequent inheritance
(1) The designation of the subsequent heir ceases to produce legal effects upon the expiry of the 30-year period from the date of opening the inheritance if the event leading to the occurrence of the subsequent inheritance has not occurred before the expiry of that period. The designation continues to produce legal effects even after the expiry of the said period in the following situations:
a) if the subsequent inheritance is provided for in the event of a specific event occurring with respect to the prior heir or the subsequent heir, and the person with respect to whom it is to occur was alive on the date of opening the inheritance;
b) if instead of the prior heir or the subsequent heir, in the case when a brother or sister is born to him, his brother or sister is designated as subsequent heir.
(2) If the prior heir or subsequent heir with reference to whom the event must occur is a legal person, the 30-year term shall apply.
Article 2262. Limits of the right to inheritance
UP
(1) The right of the subsequent heir extends, if there are doubts, to the share of inheritance acquired by the prior heir as a result of the forfeiture of a co-heir’s right to his share of inheritance.
(2) The right of the subsequent heir does not extend, if there are doubts, to the priority legacy granted to the prior heir.
Article 2263. Direct subrogation
(1) The estate includes everything acquired by the prior heir on the basis of a right that is part of the estate or as compensation for the destruction, damage or expropriation of an property from the estate, or by virtue of a juridical act using money from the estate, except in the case where the acquired property is due to him as fruit. The fact that a claim acquired by juridical act is part of the estate is opposable against the debtor only from the moment the debtor is notified of it. In this case, the provisions of art. 829-832 shall apply accordingly.
(2) The estate also includes everything that the prior heir introduces into the inventory of an immovable property that is part of the estate.
(3) The provisions of paragraph (1) shall apply to the extent that they do not violate the succession reservation of the prior heir who is also a reserved heir.
Article 2264. The right of disposal of the heir
PRE
The prior heir may dispose of the property that are part of the estate, with the exceptions provided for in art. 2265-2267.
Article 2265. Disposition of real estate. Donations
(1) The disposition by the prior heir of an immovable property or a right over an immovable property forming part of the estate does not produce legal effects in the event of subsequent inheritance to the extent that it violates or diminishes the right of the subsequent heir.
(2) The same rule applies to the disposal of an property from the estate free of charge or for the purpose of fulfilling a donation to which the prior heir has committed himself, with the exception of donations made for the fulfillment of a moral obligation or in accordance with good morals.
(3) The legal provisions regarding the acquisition of a right from the wrongful person shall apply accordingly.
Article 2266. Disposition of secured claims
If the inheritance includes a claim secured by a pledge, mortgage or other guarantee, the prior heir has the right to exercise, including by force, the claim and the guarantee. The prior heir may request payment of the capital in his favor only with the consent of the subsequent heir or may request the amount to be recorded in his favor and that of the subsequent heir. Other dispositions regarding the secured claim and the guarantee are governed by the provisions of art. 2265.
Article 2267. Provisions in the framework of forced prosecution
against the prior heir
The disposal of an property forming part of the estate carried out by way of compulsory succession or in the context of insolvency proceedings does not produce legal effects if subsequent succession occurs, to the extent that it infringes or diminishes the right of the subsequent heir. The disposal produces legal effects without restrictions if the claim of the creditor of the estate or a right over the property forming part of the estate is exercised and, if subsequent succession begins, this right is opposable against the subsequent heir.
Article 2268. Registration of securities
(1) At the request of the subsequent heir, the prior heir must register the bearer securities that are part of the estate with a financial institution, provided that the release can only be requested with the consent of the subsequent heir. The registration of bearer instruments that, according to art. 470, are consumable, as well as interest coupons, annuities or dividends cannot be requested. Securities issued to order and endorsed in blank are assimilated to bearer securities.
(2) The prior heir may dispose of the recorded securities only with the consent of the subsequent heir.
Article 2269. Publicity of prior inheritance
If a right that is part of the estate is subject to registration in a constitutive publicity register, the prior heir is obliged to ensure the recording in the respective register of the possession of the right as a prior or fiduciary heir and, if applicable, to record the prohibition of alienation without the consent of the subsequent heir.
Article 2270. Investing money
Money to be placed in long-term investments according to the rules of good administration may be invested by the prior heir only according to the provisions that apply to the investment of money held in administration for a minor under guardianship.
Article 2271. Obligation of the subsequent heir
to give consent
If, for the purposes of good administration, in particular for the purpose of discharging an obligation of the estate, it is necessary to dispose of an property for which the prior heir requires the consent of the subsequent heir, then the subsequent heir is obliged to the prior heir to consent to the act of disposition. Upon request, the consent must be given in authentic form. The costs of authentication are borne by the prior heir.
Article 2272. Inventory of goods included in
composition of the estate
(1) Upon request, the prior heir is obliged to provide the subsequent heir with an inventory of the property forming part of the estate. The inventory shall include the date of preparation and shall be signed by the prior heir. Upon request, the signature of the prior heir shall be notarized.
(2) The subsequent heir may request to participate in the drawing up of the inventory.
(3) The prior heir has the right, and at the request of the subsequent heir is obliged, to ensure that the inventory is drawn up by the competent authority or by a competent official, or by a notary.
(4) The expenses related to the preparation of the inventory and the legalization of the signature are borne from the estate.
Article 2273. Determination of the status of the inheritance
The prior heir may request, at his own expense, that the condition of the property forming part of the estate be determined by experts. The subsequent heir also has the same right.
Article 2274. Maintenance expenses
(1) The prior heir is obliged to bear the ordinary maintenance expenses of the subsequent heir.
(2) The prior heir may pay from the estate other expenses which, depending on the circumstances, are necessary for the preservation of the property forming part of the estate. If he pays them from his personal property, then the subsequent heir is obliged to reimburse them when the subsequent inheritance occurs.
Article 2275. Other expenses. Right of separation
(1) If the prior heir incurs expenses in relation to the estate that do not fall under the provisions of art. 2274, then the subsequent heir, when the subsequent inheritance occurs, is obliged to reimburse them in accordance with the provisions regarding business management without a mandate.
(2) The prior heir has the right to separate the installation with which he equipped the property that is part of the estate.
Article 2276. Extraordinary expenses
The prior heir is not obliged to the subsequent heir to bear extraordinary expenses that are treated as an encumbrance on the initial value of the property forming part of the estate. The provisions of art. 2274 paragraph (2) apply to these expenses.
Article 2277. The heir’s right to information
subsequently
The subsequent heir has the right to request information from the prior heir regarding the state of the estate if there is reason to assume that the prior heir, through his administration, is essentially prejudicing the rights of the subsequent heir.
Article 2278. Granting guarantees. Lack of administration
(1) If the behavior of the prior heir or his precarious financial situation creates fears that the rights of the subsequent heir could be substantially prejudiced, the subsequent heir may request the granting of a guarantee.
(2) If he finds that the conditions of paragraph (1) are met, the notary shall oblige the prior heir to provide a guarantee, and if he does not provide it within the established term, the prior heir shall be deprived of administration, and the notary shall appoint an administrator of the estate in place of the prior heir in accordance with art. 2436. The administration shall cease if the prior heir provides the appropriate guarantee.
Article 2279. Effect of lack of administration
(1) If he was deprived of administration pursuant to art. 2278, the prior heir loses the right to dispose of the property of the estate.
(2) The provisions in favor of those who acquire rights from an unjustified person shall apply accordingly. For claims that form part of the estate, the deprivation of administration shall only have effect on the debtor if he has learned of the deprivation or if he is notified of it. The same rule shall apply in the event of the cessation of the deprivation of administration.
Article 2280. Obligation to transmit the mass
succession after the occurrence
subsequent inheritance. The obligation
to report
(1) The prior heir is obliged, after the occurrence of the subsequent inheritance, to transmit the estate to the subsequent heir in a condition that corresponds to good continuous administration until the date of transmission.
(2) Upon request, the prior heir must provide a report.
(3) From the date of occurrence of the subsequent inheritance, the provisions of Articles 2472-2484 shall apply accordingly.
Article 2281. Scope of the duty of diligence
Within the framework of administration, the prior heir owes the subsequent heir only the diligence that he habitually exercises in his affairs.
Article 2282. Exoneration from liability for
normal wear and tear
The prior heir is not liable for changes or damage to the property included in the estate that are caused by proper use.
Article 2283. Improper collection
or excessive fruit
If the prior heir picks fruit contrary to the rules of good administration or if he picks fruit in excess because this is necessary following a certain event, he is only entitled to the value of the fruit to the extent that the fruit due to him is negatively affected by the improper or excessive picking, and the value of the fruit is not used to restore the property in accordance with the rules of good administration.
Article 2284. Use for personal purposes
If the prior heir has used an property from the estate for his own purpose, then, after the subsequent inheritance occurs, he is obliged to reimburse the subsequent heir for the value of the use. This rule does not affect a broader liability for guilt.
Article 2285. Lease in case of subsequent inheritance
If a prior heir inherited an immovable property that is part of the estate and the property was leased at the time the subsequent inheritance occurred, the provisions of art. 609 shall apply accordingly.
Article 2286. Release of the prior heir
of restrictions and obligations
The testator may release the prior heir from the restrictions and obligations provided for in art. 2265 paragraph (1), art. 2266, 2268-2270, 2277-2281, 2283 and 2284.
Article 2287. Rule for interpreting the release
(1) If the testator has designated the subsequent heir with regard to what will remain of the estate when the subsequent inheritance occurs, it is presumed that the release from all restrictions and obligations provided for in art. 2286 has been ordered.
(2) The provisions of paragraph (1) shall apply, if there are doubts, also in the event that the testator has provided that the prior heir has the right to freely dispose of the estate.
Article 2288. Limitation of the obligation to transmit
(1) In the cases provided for in art. 2287, the obligation to transmit the prior heir is limited to the property of the estate that were retained by him. The prior heir may not request reimbursement of expenses related to the property from which he is exempted from transmitting under this article.
(2) If the prior heir, contrary to the provisions of art. 2265 paragraph (2), has disposed of the property forming part of the estate or has reduced the estate with the intention of disadvantageing the subsequent heir, he is required to compensate for the damage caused to the subsequent heir.
Article 2289. Effect of the occurrence of subsequent inheritance
(1) At the moment when the event leading to the occurrence of the subsequent inheritance occurs, the prior heir ceases to be an heir, and the inheritance passes to the subsequent heir.
(2) The legal provisions on inheritance shall apply to the occurrence of subsequent inheritance.
The term for renouncing the inheritance of the subsequent heir begins to run from the date on which he knew or should have known of the occurrence of the subsequent inheritance.
Article 2290. Provisions of the prior heir
after the occurrence of the subsequent inheritance
The prior heir has the right to dispose of the property forming part of the estate until the time when he knew or should have known about the occurrence of the subsequent inheritance. A third party cannot invoke this right of the prior heir if, at the time of the conclusion of the juridical act, the third party knew or should have known about the occurrence.
Article 2291. Maintenance of the mother of the future heir
subsequently
If, at the time when the event leading to the occurrence of the subsequent inheritance occurs, the subsequent heir is about to be born, then the mother’s right to maintenance is governed by the provisions of art. 2374, which shall apply accordingly.
Article 2292. Renunciation of subsequent inheritance
(1) The subsequent heir may renounce the inheritance as soon as the devolution of the inheritance has taken place.
(2) If the subsequent heir renounces the inheritance, it remains with the prior heir, unless the testator has otherwise provided.
Article 2293. Restoration of extinguished legal relations
If subsequent inheritance occurs, legal relationships extinguished by the devolution of the inheritance and by the confusion of right and obligation or right and encumbrance are considered not to have been extinguished.
Article 2294. Liability of the subsequent heir
for the obligations of the estate
(1) The provisions regarding the limitation of the heir’s liability for the obligations of the estate shall also apply to the subsequent heir; the place of the estate shall be taken by what the subsequent heir acquires from the inheritance, including the claims he holds against the prior heir.
(2) The inventory drawn up by the prior heir also benefits the subsequent heir.
(3) The subsequent heir may invoke the limitation of his liability in relation to the prior heir even if he bears unlimited liability in relation to other creditors of the estate.
Article 2295. Liability of the prior heir
for the obligations of the estate
(1) After the occurrence of the subsequent inheritance, the prior heir shall be liable for the obligations of the estate to the extent that the subsequent heir is not liable for them. Liability shall also subsist for those obligations of the estate which, in the relationship between the prior heir and the subsequent heir, fall to the prior heir.
(2) After the occurrence of the subsequent inheritance, the prior heir, except in the case where he bears unlimited liability, may refuse to perform the obligations of the succession estate to the extent that the share of the inheritance due to him is not sufficient. The provisions of art. 2445 and 2446 shall apply accordingly.
Article 2296. Obligation of the prior heir
to notify the creditors of the estate
successor
(1) The prior heir has an obligation towards the creditors of the estate to notify the competent notary without undue delay of the occurrence of the subsequent inheritance. The notification of the subsequent heir replaces the notification of the prior heir.
(2) The notary must allow any person who demonstrates a legitimate interest to inspect the notification.
Chapter V
bound
Article 2297. The legacy
(1) The testator may grant by will to one or more persons (legates) a patrimonial right, a sum of money, the remission of a debt or any other patrimonial advantage (bequest) without designating them as heirs.
(2) The heir or the legatee may be encumbered by a legacy. Unless the testator has established otherwise, the heir shall be considered encumbered.
Article 2298. Several persons charged
In the event that several heirs or several legatees are burdened with one and the same legacy, if there are doubts, the heirs are considered burdened in proportion to their inheritance shares, and the legatees – in proportion to the value of the assigned legacies.
Article 2299. Bequest in favor of legal heirs
If the testator has ordered that a certain property that is part of the estate be excluded from the inheritance left to the heir designated by him, this property is considered to be bound for the benefit of the legal heirs. The state, in this case, is not part of the circle of legal heirs.
Article 2300. Priority legacy
The legacy established in favor of an heir (priority legacy) is considered a legacy even if this heir is encumbered with a legacy.
Article 2301. Several legatees. The right to determine
heirs
(1) The testator may establish a legacy in favor of several persons so that the person encumbered with the legacy or a third party determines which of the several legatees shall receive the legacy.
(2) The determination by the person encumbered by the legacy shall be made by declaration to the legatee. The determination by the third party shall be made by declaration to the person encumbered by the legacy.
(3) If the person encumbered by the legacy or the third party cannot determine the legatee, all the designated legatees shall be considered joint and several creditors. This rule shall also apply if, at the request of persons having a legitimate interest, the notary sets a deadline for the person encumbered by the legacy or the third party to issue the declaration and this deadline expires, unless the declaration was made earlier. The legatee who has already received the legacy, if there are doubts, is not obliged to share it with the others.
Article 2302. Election of the legatee
If the testator has made a legacy for several persons so that the legacy is to be received by one of them, it is presumed that the person burdened with the legacy must decide who will receive the legacy.
Article 2303. Determination of share quotas
(1) The testator may establish a legacy in favor of several persons in such a way that the person encumbered by the legacy or a third party decides which of the property encumbered by the legacy should be received by each of the legatees. The decision shall be adopted in the manner provided for in art. 2301 para. (2).
(2) If the person encumbered by the legacy or the third party cannot adopt this decision, it shall be deemed that the legatees have received the right to equal shares. The provisions of art. 2301 paragraph (3) second sentence shall apply accordingly.
Article 2304. Alternative bequest
(1) The testator may establish a legacy so that the legatee receives one of several property. In this case, if the right of choice is granted to a third party, this shall be done by means of a declaration addressed to the person encumbered.
(2) If the third party cannot make the choice, the right of choice passes to the person encumbered by the legacy.
The provisions of art. 2301 paragraph (3) second sentence shall apply accordingly.
Article 2305. Bequest of generically determined property
(1) If the testator has determined the bequeathed property only by indicating the gender, a property that corresponds to the situation of the testator must be transmitted.
(2) If the determination of the property is transmitted to the legatee or a third party, the provisions of art. 2304 regarding the transmission of the right of choice to the third party shall apply.
(3) If the choice made by the legatee or a third party does not obviously correspond to the situation of the legatee, the person burdened by the legacy is obliged to execute the legacy as if the testator had not ordered anything regarding the method of determining the property to be transmitted.
Article 2306. Bequest with purpose
The testator who established the legacy for a specific purpose may transfer the right to choose the object of performance to the equitable assessment of the person burdened with the legacy or a third party.
Article 2307. Bequest over the same property
for the benefit of several people
If one and the same property is the subject of a bequest for the benefit of several persons, the provisions of Articles 2242-2246 shall apply accordingly.
Article 2308. Increase
(1) If one and the same property is the subject of a legacy for the benefit of several persons, in the event of the death of one of them before or after the opening of the inheritance, his share increases proportionally the shares of the other legatees. The same rule applies if the testator has determined the share of each. If some of the legatees have been left a common share, they, in relation to the other legatees, have the right to the increase in the first place.
(2) The testator may exclude the right to increase.
Article 2309. Accrual as a distinct legacy
The inheritance share that the legatee acquired based on the right of accretion is considered a distinct legacy in relation to the legacies and testamentary burdens that burden the present or deceased legatee.
Article 2310. Effects of the death of the testator
The legacy does not produce legal effects if the legatee is not alive at the time of opening the inheritance.
Article 2311. Forfeiture of the person encumbered with a legacy
The legacy remains valid even if the person encumbered by the legacy does not become an heir or legatee, provided that there is no reason to assume that the testator had another intention. In this case, the person who benefited from the loss of the person originally encumbered by the legacy is considered to be encumbered by the legacy.
Article 2312. Bequest of an enterprise
It is presumed that the legacy of an enterprise also includes its component parts acquired or created after the will was drawn up, operations which, at the time of the testator’s death, constitute an economic unit with the enterprise that is the object of the legacy, unless the will states otherwise.
Article 2313. The 15-year term in relation to
bequests under suspensive condition
(1) The legacy established under a suspensive condition or with an indication of the commencement term ceases to produce legal effects after the expiration of the 15-year term from the moment of opening the inheritance, if the term has not started to run or the condition has not been fulfilled earlier.
(2) If the legatee is not conceived at the time of opening the inheritance or his identity must be determined by an event that will occur after the opening of the inheritance, then the legacy ceases to produce legal effects upon the expiration of the 15-year period from the opening of the inheritance if, by this date, the legatee has not been conceived or the event that was supposed to determine his identity has not occurred.
Article 2314. Exceptions to the 15-year term
(1) In the cases provided for in art. 2313, the legacy is valid even after the expiry of the 15-year term if:
a) the legacy is constituted in the event of an event occurring in relation to the person encumbered by the legacy or the legatee, provided that the person in relation to whom the event was to occur is still alive;
b) the heir or legatee is encumbered with a legacy in favor of the brother or sister in the event that a brother or sister is born to them.
(2) If the person encumbered by the legacy or the legatee in relation to whom the event must be carried out is a legal person, the rules regarding the 15-year term shall apply.
Article 2315. Extension of the bequest to accessories
(1) If there are doubts, the legacy of the property also extends to the accessories existing at the time of opening the inheritance.
(2) If the testator has the right to claim compensation for the diminution in the value of the property as a result of the damage that occurred after the disposition of the legacy, if there are doubts, the legacy shall also extend to this claim.
Article 2316. Exclusion of encumbrances
(1) If an property from the estate is bequeathed, if there are doubts, the legatee may not claim the removal of the rights with which the property is encumbered. If the testator has the right to request their termination, if there are doubts, the legacy extends to this request as well.
(2) If an immovable property is mortgaged in favor of the testator, it shall be inferred from the circumstances whether the mortgage is considered to be connected with the immovable property.
Article 2317. Mortgage encumbrance
(1) If the bequeathed immovable property forming part of the estate is encumbered with a mortgage, if there are doubts, the legatee is obliged in relation to the heir to satisfy the mortgagee’s claims within the term to the extent that the obligation is extinguished from the value of the immovable property. Its value is determined according to the value at the time when the ownership right over the immovable property was transferred to the legatee. When determining the value, the encumbrances that have priority over the mortgage are deducted.
(2) If the third party is obliged to extinguish the testator’s obligation, if there are doubts, this obligation shall be borne by the legatee to the extent that the heir cannot be satisfied by the third party.
(3) The provisions of this Article shall not apply to a mortgage securing the performance of any future obligation to the same mortgagee.
Article 2318. Bequest of another’s property
(1) The transmission by bequest of a certain property does not produce legal effects if, at the time of opening the inheritance, the property is not part of the estate, except in the situation where the property must revert to the testator, even if it is not part of the estate.
(2) If the testator is only the possessor of the property, if there is doubt, the legacy shall be deemed to concern possession, except where it does not confer any legal advantage on the legatee.
(3) If the testator has the right to request the return of the property that is the subject of the bequest or to request compensation because the property was lost or stolen after he/she made the bequest, then, if there are doubts, it is considered that the object of the bequest is the testator’s claim.
(4) An property shall not be included in the estate pursuant to paragraph (1) if the decedent was obliged to alienate it.
Article 2319. Obligation to acquire property
(1) If the legacy which has as its object an property that is not included in the estate at the time of opening the inheritance is valid according to the provisions of art. 2318 paragraph (1), the person burdened by the legacy must acquire the respective property for the benefit of the legatee.
(2) If the person encumbered by the legacy cannot acquire the property, he must pay the corresponding consideration. If the acquisition involves disproportionate expenses, the person encumbered by the legacy may be released from the obligation by paying the consideration.
Article 2320. Impossible or prohibited bequest
(1) A legacy is void if it involves a performance that is impossible at the time of opening the inheritance or if it violates a legal prohibition at that time.
(2) The validity of the legacy is not affected by the impossibility of performance if the impossibility can be rectified, and the legacy will be executed if the performance becomes possible.
(3) If a bequest is granted which has as its object an impossible performance, has been disposed of under another suspensive condition or has been disposed of to commence on a certain date, the bequest is valid if the impossibility is rectified before the condition is fulfilled or that commencement date.
Article 2321. Adjunction, confusion
(1) The performance of the legacy shall also be considered impossible if the property is united, mixed or merged with another property in such a way that, by virtue of the provisions of art. 522 para. (1)-(3), the ownership right over the other property extends to the property that is the object of the legacy, and if the property has become co-ownership, and if the object has been processed or modified in such a way that, according to the provisions of art. 522 para. (4)-(6), the person who created the new property has become the owner.
(2) If the modification of the quality of the property was carried out in one of the ways provided for in paragraph (1) by a person other than the testator and, as a result, the person who left the inheritance acquired the right of co-ownership, if there is any doubt, the co-ownership shall be considered as the object of the legacy. If the testator has the right to take the property that loses its individuality, if there is any doubt, this right shall be considered as the object of the legacy. In the case of processing or transformation carried out by a person other than the testator, the provisions of art. 2318 paragraph (3) shall apply.
Article 2322. Bequest of the claim
If the object of the legacy is a claim of the testator, and its performance was carried out before the opening of the inheritance and the performance is part of the estate, if there is any doubt, it is considered that the legatee is entitled to this performance. If the claim referred to the payment of a sum of money, the respective sum of money, if there is any doubt, is considered as the object of the legacy, even when such a sum is not found in the estate.
Article 2323. Debt arising from a legacy
A bequest gives rise to the right of the legatee to request the person burdened with the bequest to return the property that constitutes the object of the bequest.
Article 2324. Revival of extinguished legal relations
If the testator has bequeathed a claim of his against the heir or if the object of the bequest is a right that encumbers an property or a right of the heir, the legal relationships that cease at the moment of opening the inheritance by the same person meeting the right and obligation or the right and burden are not considered extinguished with regard to the bequest.
Article 2325. Devolution of the legacy
The testator’s claim arises (devolution of the legacy) upon the opening of the inheritance subject to the right to renounce the legacy.
Article 2326. Bequest affected by modalities
If the legacy is made under a suspensive condition or is subordinate to a term on which it will begin and if the condition is fulfilled or the term begins after the opening of the inheritance, the devolution of the legacy takes place from the moment the condition is fulfilled or the term begins.
Article 2327. Bequest in the event of birth or other
event
If the legatee is not conceived at the time of opening the inheritance or the establishment of his identity is determined based on an event that occurs after the opening of the inheritance, then the devolution of the legacy takes place at the time of birth or, respectively, the occurrence of the event.
Article 2328. Period of uncertainty
For the time interval between the moment of opening the inheritance and the moment of devolution of the legacy, in the cases provided for in articles 2326 and 2327, the legal provisions for situations in which a benefit is due under a suspensive condition shall apply.
Article 2329. Acceptance and waiver
(1) The legatee has the option to accept the legacy or to renounce the legacy.
(2) The legal provisions relating to the acceptance of an inheritance or the renunciation of an inheritance shall apply accordingly to the acceptance of a legacy or the renunciation of a legacy, unless otherwise provided in this book.
(3) The right to request the performance of the legacy shall lapse if the legatee renounces the legacy, with the exceptions provided for by the testamentary provisions.
(4) Renunciation of a legacy is not considered a renunciation of an inheritance.
(5) The legatee may not accept only part of the legacy or renounce only part of the legacy.
(6) If a legatee is granted several legacies, the legatee may renounce all or some of them.
Article 2330. Term for performance of the legacy
If the term for executing the legacy is left to the discretion of the person charged, if there is any doubt, it is considered that the benefit becomes due at the time of the death of the person charged.
Article 2331. Guarantee against legal defects
(1) If the object of the legacy is a generically determined property, the encumbered person has, according to the provisions of art. 1108, the same obligations as the seller. He must transmit the object of the legacy free from legal defects within the meaning of art. 1122. The provisions of art. 1123 shall apply accordingly.
(2) If there are doubts, this rule shall also apply if the object of the legacy represents a specific property that is not included in the estate, without taking into account the limitation of liability resulting from the provisions of art. 2319.
(3) If the object of the legacy is an immovable property, if there are doubts, it is considered that the encumbered person is not liable for releasing the property from any encumbrances with limited real rights.
Article 2332. Warranty against material defects
If the object of the legacy is a property determined only generically, the legatee may request, if the property is defective, that a property without defects be delivered instead of this property. If the encumbered person has fraudulently concealed a material defect, the legatee may request damages for non-fulfillment instead of the delivery of a property without defects without setting an additional deadline for remediation. The legal provisions relating to guarantees against material defects of the property sold shall apply accordingly to these rights.
Article 2333. Fruits and benefits
If the object of the legacy is a specific property that is part of the estate, the encumbered person shall remit to the legatee the fruits received, as well as other benefits obtained by exercising the right from the time of the devolution of the legacy. The encumbered person shall not have to pay compensation for benefits that are not considered fruits.
Article 2334. Reimbursement of expenses
If a specific property that is part of the estate is encumbered, the encumbered person may request, according to the rules governing the relationship between the possessor and the owner, reimbursement of expenses incurred with the property after the opening of the inheritance, as well as of expenses incurred after the opening of the inheritance to release the property from encumbrances.
Article 2335. Bequest in the form of maintenance
(1) If the legacy consists of providing maintenance without specifying the amount of maintenance, the amount shall be agreed upon between the legatee and the person burdened by the legacy or, in case of dispute, shall be established by the court.
(2) If the legacy consists of providing maintenance for the benefit of a minor, if there are doubts, it is considered that the legacy expires on the date on which the legatee reaches the age of majority.
Article 2336. Performance of the legacy by the legatee
If the legatee is burdened with a legacy or a testamentary obligation, he is obliged to execute the legacy or testamentary obligation incumbent on him only if he is entitled to request the performance of the legacy left to him.
Article 2337. Liability of the encumbered legatee
(1) The legatee burdened with a legacy or a testamentary obligation may refuse their performance even after accepting the legacy to the extent that what he obtained through the legacy is not sufficient for performance.
(2) If, according to the provisions of art. 2311, another person replaces the encumbered legatee, he shall not be liable more than the original legatee would be liable.
Article 2338. Reduction of encumbrances
If the benefit to which the legatee is entitled is reduced either by virtue of the limitation of the heir’s liability, or by virtue of a right to the inheritance reserve, or by virtue of art. 2337, the legatee may proportionally reduce the encumbrances imposed on him, to the extent that the testator has not expressed a contrary intention.
Article 2339. Liability of the legatee
(1) The legatee is not liable for the obligations of the estate.
(2) If other property forming part of the estate are not sufficient to satisfy the obligations of the estate, the legatee shall be liable for these obligations up to the value of the property received.
(3) If the testator orders the assumption of an obligation of the estate by securing a legacy, the legatee burdened with the performance of the claim of the creditor of the estate shall be liable to the latter only within the limit of the value of the property deriving from the inheritance. This shall not prejudice the liability of the heir.
Article 2340. Prioritization
The testator may order that a legacy or a burden have priority over other encumbrances if the legacies or burdens imposed on the heir or a legatee will be reduced either by virtue of the limitation of the heir’s liability, or by virtue of a right to the reservation of succession, or by virtue of articles 2337 and 2338.
Article 2341. Substitutional bequest
If the testator disposes that, in the event that the legatee does not acquire the legacy, the object of the legacy shall revert to another person, then the provisions of art. 2249 paragraph (2), 2250 and 2251 shall apply accordingly.
Article 2342. The subsequent legatee
(1) If the testator disposes of a legacy in favor of a third party upon the completion of a date or upon the occurrence of an event after the date of devolution of the legacy, the first legatee is considered the encumbered legatee.
(2) In this case, the provisions of art. 2254, 2258 paragraph (1), 2259 and 2262 paragraph (1), relating to the designation of the subsequent heir, shall apply to the legacy accordingly.
Chapter VI
TASK
Article 2343. Pregnancy
(1) A charge is a testamentary provision by which the testator establishes an obligation incumbent on an heir or legatee (the burdened person) without expressly attributing to any person a right correlative to this obligation.
(2) If it is not clear from the will whether the testator has made a conditional disposition or imposed a duty, it shall be deemed that a duty has been imposed.
(3) The provisions of articles 2297, 2298, 2304-2306, 2311, 2320 and 2330 shall apply accordingly to the task.
Article 2344. Determination of the beneficiary.
Performance deadline
(1) When making a will the purpose of which the testator has established, he may entrust the person charged or a third party with determining the beneficiary.
(2) If the determination is the responsibility of the debtor, if he has been obliged by a final court decision to perform the obligation, the plaintiff may impose on him an appropriate deadline for performance. After the expiry of the deadline, if performance has not been made within the established deadline, the plaintiff is entitled to determine the beneficiary himself.
(3) If the determination is made by a third party, this shall be done by declaration to the person charged. If the third party cannot make the determination, this right shall pass to the person charged. The provisions of art. 2301 para. (3) second sentence shall apply accordingly. For the purposes of those legal provisions, the person charged and those who are entitled to request the performance of the task shall be considered interested persons.
Article 2345. Persons entitled to request enforcement
The performance of a charge may be requested by the heir, the co-heir and the person who immediately benefits from the loss of the right to inheritance of the person directly burdened with the charge. If the performance is in the public interest, it may also be requested by the competent authority.
Article 2346. Correlation between task and designation
as heir or legatee
The invalidity of a task entails the invalidity of the designation as heir or legatee burdened with a task only when it must be presumed that the testator would not have made the designation without the task.
Article 2347. Impossibility of performance
(1) If the performance of the task is impossible for reasons for which the burdened person is responsible, the person who would immediately benefit from the loss of the person directly burdened with the task has the right to request, in accordance with the legal provisions relating to the restitution of unjust enrichment, the restitution of the property transferred, to the extent that they were to be used for the performance of the task.
(2) The provisions of paragraph (1) shall also apply when the person charged has been obliged, by a final court decision, to perform the task that cannot be performed by a third party and the means of forced performance ordered against the person charged have been used without success.
Chapter VII
THE EXECUTOR
Article 2348. Appointment of the executor of the will
by will
(1) The testator may designate one or more executors by will.
(2) The testator may appoint another executor in the event that the designated executor becomes, before or after accepting his duties, unable to perform his duties.
Article 2349. Appointment of the executor of the will
by a third party
(1) The testator may entrust the appointment of the executor of the will to a third party, who is obliged immediately, after the opening of the inheritance, to appoint an executor.
(2) The designation or waiver of the right to designate shall be made by submitting an application to the notary conducting the succession procedure. The application must be notarized.
(3) The right granted to the third party to appoint the executor of the will shall cease upon the expiry of the term established by the notary conducting the succession procedure, at the request of a person with a legitimate interest.
Article 2350. Designation of assistants or successor
(1) The testator may authorize the executor to appoint one or more assistants (co-executors).
(2) The testator may authorize the executor to designate a successor.
(3) The designation shall be made in the manner provided for in art. 2349 paragraph (2).
Article 2351. Appointment of the executor of the will
by the notary
(1) If the designated person has waived the duties of executor or if the testator has not appointed an executor, but it is clear from the content of the will that the testator wishes an executor to be appointed, the notary shall appoint an authorized administrator, a lawyer or any other appropriate person who accepts to perform the duties of the executor.
(2) Until the appointment of the executor, the notary is obliged to hear the heirs and legatees, if possible without significant delay and without disproportionate expenses. The authorized administrator may not refuse the duties of executor without good reason.
Article 2352. Appointment of the executor of the will
without effects
The appointment of the executor of the will is ineffective if, at the time when he must exercise his duties, he has not reached the age of majority or a judicial protection measure is established in his regard.
Article 2353. Acceptance of the capacity of executor
testamentary or renunciation of this
quality
(1) The executor of the will exercises his duties from the date he accepted the appointment.
(2) Both the acceptance of the designation and the renunciation thereof are made by submitting a declaration to the notary conducting the succession procedure.
(3) The declaration may be filed only after the opening of the inheritance. The declaration is ineffective if it is made under a condition or with an indication of the term.
(4) At the request of the person having a legitimate interest, the notary conducting the succession procedure may grant the executor a term for accepting the appointment. If the executor has not submitted the declaration of acceptance to the notary conducting the succession procedure within the established term, he shall be deemed to have renounced the capacity of executor of the will.
Article 2354. Performance of testamentary dispositions
The executor is obliged to take all necessary actions to execute the testamentary dispositions.
Article 2355. Division of the estate between co-heirs
(1) If the testamentary provisions do not exclude the powers of partition of the executor of the will, in the event that there are several heirs, the executor of the will is empowered and obliged to carry out the partition of the estate according to the provisions of articles 2498-2523 by drawing up the partition plan.
(2) The executor of the will is obliged to request the opinions of the heirs regarding the draft distribution plan before drawing it up.
(3) One copy of the partition plan shall be sent to each heir and to the notary conducting the succession procedure.
(4) If the estate includes property for the alienation of which the law requires an authentic form, the distribution plan shall be drawn up in authentic form. The executor of the will shall be empowered to draw up on behalf of the co-heirs all the legal and material documents necessary to execute the distribution plan, including to dispose of property from the estate and to register property from the estate in the name of one or more co-heirs.
Article 2356. Administration of the estate
(1) The executor of the will is obliged to administer the estate. He is, in particular, empowered to take possession of the estate and to dispose of the property forming part of the estate. He is empowered to dispose of them free of charge only for the purpose of fulfilling moral obligations or rules of courtesy.
(2) Unless the will provides otherwise, the executor is obliged to provide maintenance from the estate to the persons provided for in art. 2408.
Article 2357. Contracting obligations
(1) The executor of the will is entitled to enter into obligations in respect of the estate if this is necessary for the proper administration of the estate. If the executor of the will can dispose of certain property from the estate, he may also assume obligations on behalf of the estate.
(2) The heir is obliged to give his consent to the contracting of the obligations provided for in paragraph (1), but subject to the right to invoke the limitation of liability for the obligations of the estate.
Article 2358. Extension of the right to contract
obligations
The testator may grant the executor the right to contract unlimited obligations with respect to the estate. But, even in this case, the executor has the power to make donations only within the limits established by the provisions of art. 2356 para. (1) third sentence.
Article 2359. Limitation of rights
(1) The executor of the will does not have the rights provided for in art. 2354-2357 if it is presumed that the testator did not intend to grant them to the executor of the will. If the executor of the will only has a certain share of the estate or certain property from the estate, the powers under the provisions of art. 2356 para. (1) second sentence are granted only in relation to this share of the estate or these property.
(2) If the executor of the will is not obliged to personally execute the testator’s provisions, he may request the heir to execute them, unless it can be assumed that the testator had another will.
Article 2360. Administration of the estate.
Duration of fulfillment
The testator may authorize the executor to administer the estate without assigning him other tasks than administration. He may also order that the executor continue to administer the estate after the performance of other tasks assigned to him. In case of doubt, it is considered that the executor has been assigned the tasks provided for in art. 2358.
Article 2361. Termination of duties upon expiration
the 30-year term
Testamentary dispositions drawn up in accordance with the provisions of art. 2360 shall cease to have effect upon the expiry of the term of 30 years from the opening of the inheritance. However, the testator may order that the administration shall continue until the death of the heir or the executor of the will or until the occurrence of an event related to one or the other. The provisions of art. 2314 paragraph (2) shall apply accordingly.
Article 2362. Limitation of the heir’s right of disposal
(1) The heir may not dispose of the property from the estate that is to be administered by the executor of the will.
(2) The provisions in favor of persons whose rights originate from an unauthorized person shall apply accordingly.
Article 2363. Active procedural capacity
The right under the administration of the executor of the will can only be exercised through the courts by him.
Article 2364. Passive procedural capacity
(1) Claims against the estate may be brought before the court both against the heir and against the executor of the will. If the executor of the will has not been granted the right to administer the estate, the claim shall be brought before the heir.
(2) The provisions of art. 2406 do not apply to the executor of the will.
(3) The creditor of the estate who has submitted a claim to the heir may also submit this claim to the executor of the will with the aim of having him admit the forced performance on the property under his administration.
Article 2365. The heir’s own creditor
Creditors of the heir who are not creditors of the estate cannot demand satisfaction of their claims from the property of the estate that are under the administration of the executor.
Article 2366. Inventory of the estate
(1) After accepting the duties, the executor of the will is obliged to immediately present to the heir the inventory of the property of the estate under his administration and of the obligations of the estate of which he is aware, as well as to provide him with the necessary assistance in drawing up the inventory.
(2) The inventory must be dated with the day of preparation and signed by the executor of the will. At the request of the heir, the executor of the will is obliged to legalize his signature.
(3) The heir may request to participate in the drawing up of the inventory.
(4) The executor of the will has the right, and at the request of the heir is obliged, to transmit the inventory to the competent body, competent person or notary.
(5) The expenses for drawing up and legalizing the signature on the inventory shall be borne by the estate.
Article 2367. Proper administration of the estate
successor
(1) The executor of the will is obliged to properly administer the estate.
(2) The executor of the will is obliged to carry out the instructions in the will of the testator regarding the order of administration. At the request of the executor of the will or of another person with a legitimate interest, the court may annul these instructions if their observance poses an essential danger to the estate.
(3) The provisions of art. 2435 shall apply accordingly to the executor of the will.
Article 2368. Transmission of the property of the estate
(1) At the request of the heir, the executor of the will is obliged to make available to him the property of the estate which the executor of the will obviously does not need for the performance of his duties. With the transfer of these property, the executor of the will’s right to administer them ceases.
(2) The executor of the will may not refuse to transfer these property on the basis of the existence of obligations of the estate that do not result from legacies and charges, nor from legacies and charges affected by modalities, if the heir guarantees the satisfaction of the obligations or the performance of the legacies or charges.
Article 2369. Relationship with the heir. Reports
(1) When determining the relationship between the executor of the will and the heir, the rules regarding the mandate shall apply accordingly.
(2) In the case of longer administration, the heir may request annual reports.
Article 2370. Liability of the executor of the will
(1) In the event of unjustified failure by the executor of his obligations, he shall be liable for the damage caused to the heir, as well as to the legatee, if a legacy was to be executed.
(2) Several executors of the will, in the event of unjustified non-performance, shall be jointly and severally liable.
Article 2371. Mandatory provisions
The testator cannot release the executor from the obligations he has under the provisions of articles 2366, 2367, 2369 and 2370.
Article 2372. Remuneration of the executor of the will
(1) The executor of the will may demand an appropriate remuneration for the performance of his duties, unless the testator has otherwise provided. If the executor of the will is an heir or legatee, the value of the estate or legacy shall be taken into account in determining the amount of remuneration, unless the testator has otherwise provided.
(2) If the heirs, legatees and executors of the will do not reach an agreement on the amount of remuneration, the court shall fix the amount of remuneration at the request of the executor of the will.
Article 2373. The executor of the will of the heir
subsequently
The testator may appoint a testamentary executor for the purpose of exercising the rights and fulfilling the obligations of the subsequent heir until the occurrence of the subsequent inheritance.
Article 2374. Reimbursement of expenses for
testamentary performance
(1) The executor of the will is entitled to reimbursement of necessary expenses incurred for the purpose of administering the estate and executing the testamentary dispositions.
(2) Expenses incurred for the purpose of administering the estate and executing testamentary dispositions shall be covered from the estate.
Article 2375. The executor of the legacy
The testator may also appoint an executor with the aim of ensuring the performance of the task imposed on the legatee.
Article 2376. Multiple executors
(1) Several executors of the will act jointly. In the event of disagreements between them, the decision shall be made by the notary conducting the succession procedure. If one of them dies, the remaining executors act independently. The testator may provide otherwise.
(2) Each executor of the will has the right to take, without the consent of other executors of the will, the necessary measures to preserve the property of the estate that are under their joint administration.
Article 2377. Termination of the executor’s duties
testamentary
The powers of the executor of the will cease upon his death or upon the occurrence of circumstances which, according to the provisions of art. 2352, render the designation ineffective.
Article 2378. Renunciation by the executor
testamentary
The executor of the will may renounce the performance of his obligations at any time. The renunciation shall be made by means of a declaration addressed to the notary conducting the succession procedure. The provisions on the termination of the mandate shall apply accordingly.
Article 2379. Revocation of the executor of the will
(1) At the request of the person having a legitimate interest, the court may revoke the executor of the will if there are valid reasons for this. Such reasons shall include, among others, the essential failure to perform obligations or the incompetence to properly administer the estate.
(2) Before being revoked, the executor of the will must, to the extent possible, be heard.
Article 2380. Access to submitted applications
The notary conducting the succession procedure must allow access to the applications filed in accordance with the provisions of art. 2349 paragraph (2), art. 2350 paragraph (3), art. 2353 paragraph (2) and art. 2378 second sentence to any person who demonstrates a legitimate interest in them.
Chapter VIII
REVOCATION, MODIFICATION AND EXPIRATION
WILL OR TESTAMENTAL PROVISION
Article 2381. Revocation of a will or
of the testamentary disposition
The testator may revoke any provision included in the will or the entire will at any time.
Article 2382. Revocation of the will by drawing up
a new testament
(1) Revocation is made by drawing up a new will.
(2) The will by which another will is revoked may be made by a different type of will than the revoked one.
Article 2383. Revocation of a will by destruction
or modification
A will may also be revoked if the testator destroys the document containing it, with the intention of revoking the will, or if he makes such changes in it as are usually made with the intention of revoking a written declaration of will. If the testator has destroyed the testamentary instrument or made changes to it in the manner indicated, it is presumed that he intended to revoke the will.
Article 2384. Restitution of the deposited will
in custody with a competent authority
(1) A will drawn up before a notary or in accordance with the provisions of art. 2227 shall be deemed revoked if the document sent for safekeeping is returned to the testator. The authority returning the document to the testator must inform the testator of the consequences of the return provided for in the first sentence, make an appropriate mention in the returned document and draw up a document confirming that both requirements have been met.
(2) The testator has the right to request the return of the will at any time. The will may only be returned to the testator personally.
(3) The provisions of paragraph (2) shall also apply to the will deposited pursuant to art. 2224.
The return of the handwritten will does not affect its validity.
Article 2385. Revocation of revocation
If the previous revocation of the testamentary disposition is revoked based on the will, if there is any doubt, the previous testamentary disposition is valid, as if it had not been revoked.
Article 2386. Existence of multiple wills
If the testator has drawn up several wills that complement each other, then they all have legal effects to the extent that they are compatible.
Article 2387. Revocation based on a subsequent will
(1) In the case of drawing up a new will, the previous will is revoked to the extent that it contradicts the subsequent will.
(2) In the event of the revocation of a subsequent will, if there is doubt, the previous will is valid, as if it had not been revoked.
Article 2388. Invalidity of the will or
of the testamentary disposition
Apart from other cases provided for by law, the will or testamentary disposition becomes null and void to the extent that:
a) the person for whose benefit the will was drawn up has lost the right to inheritance according to art. 2176;
b) the testated property was completely destroyed after the will was drawn up, but before the testator’s death, regardless of the cause of the destruction;
c) the testated property is alienated by the testator during his lifetime or did not belong to him;
d) violates the succession reserve.
Title IV
LEGAL STATUS OF THE HEIR
Chapter I
ACCEPTANCE OF INHERITANCE AND WAIVER
TO THE INHERITANCE
Article 2389. Devolution and renunciation of inheritance
(1) The inheritance passes to the entitled heir subject to his right to renounce the inheritance (devolution of the inheritance).
(2) The state cannot renounce legal inheritance.
Article 2390. Acceptance of inheritance and renunciation
to inheritance
(1) With the exceptions provided by law, the heir may no longer renounce the inheritance if he has accepted it implicitly, according to paragraph (2), or expressly, according to paragraph (3).
(2) Upon expiry of the waiver period, the inheritance shall be deemed accepted by the heir. In this case, the provisions of art. 139 para. (1) letter e) shall not apply to the heir who is a protected person or a minor.
(3) The heir may submit a declaration of acceptance of the inheritance in authentic form to the notary conducting the succession procedure before the expiration of the waiver period. The declaration may be authenticated by any notary or other person authorized to authenticate legal documents.
Article 2391. Term for renunciation of inheritance
(1) The renunciation of inheritance may be made within 3 months.
(2) The term shall begin to run from the date on which the heir learns of the devolution and of the grounds for his call to the inheritance, being informed in accordance with the provisions of art. 2547 para. (2) or in any other way. If the heir is called to the inheritance on the basis of a testamentary disposition, the term shall not begin to run before the notary conducting the succession procedure makes the testamentary disposition known to him. The provisions of art. 398 para. (1) letters a) and d) regarding the limitation period shall apply accordingly.
(3) Based on the heir’s request, the notary conducting the succession procedure may extend the waiver period or establish a new waiver period if the heir has missed the period for good reason and the other heirs do not object.
(4) If the conditions provided for in paragraph (3) are not met, the request for extension of the waiver period shall be resolved by the court.
Article 2392. Form of waiver
(1) The renunciation of inheritance is made by means of an authentic declaration filed with the notary conducting the succession procedure.
(2) The declaration may be authenticated by any notary or other person authorized to authenticate legal documents.
(3) After renunciation, the inheritance can no longer be accepted.
Article 2393. Moment of acceptance or waiver
to inheritance
The person called to the inheritance may accept the inheritance or renounce it after the opening of the inheritance.
Article 2394. Prohibition of acceptance or waiver
affected by modalities
Acceptance of an inheritance or renunciation of an inheritance cannot be made under a condition or with the establishment of a term.
Article 2395. Some grounds for calling for inheritance
(1) A person who is entitled to inherit under a testamentary disposition, if, in the absence of the testamentary disposition, he or she would have been entitled to inherit as a legal heir, may waive the inheritance as an heir designated by the will and accept the inheritance as a legal heir.
(2) The person who has the right to inherit as a testamentary heir may accept the inheritance on one of the grounds and renounce the inheritance on the other ground.
Article 2396. Error regarding the basis of the call to inheritance
(1) Acceptance is deemed not to have taken place if the heir was in error regarding the basis for the call to the inheritance.
(2) If there are doubts, the waiver extends to all grounds for calling for inheritance that are known to the heir at the time of filing the declaration.
Article 2397. Inadmissibility of partial acceptance
or partial waiver
Acceptance or waiver cannot be limited to a part of the inheritance share. Acceptance or waiver of a part of the inheritance share has no effect.
Article 2398. Inheritance of several inheritance shares
(1) A person who is entitled to several inheritance shares may accept one share and renounce another if he is entitled to those inheritance shares on different grounds.
(2) If the right to inheritance shares has the same basis, the acceptance or waiver of one of the inheritance shares shall also apply to the other, even if the devolution of one takes place later. The right to inheritance shares has the same basis even when the disposition is contained in different wills.
(3) If the testator has bequeathed several inheritance shares to the heir, he may authorize him by testamentary disposition to accept one inheritance share and renounce another.
Article 2399. Inheritance of the right of inheritance
(1) The right to inherit and the right to renounce the inheritance shall be transmitted to the heirs (transmission by inheritance).
(2) If the heir dies before the expiration of the waiver period without exercising the right in question, this period shall not expire before the expiration of the waiver period for the inheritance left by the heir.
(3) If there are several heirs of the heir, each may renounce the part of the inheritance corresponding to his or her share of the inheritance.
Article 2400. Effects of renunciation
(1) A person who renounces the inheritance shall be deemed never to have acquired the inheritance. The provisions of art. 2401 para. (1) shall remain applicable.
(2) The right to inheritance shall pass to the person who would have inherited if the person who renounced had not been alive at the time of opening the inheritance. The devolution shall be deemed to have taken place on the date of opening the inheritance.
(3) The person who, pursuant to paragraph (2), replaces the person who renounced has the right to accept or renounce the inheritance within the term provided for in art. 2391. The term is calculated from the date when the person replacing the person who renounced learned about the renunciation.
(4) The notary conducting the succession procedure is obliged to notify the person who acquires the inheritance as a result of the waiver of the waiver. The notary is obliged to allow any person with a legitimate interest to become aware of the waiver.
Article 2401. Creditor’s right in case of waiver
upon inheritance by the debtor
(1) The creditor may request that the obligations towards him that are incumbent on the debtor who has renounced the inheritance and who, at the date of the renouncement, is insolvent to be discharged from the estate within the limit of the inheritance share to which the debtor who has renounced the inheritance was entitled.
(2) The heirs may raise against the creditor all the exceptions that the debtor who renounced the inheritance could have raised.
(3) The part of the estate remaining after satisfying the obligations towards the creditor referred to in paragraph (1) shall revert to the heirs who collect the inheritance share of the debtor who renounced the inheritance.
Article 2402. The limitation period of the right
cancellation
(1) If the acceptance or waiver is voidable on grounds of error, fraud or violence, the action for annulment shall be time-barred within 3 months.
(2) In the case of the nullity of acceptance or waiver due to violence, the term shall be calculated from the date of removal of the danger, and in other cases – from the moment when the person who can invoke the nullity finds out or should have found out about the existence of the grounds for nullity. When determining the term, the rules on the suspension of the course of prescription shall apply accordingly.
(3) Cancellation is excluded if 3 years have passed since the moment of acceptance or waiver.
Article 2403. Method of appeal
The acceptance or waiver may be challenged by an action for annulment filed in the court of law at the place where the succession procedure is being conducted.
Article 2404. Contesting the omission of the waiver term
Omission of the deadline for renunciation can be contested under the same conditions as acceptance of the inheritance.
Article 2405. Effects of annulment
(1) Cancellation of acceptance is considered waiver, and cancellation of waiver – acceptance.
(2) The notary conducting the succession procedure is obliged to notify the person to whom the inheritance has reverted as a result of the renunciation of the cancellation of the renunciation. The provisions of art. 2401 para.(3) shall apply accordingly.
Article 2406. Impossibility of tracing the heir
until the inheritance is accepted
Until the inheritance is accepted, claims against the estate cannot be enforced against the heirs.
Article 2407. Management of affairs until renunciation
(1) If, until the renunciation of the inheritance, the heir managed the affairs of the estate, he has, in relation to the person who will become the heir, the rights and obligations of the manager according to the provisions relating to the management of affairs without a mandate.
(2) If, prior to the renunciation of the inheritance, the heir has disposed of an property from the estate, the legal effects of the act of disposition are not affected by the renunciation if the postponement was not possible without prejudice to the estate.
(3) The juridical act that should have been performed towards the heir, even if it was performed before the renunciation towards the person who renounced the inheritance, produces its legal effects even after the renunciation.
Article 2408. Maintenance of the mother of the future heir
If the birth of the heir occurs after the opening of the inheritance, the mother who is unable to support herself has the right to request, until the birth, the provision of maintenance appropriate to her situation from the estate or, if other persons are called to the inheritance along with her, from the child’s share of the inheritance. When determining the amount of the share of the inheritance, it is assumed that only one child will be born.
Article 2409. Presumption of inheritance by the state
(1) If, as a result of the procedure provided for in art. 2410, the heir is not determined or if all heirs have forfeited the right to inheritance, the notary conducting the succession procedure shall draw up a document confirming that there are no other heirs than the state.
(2) According to the act referred to in paragraph (1), the state is considered the heir and is issued a certificate of heir based on the vacant inheritance.
(3) The provisions of this article do not affect the right of the heir to submit the inheritance petition to the state as an heir based on the vacant inheritance according to the general rules.
Article 2410. Public announcement regarding the declaration
inheritance rights
(1) The preparation of the act provided for in art. 2409 must be preceded by a public announcement regarding the need to declare the rights to the inheritance, indicating the deadline for the declaration. The order of publication and the duration of the deadline for the declaration are determined according to the procedure of public summons of the creditors of the estate. The public announcement may not be made if the expenses for it are disproportionately high in relation to the value of the estate.
(2) The right to inheritance shall not be taken into account if, within 3 months of the expiry of the set deadline, evidence relating to the right to inheritance or the filing of an action against the state is not presented to the notary.
Article 2411. Legal status of the state until
upon finding the lack of heirs
Claims regarding the right to inheritance may be submitted in favor of or against the state as a legal heir only after the notary issues a document stating the absence of other heirs.
Chapter II
CUSTODY OF THE INHERITANCE ESTATE
Article 2412. Grounds and forms of custody
of the estate
(1) After the death of the testator, the notary shall take measures to ensure the custody of the estate if:
a) no heir is known;
b) the known heirs are not at the place of opening of the inheritance;
c) it is not known whether there is any heir who has accepted the inheritance;
d) the heir is a minor and has no legal representative;
e) a procedure for the establishment of a judicial protection measure has been initiated regarding the heir and he does not have a legal representative;
f) there are other grounds provided for by law.
(2) Custody measures for the estate may include:
a) applying seals;
b) deposit in the notarial depository or at a specialized institution, if, during the inventory, sums of money, securities or other valuables are found, a mention of this being made in the inventory act;
c) the appointment of the custodian of the estate.
(3) Until the opening of the succession procedure, any notary in whose territory of activity the place of opening of the inheritance is located is competent to take measures for the custody of the succession mass. After the opening of the succession procedure, the competence passes automatically to the notary who conducts it.
(4) Central and local public authorities, police bodies, judges, notaries, lawyers and bailiffs are obliged to inform about the need to apply custody measures if one of the circumstances provided for in paragraph (1) has become known to them.
Article 2413. Application of custody measures
(1) Custody measures may be applied until the heirs accept the estate, unless the law provides otherwise.
(2) The notary shall apply custody measures on his own initiative, unless the law provides otherwise.
(3) The notary may also apply custody measures at the request of a creditor of the estate, a legatee or another person who has a right to the estate if the failure to apply custody measures may jeopardize the rights of those persons to the estate.
(4) In the event of a dispute regarding the status of heir, the notary may apply custody measures based on the decision of the court examining the dispute.
(5) In the cases provided for in paragraphs (3) and (4), the application of the custody measure may be made after the acceptance of the inheritance by the heirs, in particular if the activity of an heir or the patrimonial situation of the heir endangers the preservation of the estate and the satisfaction of rights from the estate.
Article 2414. Custodian of the estate
(1) The notary may appoint a custodian for the custody of the estate, whom the notary may order regarding the possession, use or disposal of the property. Upon appointing the custodian, the notary may draw up an inventory of the estate or may appoint a bailiff for this purpose.
(2) Any person who is suitable to exercise custody may be appointed as custodian. If all the persons agree, one of the successors may be appointed as custodian, otherwise another person chosen by the notary shall be appointed. The authorized administrator may not refuse the appointment as custodian without good reason.
(3) The notary may revoke the custodian who does not ensure proper custody of the estate or does not comply with the notary’s orders.
(4) The custodian is obliged:
a) to administer the estate with diligence in order to preserve it;
b) to provide maintenance from the estate to the person provided for in art. 2408;
c) to fulfill the obligations of the estate from the account of the estate according to art. 2415;
d) to report to the notary and the heirs about the custody measures;
e) in the cases provided for in art. 2413 paragraph (3), as well as in other cases where it is necessary to preserve the estate, to take the estate from the possession of a third party or an heir in his own possession or to ensure the separation of the estate from the heir’s property in any other way;
f) if necessary, to submit a request to open the succession procedure to the competent notary or to take other measures to identify the heirs if the public notaries of the Republic of Moldova do not have the competence to carry out the succession procedure.
(5) The custodian may dispose of property from the estate only for the purpose of settling the obligations of the estate and covering the expenses related to the custody of the estate. The custodian may not dispose of an immovable property that is part of the estate without the approval of the notary conducting the succession procedure. The notary may impose other limits on the custodian’s powers, which shall be specified in the certificate of custodian of the estate.
(6) The heir does not have the right to dispose of the estate that is in custody.
(7) The notary may refuse to appoint a custodian of the estate if it is presumed that the estate is not sufficient to cover the expenses related to the custody. However, the notary shall appoint a custodian if the person requesting the application of the custody measures pays as a guarantee, within the period and to the account indicated by the notary, the amounts that are planned to cover the respective expenses.
Article 2415. Fulfillment of obligations by the custodian
(1) If a custodian has been appointed, he or she, after drawing up the inventory, shall satisfy the claims included in the inventory if they have become due.
(2) The custodian may satisfy claims that are not yet due only with the consent of the heirs.
(3) If the custodian contests a claim, he will satisfy this claim only within the framework of the enforcement procedure carried out in accordance with the law.
(4) The provisions of art. 2435 shall apply accordingly to the custodian.
Article 2416. Custodian’s remuneration
The custodian of the estate is entitled to remuneration from the estate for the custody provided. The remuneration shall be determined by the notary, in a reasonable amount.
Article 2417. Termination of custody measures
(1) The notary shall order the termination of the custody measures of the estate if the grounds for applying the custody measures provided for in articles 2412 and 2413 have ceased to exist.
(2) The notary shall order the termination of custody if the estate is not sufficient to cover the expenses related to custody, and the person requesting the application of custody measures does not advance, within the deadline and to the account indicated by the notary, the amounts planned to cover the respective expenses.
(3) If the application for the application of custody measures is resolved pursuant to art. 2413 paragraph (3) or (4), the person requesting the application of the measures shall be heard before the termination of the custody measures.
Chapter III
HEIR’S RESPONSIBILITY FOR
LIABILITIES OF THE INHERITANCE ESTATE
Section 1
Obligations of the estate
Article 2418. Liability of the heir for
obligations of the estate
(1) The heir is liable for the obligations of the estate.
(2) Obligations of the estate shall be considered, in addition to the obligations of the deceased, also the obligations resulting from the quality of heir, in particular the obligations resulting from legacies and burdens.
Article 2419. Care and funeral expenses
(1) The heirs shall bear all expenses caused by the care and treatment during the last illness of the decedent, as well as the expenses necessary for the funeral, which must correspond to the custom of the place and the size of the inheritance.
(2) The claims regarding the payment of the expenses provided for in paragraph (1) shall be satisfied from the estate account in priority to other claims, including those secured by mortgage or pledge.
Article 2420. Maintenance of family members
(1) The heirs are obliged to provide the members of the deceased’s family who were supported by him and lived with him until his death, during the first 40 days after the opening of the inheritance, with maintenance in an amount equivalent to the maintenance granted until death and to allow them to use the home and household items. The testator may provide otherwise by will.
(2) In the case provided for in paragraph (1), the provisions regarding bequest shall apply accordingly.
Section 2
Summons of creditors of the estate
Article 2421. Summons regarding the submission of claims
Creditors of the estate may be required to declare their claims in the public summons procedure in the order established by this section.
Article 2422. Request for the conduct of the procedure
summons
(1) The procedure for summoning creditors of the estate is carried out by the notary conducting the succession procedure at the request of:
a) any heir. However, the application may not be filed by the sole heir if, according to the law, he bears unlimited liability for the obligations of the estate;
b) the administrator of the estate;
c) the custodian of the estate or the executor of the will, if they have powers to administer the estate.
(2) The heir, as well as the executor of the will, may request the summons procedure to be carried out after acceptance of the inheritance.
(3) If there are several heirs, regardless of the person who filed it, the request for the initiation of the summons procedure and the table of claims submitted shall benefit all other heirs; the legal provisions regarding unlimited liability shall remain unaffected. In the case of subsequent inheritance, this rule shall apply accordingly to the prior heirs and the subsequent heirs.
(4) If the heir has sold his share in the inheritance, both the buyer and the heir may file a request for the initiation of the summons procedure. Regardless of who filed it, the request for the initiation of the summons procedure and the table of claims submitted shall benefit both the seller and the buyer; the legal provisions on unlimited liability shall remain unaffected. This rule shall apply accordingly to cases in which a person has sold the share in the inheritance acquired by contract or has otherwise obliged himself to sell the share in the inheritance acquired by virtue of the law or otherwise.
(5) The list of known creditors, indicating the known contact address, shall be attached to the request for the initiation of the summons procedure.
(6) If a request has been filed to initiate insolvency proceedings for the estate, the summons procedure cannot be carried out, and if it has already begun, it will be stopped.
Article 2423. Content of the summons.
Publication and dispatch of the summons
(1) The notary conducting the succession procedure shall prepare and ensure the single publication of the summons in the Official Gazette of the Republic of Moldova. After publication, the notary shall send the summons to the creditors indicated in art. 2422 para. (5).
(2) Additionally, the notary may publish the summons in other media.
(3) The summons shall contain:
a) name and address of the notary office; number of the inheritance file;
b) the name, surname, habitual residence of the deceased and date of death;
c) the date of birth and identification number of the deceased, if these are indicated in the death certificate;
d) the call addressed to the creditors of the estate to submit their claims to the notary;
e) the deadline for submitting claims, which will be 6 months from the date of publication of the summons in the Official Gazette of the Republic of Moldova;
f) the warning that creditors of the estate who have not submitted their claims are sanctioned by law by the fact that their claims will be satisfied only to the extent that there are property of the estate remaining after satisfying the claims of creditors who have not been sanctioned by law. The right to be satisfied before legatees and beneficiaries of testamentary assignments remains unaffected;
g) the warning that, after the division of the estate, each co-heir is only liable for the part of the obligations of the estate proportional to his share of the estate.
Article 2424. Notification of the creditor about
submission of the claim
(1) The creditor’s notification of the submission of the claim shall be submitted to the notary conducting the succession procedure and shall contain:
a) the name/name of the creditor, domicile/headquarters;
b) the full amount of the amounts or other benefits owed to the creditor on the date of filing; the basis of the claims and their maturity;
c) mentions of any preferential rights or guarantees.
(2) The notification shall be accompanied, as appropriate, by originals or certified copies of the supporting documents from which the claims and the acts establishing the guarantees originate. Failure to attach them shall not affect the legal effects of the notification.
Article 2425. Table of claims submitted.
Right of access to procedural documents
(1) After the deadline for the summons has expired, the notary conducting the summons procedure shall draw up the table of claims submitted based on the notifications submitted within the deadline and shall bring it to the attention of the applicant of the procedure and the heirs who have accepted the inheritance.
(2) The notary must allow the persons indicated in art. 2422 paragraph (1), the creditor of the estate, the legatee, as well as any other person who demonstrates a legitimate interest, to take note of the documents of the summons procedure, including the creditors’ notifications, the annexes thereto and the table of claims submitted.
Article 2426. Claims that are not reached
The procedure for public summons of creditors does not affect the rights of pledgees, of those assimilated to pledgees, in the event of insolvency, nor the rights of creditors who, in the event of forced performance on a property, are entitled to satisfaction of their claims from the account of this property to the extent that these rights relate to the satisfaction of the obligations relating to these properties from the account of the property. The same rule applies to creditors whose claims are secured by provisional registration or by notation or to those who are entitled, in the event of insolvency, to request the separation from the debtor’s estate of the property which constitutes the object of their right.
Article 2427. Inviolability of legacies and burdens
The right to legacies and the rights resulting from encumbrances are not affected by the procedure of public summons of creditors, by way of derogation from the provisions of art. 2526 letter a).
Article 2428. Exclusion of unsubmitted claims
(1) The heir may refuse to satisfy the claim of a creditor of the estate (excluded creditor) whose claim was not submitted in the procedure for the public summons of creditors (excluded claim), if the estate is exhausted by satisfying the claims of non-excluded creditors. The heir is, however, obliged to satisfy the excluded claim with priority over the obligations arising from legacies and encumbrances, except in the case where the creditor submitted his claim after the obligations arising from legacies and encumbrances had been satisfied.
(2) The heir must surrender the surplus in the event of forced performance that provides for the satisfaction of the creditor, in accordance with the legal provisions on unjust enrichment. The heir may refuse to hand over the property that are part of the estate and that have been preserved, paying their equivalent. A final court decision ordering the heir to satisfy an excluded claim has the same effect as the satisfaction of the claim against another creditor.
Article 2429. Exception of lateness in declaring
CLAIMS
(1) A creditor of the estate who, on the basis of his claim, raises claims against the heir after the expiry of the 3-year period from the opening of the inheritance shall be assimilated to an excluded creditor within the meaning of Art. 2428, unless the heir or other persons acting on behalf of the estate (custodian, administrator of the estate, prior heir, etc.) became aware of the claim before the expiry of the 3 years or the creditor submitted his claim within the framework of the procedure for public summons of creditors. If the decedent is declared deceased or the time of death is established in accordance with the Code of Civil Procedure, the term shall begin to run from the moment when the decision on the declaration of death or the establishment of the time of death becomes final.
(2) The obligation incumbent on the heir according to the provisions of art. 2428 paragraph (1) second sentence extends to the obligations correlative to the rights regarding legacies and charges only to the extent that the creditor, in the event of insolvency of the estate, would have had a higher priority rank.
(3) To the extent that a creditor is not affected in accordance with the provisions of art. 2426 by the public summons procedure, the provisions of par. (1) shall not apply to him.
Section 3
Limitation of heir’s liability
Article 2430. Establishment of an administration over
of the estate. Insolvency
the estate
(1) The heir’s liability for the obligations of the estate is limited to the property of the estate and does not extend to the property he has outside the share of the estate due to him, if the administration of the estate is ordered for the purpose of satisfying the creditors or if the insolvency process of the estate has been initiated.
(2) By way of derogation from the provisions of paragraph (1), the heir shall be liable with his or her property outside the inheritance share (unlimited liability) for all the obligations of the inheritance estate in the cases provided for in art. 2449 paragraph (1) and art. 2460 or only for the obligation of the creditor referred to in art. 2461 paragraph (3).
Article 2431. Fiction of the existence of legal relations
SWITCHED OFF
If the administration of the estate is ordered or the insolvency process of the estate is initiated, it is considered that the legal relationships that were extinguished upon the opening of the inheritance by the same person combining the qualities of debtor of the obligation and creditor of the correlative right or of creator of the guarantee and creditor of the secured right are not extinguished.
Article 2432. Ineffectiveness of compensation
(1) If, before the administration of the estate is ordered or the insolvency proceedings of the estate are initiated, a creditor of the estate has offset his claim that is part of the estate with the claim of the heir, without his consent, after the administration of the estate is ordered or the insolvency proceedings of the estate are initiated, the respective offset shall be deemed not to have taken place.
(2) The provisions of paragraph (1) shall also apply when the creditor who is not a creditor of the estate has offset his claim against the heir with a claim from the estate.
Article 2433. Liability of the heir
for previous administration.
Reimbursement of expenses
(1) If the administration of the estate is ordered or the insolvency proceedings of the estate are initiated, the heir shall be liable to the creditors of the estate for the administration of the estate up to that time, as if he had been managing the estate as its administrator since the acceptance of the inheritance. The provisions relating to business management without a mandate shall apply accordingly to the actions of the heir in relation to the estate, carried out before the acceptance of the inheritance.
(2) The claims of the creditors of the estate submitted in accordance with paragraph (1) shall be considered claims forming part of the estate.
(3) Expenses incurred by the heir are covered from the estate to the extent that he would be entitled to request their reimbursement according to the legal provisions relating to the mandate or business management without a mandate.
Article 2434. Extinguishing the obligation of the estate
The settlement of an obligation of the estate by the heir must be considered by the creditors of the estate to have been carried out from the estate if, based on the circumstances, the heir could consider that the estate would be sufficient to settle all the obligations of the estate.
Article 2435. Request to initiate proceedings
insolvency of the estate
(1) If the heir learns of the insolvency or over-indebtedness of the estate, he is obliged to request the initiation of insolvency proceedings for the estate without delay, but not before accepting the inheritance. Failure to comply with this obligation shall render the heir liable to the creditors for the damage caused thereby. In the event that there are several heirs, their liability for this damage shall be joint and several.
(2) The claims of the creditors of the estate submitted in accordance with paragraph (1) shall be deemed to be part of the estate.
(3) For the purpose of determining the sufficiency of the estate, obligations resulting from legacies and burdens, as well as obligations towards excluded creditors within the meaning of art. 2428 and 2429, shall not be taken into account.
(4) Negligence in not knowing about over-indebtedness is assimilated to knowledge of the state of insolvency or over-indebtedness. Negligence is considered in particular when the heir does not request a public summons to the creditors of the estate, although he has reason to assume that there are unknown obligations of the estate. The mere fact that the administrator or custodian of the estate or the executor of the will was aware of the state of insolvency or over-indebtedness does not indicate negligence on the part of the heir.
(5) Public summons of creditors is not mandatory if the procedure involves disproportionately high expenses in relation to the value of the estate.
Article 2436. Administration of the estate
(1) The administration of the estate is ordered by the notary conducting the succession procedure, at the request of the heir, even before the acceptance of the inheritance.
(2) At the request of a creditor of the estate, its administration shall be ordered if there are reasons to believe that, as a result of the conduct of an heir or the patrimonial situation of an heir, the satisfaction of the claims of all creditors of the estate from the estate is jeopardized. The request may no longer be submitted if 2 years have passed since the acceptance of the inheritance by at least one heir.
(3) Before ordering the administration of the estate, the notary shall summon for a hearing all the co-heirs and, as the case may be, the executor of the will or the custodian of the estate.
(4) Only the administrator authorized under the law may be appointed as administrator of the estate.
Article 2437. Refusal to establish administration
The order for the administration of the estate may be refused if the expenses are disproportionately high in relation to the value of the estate.
Article 2438. Publicity of the establishment of administration
(1) The notary is obliged to publish information about the establishment of the administration in the Official Gazette of the Republic of Moldova, indicating the name and surname of the deceased, the number of the inheritance file and the identification data of the administrator of the estate.
(2) The notary shall issue to the administrator a certificate confirming his/her capacity (certificate of administrator of the estate). The certificate shall be returned upon the termination of the capacity of administrator of the estate.
(3) The administrator of the estate shall ensure that the establishment of the administration of the estate is recorded in the registers of publicity of rights concerning the property of the estate.
Article 2439. Effect of the decision to institute administration
(1) Upon the establishment of the administration of the estate, the heir and, if any, the executor of the will shall be suspended from the right to administer and dispose of the estate. In this case, claims against the estate may only be submitted to the administrator of the estate. The provisions of art. 74, 77, 83, 92 and 93 of the Insolvency Law no. 149/2012 shall apply accordingly.
(2) Forced performance and seizure of property forming part of the estate, at the request of a creditor who is not a creditor of the estate, are prohibited.
Article 2440. Obligations and liability of the administrator
the estate
(1) The administrator is obliged to administer the estate in the interest of the creditors and the heir, including having the right to dispose of the property of the estate, and to ensure, from the estate’s account, the performance of the estate’s obligations regardless of their priority rank.
(2) The administrator of the estate is responsible for the administration of the estate and towards the creditors of the estate. The provisions of art. 2433 para. (2), 2434 and 2435 shall apply accordingly.
Article 2441. Transmission of the estate
(1) The administrator of the estate shall transmit to the heir what remains of the estate only when the known obligations of the estate are discharged.
(2) If an obligation cannot be performed at the moment or if it is litigious, the transmission of the estate may only be made if a guarantee has been granted to the creditor. For a claim affected by a condition, a guarantee shall not be required if the possibility of fulfilling the condition is so remote that the claim currently has no patrimonial value.
(3) The administrator of the estate shall send the heir and the notary conducting the succession procedure a report on the administration, and the notary shall order the termination of the administration of the estate and shall ensure the deletion of the mention of the administration from the publicity registers.
Article 2442. Remuneration of the administrator.
Reimbursement of expenses
(1) For the performance of his duties, the administrator of the estate is entitled to an appropriate remuneration, the amount of which is established by the notary conducting the succession procedure.
(2) The administrator of the estate shall also be entitled to reimbursement of expenses related to the administration. The provisions of art. 1495 shall apply accordingly.
(3) The remuneration and expenses are covered from the estate, even if they were advanced by an heir, a creditor or another person with a legitimate interest.
Article 2443. Termination of the administration of the estate
(1) The administration of the estate shall cease by operation of law upon the initiation of the insolvency proceedings of the estate.
(2) The administration of the estate may be revoked by the notary conducting the estate procedure if the expenses for it exceed the value of the estate.
Article 2444. Exception of exhaustion of the estate
(1) If the insolvency proceedings of the estate have been terminated as a result of the final distribution of the estate or by the confirmation by the court of the restructuring plan, then the heir shall be liable in accordance with the provisions of Articles 2428 and 2429, paragraph (2). However, for the obligations of the estate governed by the restructuring plan, the heir shall be liable in accordance with the plan.
(2) Claims against the estate which, during the insolvency process, were not included in the final consolidated table of claims shall be considered excluded within the meaning of art. 2428.
Article 2445. Exception of insufficiency of the estate
(1) If, due to the insufficiency of the estate, it is not reasonable to establish its administration or to initiate insolvency proceedings of the estate or, for the same reason, the administration of the estate ceases or the insolvency proceedings cease, then the heir may refuse to satisfy the creditors of the estate, to the extent that the estate has become insufficient. In this situation, the heir is obliged to transfer what remains of the estate in order to satisfy the creditors in the order of the compulsory performance procedure.
(2) The rights of the heir are not excluded solely by the fact that, after the opening of the inheritance, the creditor has obtained, through the enforcement procedure or otherwise, a right of pledge or mortgage or a provisional registration or a notation.
Article 2446. Consequences of lifting the exception
of insufficiency of the estate
(1) If the heir makes use of his right provided for in art. 2445, the provisions of art. 2433 and 2434 shall apply to his liability and his right to reimbursement of expenses.
(2) Legal relationships, extinguished at the time of opening the inheritance by the merging of the capacity of debtor and creditor by the same person or by the merging of the claim and the guarantee by the same person, in the relations between the heir and the creditor are considered not to have been extinguished.
(3) The final decision ordering the heir to satisfy the claims of one of the creditors has the same effect for another creditor as the satisfaction of the claims.
(4) The obligations arising from the right to legacies and charges must be taken into account by the heir as if they had to be executed within the insolvency process of the estate.
Article 2447. Over-indebtedness as a result of
legacies and tasks
If the over-indebtedness of the inheritance results from legacies and burdens, the heir is entitled, even if the conditions provided for in art. 2445 are not met, to begin satisfying these claims in accordance with the provisions of art. 2445 and 2446. The heir may refuse to hand over the property from the inheritance estate that have been preserved, paying their equivalent value.
Section 4
Inventory. Unlimited liability
of the heir
Article 2448. The right to draw up an inventor
The heir has the right to submit to the notary a list containing the composition of the estate (inventory).
Article 2449. Establishing the deadline for
inventory preparation
(1) At the request of a creditor of the estate, the notary must set a deadline for the heir to draw up the inventory (inventory deadline). If the inventory has not been submitted by the expiry of the deadline, the heir shall be liable without limitation for the obligations of the estate.
(2) The creditor who files the application must justify the validity of his claims. The establishment of the term remains valid if it is found that the claim does not exist.
Article 2450. Duration of the inventory period
(1) The deadline for drawing up the inventory must be at least one month and at most 3 months. The deadline is calculated from the receipt of the document by which it was established.
(2) If the term is established until the acceptance of the inheritance, it begins to run only from the moment of acceptance of the inheritance.
(3) At the request of the heir, the term may be extended, at the discretion of the notary.
Article 2451. Establishment of a new term
(1) If, for reasons beyond his control, the heir was prevented from submitting the inventory within the deadline, from requesting an extension of the inventory deadline when there are justified circumstances, or from respecting the 2-week deadline provided for in paragraph (2), then, at the request of that heir, the notary shall set a new deadline for submitting the inventory.
(2) The request for the establishment of a new deadline must be submitted within 2 weeks of the removal of the impediment and no later than 1 year after the expiry of the deadline initially established.
(3) Until a new term is established by the notary, if possible, the creditor of the estate at whose request the initial term was established must be heard.
Article 2452. Suspension of the term
The provisions of art. 398 para. (1) letter d), which regulates the calculation of the limitation period, shall apply accordingly to the running of the inventory period and the 2-week period provided for in art. 2451 para. (2).
Article 2453. Death of the heir before the expiration of
TERM
If the heir dies before the expiration of the inventory period or before the expiration of the two-week period provided for in art. 2451 paragraph (2), the period shall not be considered fulfilled before the expiration of the period for renouncing the inheritance left by the heir.
Article 2454. Informing the guardianship authority
If the heir is a minor or an adult for whom a judicial protection measure has been established, the notary is obliged to notify the guardianship authority regarding the establishment of the inventory deadline.
Article 2455. Ineffectiveness of establishing the term
The establishment of an inventory period shall have no effect if the administration of the estate has been established or the insolvency proceedings of the estate have been initiated. An inventory period may not be established during the administration of the estate or during the insolvency proceedings of the estate. If the insolvency proceedings have been concluded by the final distribution of the estate or by the confirmation of the restructuring plan, the drawing up of an inventory is not required for the removal of unlimited liability.
Article 2456. Contents of the inventory
(1) The inventory must include all property and all obligations that are part of the existing estate at the time of opening the inheritance.
(2) The inventory shall also include the description of the property forming part of the estate, to the extent necessary to establish their value, as well as the valuation of the respective property.
Article 2457. Preparation of the inventory by the heir
When drawing up the inventory, the heir must call for assistance from a competent authority, a competent public official or a notary. The inventory is signed by the heir and countersigned by the person called to assist him.
Article 2458. Preparation of the inventory by an authority
or a competent person
(1) At the request of the heir, the notary shall draw up the inventory or order it to be drawn up by a competent authority or a competent public official. By submitting the request, the inventory deadline shall be maintained.
(2) The heir is obliged to provide the information necessary for the preparation of the inventory.
(3) The inventory shall be submitted to the notary by the authority or public official who prepared it.
Article 2459. Invocation of existing inventory
If the notary has an inventory that complies with the provisions of articles 2457 and 2458, it is sufficient if, before the expiration of the inventory period, the heir declares to the notary that he appropriates this inventory.
Article 2460. Unlimited liability of the heir
in case of untruthfulness of the inventory
(1) If the heir intentionally omits to include in the inventory an essential part of the property of the estate or, with the aim of prejudicing the creditors, admits the inclusion of a non-existent obligation, then he shall be liable without limitation for all the obligations of the estate. This rule shall also apply when, in the case provided for in art. 2458, the heir refuses to provide information or intentionally delays providing it for a long time.
(2) If the data on the property of the inheritance are incomplete and the situations provided for in paragraph (1) do not exist, then the heir may be granted a new inventory deadline for completing the inventory.
Article 2461. Affidavit
of the heir
(1) At the request of a creditor of the estate, the heir shall submit a declaration on his own responsibility before the notary that the data in the inventory about the property forming part of the estate are, to the best of his knowledge, complete and truthful.
(2) Before submitting the declaration, the heir may complete the inventory.
(3) The heir who refuses to submit the declaration according to paragraph (1) shall bear unlimited liability towards the creditor who submitted the application. This rule shall also apply when the heir fails to appear within the originally established deadline or within the new deadline established on the basis of the creditor’s request, unless there is a sufficiently justified reason for the failure to appear.
(4) The same creditor or another may request that the heir submit the declaration again only if there are reasons to believe that the heir learned about the existence of other inheritance property after submitting the previous declaration.
Article 2462. Liability in the case of several
inheritance quotas
If an heir is called upon to several inheritance shares, his liability for the obligations of the inheritance mass is established with respect to each inheritance share as if the respective shares belonged to different heirs. This rule applies in cases of accretion and in those provided for in art. 2189 only when the inheritance shares are burdened differently.
Article 2463. Presumption when drawing up the inventory
If the inventory was submitted within the deadline, in the relations between the heir and the creditors of the estate, it is presumed that at the time of opening the inheritance there were no other property of the estate than those indicated in the inventory.
Article 2464. Access to inventory
The notary must allow consultation of the inventory to any person who justifies their legitimate interest in this regard.
Article 2465. The State as Legal Heir
The State as the legal heir cannot be given an inventory deadline. The State is obliged to provide the creditors of the estate with information about the value of the estate. The State’s liability as the legal heir is limited to the value of the estate in all cases.
Article 2466. Custodian of the estate.
The administrator of the estate
(1) The custodian of the estate, appointed in accordance with art. 2414, may not be set a deadline for inventory. He is obliged to provide the creditors of the estate with information about the value of the estate. The custodian of the estate may not waive the limitation of the heir’s liability.
(2) The provisions of paragraph (1) shall apply accordingly to the administrator of the estate.
Article 2467. Effects of unlimited liability
of the heir
(1) If the heir bears unlimited liability for the obligations of the estate, the provisions of Articles 2428-2430 and 2432-2435 shall not apply. In such a case, the heir shall not be entitled to request the establishment of the administration of the estate. However, the heir may invoke the limitation of liability in accordance with the provisions of Articles 2428 or 2429 if a situation described in the provisions of Article 2449 paragraph (1) second sentence or Article 2460 paragraph (1) subsequently arises.
(2) The application of the provisions of Articles 2432-2435 and the right of the heir to request the establishment of the administration of the estate are not excluded by the fact that the heir is unlimitedly liable towards some of the creditors of the estate.
Section 5
Dilatory exceptions
Article 2468. Exception in the first 3 months
(1) The heir has the right to refuse to fulfill the obligations of the estate during the first 3 months after accepting the inheritance, but not after the date of filing the inventory.
(2) For the period during which he has the right to refuse to perform the obligations according to the provisions of paragraph (1), the heir owes only the interest for delay at the rate provided for in art. 874.
The consumer debtor does not owe any such late payment interest.
Article 2469. Exception to public summons of creditors
(1) If the heir, within the first 12 months after accepting the inheritance, requested the public summons of the creditors of the estate and the request was accepted, then he has the right to refuse the performance of the obligations of the estate until the conclusion of this procedure.
(2) If the table of claims submitted is drawn up or the request for the procedure to be ordered is rejected, it shall not be considered concluded before the expiry of a period of 2 weeks, which begins from the communication of the table and before the resolution of the appeal submitted within the deadline.
Article 2470. Exclusion of exceptions in the case of
unlimited liability
(1) The provisions of Articles 2468 and 2469 shall not apply if the heir bears unlimited liability.
(2) The provisions of paragraph (1) shall also apply where a creditor, in accordance with the provisions of art. 2426, is not affected by the public summons of the creditors of the estate, provided that a right obtained only after the opening of the inheritance in the framework of the enforced performance procedure or on the basis of a seizure, nor a provisional registration or a notation in a publicity register made after the opening of the inheritance, shall not be taken into account.
Article 2471. Calculation of the term within custody
on the estate
If, before the acceptance of the inheritance, a custodian is appointed to administer the estate, the deadlines established by the provisions of articles 2468 and 2469 paragraph (1) begin to run upon his appointment.
Chapter IV
CLAIMS FROM INHERITANCE
(HEREDITY PETITION)
Article 2472. The owner’s obligation to return
the estate
(1) The heir may request the return of these property from any person who has acquired property that are part of the estate, by virtue of an inheritance right that does not actually belong to him (the owner of the estate).
(2) The right of action based on the provisions of paragraph (1) shall be prescribed within 10 years from the date on which the heir became aware or should have become aware of the circumstances on which his right of inheritance is based. After the expiry of this period, the heir shall be deemed to have renounced the inheritance.
(3) The limitation period provided for in paragraph (2) shall begin to run with respect to the heir who left the estate in the possession of the surviving spouse only after the latter’s death.
(4) The provisions of this chapter shall apply accordingly if the possession concerns only a share of the inheritance.
Article 2473. Subrogation within the estate
(1) The property that the owner of the estate acquired through a juridical act from the funds taken from the estate are also considered to be part of the estate.
(2) The belonging to the estate of a claim thus acquired may be invoked against the debtor only when he was aware of this belonging. The provisions of art. 829-832 shall apply accordingly.
Article 2474. Products returned by the possessor
The possessor of the estate must return to the heir the benefits obtained. The obligation to return also extends to the fruits over which the possessor has acquired the right of ownership.
Article 2475. Application of the rules on enrichment
unwarrantable
(1) To the extent that the possessor of the estate cannot make restitution, his obligation shall be established in accordance with the legal provisions relating to restitution in the event of unjust enrichment.
(2) The provisions of paragraph (1) shall apply in particular in the event that third parties have acquired the right of ownership over the property forming part of the estate.
Article 2476. Reimbursement of expenses
(1) The owner of the estate is obliged to return the property forming part of the estate only in exchange for the reimbursement of all expenses to the extent that they are not offset by unjustified enrichment, which must be returned in accordance with the provisions of art. 2475. The provisions of art. 496 and 497 apply to the claim based on the right of ownership.
(2) Expenses incurred by the possessor of the estate to free himself from the encumbrances of the inheritance or to satisfy the obligations of the estate shall also be reimbursed.
(3) To the extent that, according to legal provisions, the heir must also reimburse expenses that were not incurred for individual property, in particular expenses referred to in paragraph (2), the right of the possessor of the estate remains unaffected.
Article 2477. Liability in the context of the examination of the case
(1) If the possessor of the estate must return goods that are part of the estate, the heir’s action regarding the payment of compensation for damage, loss or other cause of impossibility of return shall be regulated in accordance with the provisions applicable to the relations between the owner and the possessor, from the moment the claim action is filed with the court.
(2) The same rule applies to the heir’s right to the restitution or payment of the value for the benefits obtained, as well as to the right of the possessor of the estate to the reimbursement of expenses.
Article 2478. Liability in case of bad faith
If, at the time of commencement of possession, the possessor of the estate is not acting in good faith, he shall be liable as if the heir’s action had been brought before the court at that time. If the possessor of the estate subsequently learns that he is not an heir, he shall be liable in the same manner from the time he became aware of this fact. This shall not affect the more extensive liability caused by the delay.
Article 2479. Liability for unlawful acts
If the possessor of the estate has acquired an property from the estate through a crime or unlawful dispossession, he is liable in accordance with the legal provisions relating to liability for torts. The possessor in good faith of the estate is liable for unlawful dispossession in accordance with those legal provisions only if the heir had already acquired actual possession of the property.
Article 2480. Obligation of the possessor of the estate
to provide information
(1) The possessor of the estate is obliged to provide the heir with information regarding the property that make up the estate and their location.
(2) The same obligation applies to a person who, without being the possessor of the estate, enters into possession of an property from the estate before the heir actually enters into possession of the estate.
Article 2481. Obligation of persons who have resided
with the one who left the legacy of giving
information. Confirmation by declaration
at your own risk
(1) The person who, at the time of opening the inheritance, lived in the household of the person who left the inheritance is obliged to provide the heir, upon request, with information about the operations carried out in connection with the inheritance and about what is known to him/her regarding the location of the property forming part of the estate.
(2) If there are reasons to assume that the information was provided negligently, the person is obliged, at the request of the heir, to submit a declaration on his own responsibility before the notary, confirming, to the best of his knowledge, the completeness and veracity of the information.
Article 2482. Liability in the event of filing claims
by the heir regarding certain
property from the estate
The liability of the possessor of the estate with regard to the claims that the heir has regarding the specific property of the estate is regulated by the legal provisions relating to claims from the inheritance (inheritance petition).
Article 2483. Persons who acquire the inheritance
from the owner of the estate
The person who acquired the estate by contract from a possessor of the estate is considered the possessor of the estate in relation to the heir.
Article 2484. Claims of the person who has been declared
deceased
(1) The person whose death is declared in accordance with the Code of Civil Procedure, who survived after the time established as that of his death, may request the restitution of the estate, in accordance with the legal provisions relating to the claim from the inheritance (petition of inheritance).
As long as the person is alive, the person’s right does not expire before the expiration of the 1-year period from the moment he learned about the declaration of death or the establishment of the time of death.
(2) The same provisions shall also apply in the event that the death of a person is erroneously assumed, in the absence of a court decision declaring the death or without establishing the time of death.
Chapter V
PLURALITY OF HEIRS
Section 1
Legal relations between co-heirs
§1. Indivisibility
Article 2485. Common property of co-heirs
(indivisibility)
(1) If the decedent has several heirs (co-heirs), the estate becomes the common property of the co-heirs from the moment of opening the inheritance (division).
(2) The indivisibility ceases through partition or through the acquisition by the same person of all the inheritance shares.
(3) Until the end of the division, the provisions of Articles 2486-2497 shall apply.
(4) During the period of indivision, the legal provisions regarding joint ownership in shares shall apply accordingly to the estate to the extent that they do not contradict the provisions of this book.
Article 2486. The right of disposal of each co-heir
(1) Each co-heir may dispose of his share of the inheritance. The contract by which the co-heir disposes of his share of the inheritance must be notarized.
(2) The co-heirs may not dispose of their share of distinct property from the estate.
Article 2487. Registration of rights in registers
from advertising to sharing
(1) If the rights of the co-heirs over certain property in the estate are registered in a public register until the division, the share of the respective right shall not be indicated.
(2) If the co-heirs have disposed of their inheritance share in favor of another co-heirs, the disposer shall be excluded from the list of right holders in the advertising register.
(3) If the co-heir has renounced his share of the inheritance in favor of a third party, he will be excluded from the list of right holders in the advertising register and the third party will be registered in his place.
Article 2488. Preemptive right of co-heirs
(1) If a co-heirs sells his share of the inheritance to a third party, the other co-heirs have the right of pre-emption.
(2) The term for exercising the right of pre-emption is 2 months. The right of pre-emption is inherited.
Article 2489. Invoking the right of pre-emption
in relation to the buyer
(1) If the sold share has been transferred to the buyer, the co-heirs may invoke against him the right of pre-emption that they have against the seller according to the provisions of art. 2488. The right of pre-emption against the seller expires with the transfer of his share of the inheritance.
(2) The seller must promptly inform the co-heirs about the transfer of the inheritance share based on the sale.
Article 2490. Liability of the purchaser of the share
successor
If the co-heirs exercise their right of pre-emption, upon the transfer of the inheritance share to the co-heirs, the buyer is released from liability for the obligations of the estate. His liability is maintained, however, if he is liable to the creditors of the estate in accordance with the provisions of art. 2433-2435. The provisions of art. 2445 and 2446 shall apply accordingly.
Article 2491. Subsequent alienation of the inheritance share
If the buyer transfers the acquired inheritance share to a third party, the provisions of articles 2486, 2489 and 2490 shall apply accordingly.
Article 2492. Joint administration of the estate
(1) The administration of the estate shall be the joint responsibility of the heirs. Each co-heir is obliged to the others to participate in the measures necessary for its proper administration. Each co-heir may take the necessary measures for its preservation without the participation of the others.
(2) In the case of joint administration, the provisions of Articles 1945, 1947, 1948 and 1950 shall apply. The division of the fruits shall not occur before the division of the estate. If the division of the estate is excluded for a period exceeding 1 year, each co-heir may request the division of the net gain at the end of each year.
Article 2493. Claims that are part of
the estate
If a claim is part of the estate, the debtor may only perform his obligation towards all the heirs together, and each co-heir may only request the performance of the obligation towards all the heirs. Each co-heir may request that the debtor register the property in the names of all the heirs, and if the property cannot be registered, to hand it over to a depository designated by the notary.
Article 2494. Disposition of the property of the estate.
Compensation
(1) The heirs may dispose of an property that is part of the estate only jointly.
(2) The claim that forms part of the estate cannot be offset by the debtor with a claim he has against a co-heir.
Article 2495. Subrogation
What is acquired on the basis of a right relating to the estate or as compensation for the destruction, damage or theft of an property forming part of the estate, or by a juridical act relating to the estate, is considered to form part of the estate. The provisions of art. 2473 para. (2) apply to the claim arising from such a juridical act.
Article 2496. Satisfaction of the obligations of the estate
(1) The obligations of the estate shall be satisfied, first of all, from the estate. If an obligation of the estate has not matured or is litigious, the necessary property shall be retained for its satisfaction.
(2) If an obligation of the estate must be fulfilled only by some of the co-heirs, they may request that the performance be made only from what is due to them under the division.
(3) If necessary, to fulfill the obligation, the estate shall be converted into money.
Article 2497. Distribution of surplus
(1) The surplus remaining after fulfilling the obligations of the estate shall be transferred to the heirs in proportion to each of their inheritance shares.
(2) Documents relating to the personal relationships of the decedent and his family, as well as documents relating to the entire estate, remain common.
§2. Division of the estate
Article 2498. The concept of division of the estate
and how to share
(1) Each co-heir may request at any time the division of the estate, to the extent that nothing else results from Articles 2499-2501.
(2) The division of the estate determines which property or shares of the right to the property, as well as which rights and obligations of the estate are acquired by each co-heir.
(3) The estate shall be divided among the co-heirs according to the inheritance shares based on the usual value of the property in the estate on the date of division. By agreement of the parties, an property in the estate may be assigned a value based on a special interest of one of the co-heirs.
(4) The division shall take into account the obligation to report donations that is incumbent, as the case may be, on the heirs according to the provisions of art. 2515-2523. By means of a division contract, the co-heirs may waive, in whole or in part, the obligation to report donations.
(5) The legal provisions relating to the division of property subject to the right of joint ownership into shares shall apply accordingly to the division of the estate to the extent that they do not contravene the provisions of this book.
(6) The division may also be carried out before the registration of the rights of the co-heirs over certain property from the estate in the public registers.
(7) If, at the date of opening the inheritance, the composition of the estate includes property that are the subject of joint ownership rights in common or joint obligations in common, these property and obligations may be the subject of division between the co-heirs only after they have been divided, within the meaning of paragraph (2), between the co-owner in common, on the one hand, and all the co-heirs or, as the case may be, the executor of the will or the administrator of the estate, on the other hand (division of joint property and obligations in common).
Article 2499. Postponement of the distribution of the estate
(1) To the extent that the inheritance shares are undetermined due to the fact that a co-heir is about to be born, the division is excluded until the reason preventing the determination is removed.
(2) Partition is excluded, to the extent that the co-heirs cannot yet be determined, and until a decision is rendered on the approval of the adoption, the annulment or nullity of the adoption or until the registration of a foundation established in accordance with the testamentary disposition of the decedent.
(3) If all the co-heirs have concluded a contract by which they have agreed to postpone the division of the estate, the division may not be requested before the expiry of the term established in the contract. If a term has not been established or it is longer than 10 years, a term of 10 years shall be deemed to have been established.
(4) Partition is excluded during the period in which the estate is under administration or in insolvency proceedings.
Article 2500. Exclusion of partition by disposition
the one who left the inheritance
(1) The testator may, by reason of death, order that the distribution of the estate or of the separate property of the estate be excluded or made subject to compliance with a notice period. The provisions of art. 1951 para. (2) and (3), 1952 and 1953, as well as art. 496 shall apply accordingly.
(2) A testamentary disposition shall not be effective if 30 years have passed since the opening of the inheritance. The testator may establish that the testamentary disposition shall be valid until a certain event occurs in respect of a co-heir or, if he designates a subsequent heir or disposes of a legacy, until the occurrence of the subsequent inheritance or, respectively, the occurrence of the devolution of the legacy. When the co-heir in respect of whom an event must occur is a legal person, the provisions regarding the 30-year period shall apply.
(3) The estate may not be divided until the expiration of the term or the occurrence of the event provided for in paragraph (1) or, as the case may be, in paragraph (2), unless the co-heirs unanimously agree otherwise.
Article 2501. Postponement of the distribution of the estate
until the summons procedure is completed
public
Each co-heirs may request that the partition be postponed until the completion of the procedure for public summons of creditors, required under the provisions of art. 2422, or until the expiry of the term for declaring claims, provided for in art. 2527. If the public summons has not yet been requested or the publication of this requirement has not been ordered under the provisions of art. 2527, the postponement may be requested if the request is submitted without delay or the public summons has been published without delay.
Article 2502. General principles regarding the formation
and the assignment of lots from the table
successor
(1) When forming the lots of the estate and assigning them to the co-heirs, the special needs and interests of each co-heir, the wishes of the holders of the inheritance shares that form the majority of the estate and the will expressed by the testator through a testamentary disposition shall be taken into account.
(2) If instead of one successor, several descendants inherit, based on the right of representation, the division shall be carried out first between the lineages and, subsequently, within the lineage.
(3) An property that is part of the estate and cannot be divided in kind or that, if it remained in the co-ownership of the co-heirs, could not be used usefully according to its intended purpose shall be assigned to one of the co-heirs.
(4) If the heirs do not reach an agreement on the assignment of an property, the property shall be sold at public auction or, with the consent of all, at auction between the co-heirs, and the proceeds of the sale shall be assigned to the co-heirs in proportion to their inheritance shares.
(5) If, upon division of the estate, the value of the property assigned to an heir is greater than the value of his or her share of the estate, the co-heirs are obliged to pay a share to the other co-heirs.
(6) When dividing the estate, the property that make up an economic unit, a set or another universality whose separation would reduce its value will not be separated if at least one of the co-heirs opposes the separation, except in the case where the separation was ordered by testamentary disposition.
(7) When dividing the estate, property with special sentimental value for a family shall not be sold if at least one of the co-heirs opposes the sale. In this case, the property shall be sold at auction only between the co-heirs.
(8) If, after the division of the estate, new property of the estate are discovered, they will be divided according to the same rules (complementary division).
Article 2503. Preference in the allocation of property
from the estate
(1) The co-heirs have the preferential right to the assignment of the property of the estate of which they were co-owners together with the deceased at the date of opening the inheritance. This rule does not affect the legal provisions or the provisions of the articles of association of commercial companies regarding the inheritance of the social share.
(2) The co-heirs have the preferential right to the assignment of the ownership right or the lease right that belonged to the deceased over the dwelling in which that co-heirs had their habitual residence on the date of opening the inheritance, as well as over the furniture with which it was equipped.
(3) The co-heirs have the preferential right to the assignment of the ownership right or the lease right that belonged to the deceased over the property in which that co-heirs carried out a business or entrepreneurial activity on the date of opening the inheritance, as well as over the movable property with which they were endowed.
(4) The co-owner has the preferential right to the universal assignment of movable property necessary for the exploitation of the agricultural land if the ownership or lease of that agricultural land has passed through devolution to that co-owner or he concludes a new lease with respect to that agricultural land.
(5) If several co-heirs invoke preferential rights, the ability of the applicants to administer and maintain the property in question shall be taken into account. If the property relates to an activity or is a social share in a commercial company, the duration of the applicant’s personal participation in that activity before the date of opening the inheritance shall be taken into account.
Article 2504. Testator’s disposition regarding division
the estate
(1) By testamentary disposition, the testator may establish the manner of partition. The testator may, in particular, provide that the partition shall be left to the equitable discretion of the executor.
(2) The distribution plan drawn up by the executor of the will in accordance with the testamentary provisions may be annulled by the court, at the request of any of the co-heirs, if it is manifestly unfair, requesting judicial distribution instead.
Article 2505. Division of the estate by contract
(1) The co-heirs shall share the estate through the partition contract between them if no executor has been appointed or if the appointed executor does not draw up the partition plan within the period granted by the notary conducting the succession procedure.
(2) The division by contract may be total or partial. It is partial when the estate is preserved with respect to certain property or with respect to some of the co-heirs.
(3) If the estate includes property for the alienation of which the law requires authentic form, the partition contract shall be concluded in authentic form.
(4) If the same persons are co-heirs to several estates, a single division by contract may be used for all estates.
Article 2506. Judicial division of the estate
(1) The court shall divide the estate based on the partition action filed by one of the co-heirs if there are grounds to annul the partition plan drawn up by the executor of the will or if the co-heirs fail to conclude a partition agreement.
(2) When introducing the partition action, the estate subject to partition shall be briefly described, the partition plan shall be proposed, and the efforts previously made to reach a partition by contract shall be described.
(3) If the co-heirs fail to conclude with the joint co-owner a contract for the division of the common property and obligations in the joint estate within the meaning of art. 2498 paragraph (7) and if, at the same time, according to paragraph (1) of this article, an action for the division of the estate has been filed, any participant in the division of the estate may request the court to carry out, in the same process, after involving the joint co-owner in the process, also the division of the common property and obligations in the joint estate.
Article 2507. Appointment of the notary
(1) If the complexity of the partition operations justifies it, the court shall appoint a notary to carry out the partition operations, under the supervision of the court.
(2) The notary is chosen by the co-heirs or, in the absence of an agreement, by the court.
(3) The designated notary shall summon the parties and request them to provide all documents useful for carrying out the partition operations.
(4) The designated notary shall inform the court of the difficulties encountered and may request from the court any measure likely to facilitate the carrying out of the partition operations.
(5) The appointed notary may, if the value or composition of the estate justifies it, engage an expert, chosen by the parties or, in the absence of an agreement, appointed by the court.
(6) The designated notary may request the court to summon the parties or their representatives, in his presence, in order to attempt their conciliation.
(7) If conciliation is not successful, the court shall send the parties before the designated notary, who shall draw up a report setting out the parties’ positions and including the draft partition plan.
Article 2508. The designated representative of the co-heirs
who does not show up
(1) If one of the co-heirs does not appear when summoned by the designated notary, the latter may set a 3-month deadline for the co-heir to appoint a representative.
(2) If the heir or his representative does not appear on the date set in the notary’s notification, the latter shall draw up a report and submit it to the court so that a representative may be appointed for the co-heir who did not appear.
(3) In the case provided for in paragraph (2), the court, by decision, shall appoint a representative for the heir. The authorized administrator or the lawyer providing state-guaranteed legal assistance may not refuse to act as the heir’s representative without a valid reason.
(4) The designated representative may conclude the partition contract on behalf of a co-heirs only with the approval, by decision, of the court that designated him. The draft of the partition contract shall be attached to the request for approval.
Article 2509. Deadline for preparing the project
sharing plan
(1) Within 1 year from his appointment, the notary shall draw up the draft partition plan.
(2) The term provided for in paragraph (1) shall be suspended:
a) in case of appointment of an expert, until the issuance of the expert report;
b) in the case of a sale ordered by conclusion according to art. 2511, until the day of its definitive realization;
c) in case of a request to appoint a representative according to art. 2508 paragraph (2), until the day of his appointment;
d) in case of sending the parties to court according to art. 2507 paragraph (6), until this stage is completed.
(3) In the event of the complexity of the partition operations, at the request of the designated notary or one of the co-heirs, the court may extend the term provided for in paragraph (1) by no more than 1 year.
Article 2510. Powers of the court
(1) The court supervises the conduct of the partition operations and compliance with the term provided for in art. 2509.
(2) For this purpose, the court may, including ex officio, summon the parties or the notary, may impose fines and may order the replacement of the designated notary.
(3) If a division contract has been concluded between the co-heirs, the designated notary shall communicate this to the court, which shall order the termination of the process.
(4) In case of disagreement between the co-heirs regarding the draft partition plan drawn up by the notary, the latter shall submit to the court a report setting out the positions of the parties and including the draft partition plan. The court may hear the parties and the designated notary and attempt a conciliation.
(5) The court resolves the aspects of the partition plan on which there is disagreement and approves the partition plan.
(6) In case of homologation, if a drawing of lots is required for the assignment of the lots in the estate, the court, by the same decision, orders the drawing of lots either in the presence of the court or in the presence of the designated notary.
Article 2511. Auction of estate property
successor
(1) The court shall order, during the trial, by conclusion, and upon resolution of the action, by decision, under the conditions it determines, the sale at auction, in accordance with the Enforcement Code, of those property in the estate that cannot be divided in kind or cannot be easily assigned.
(2) The co-heirs may unanimously decide that the adjudication shall take place only between them. In the absence of unanimity, the auction shall be public.
(3) The co-heirs may agree that the sale shall be made at any price offered by the auction participants. They may also agree that the sale shall not be made below a certain price.
Article 2512. Effects of the division of the estate
(1) It is considered that each co-heir inherited alone, on the date of opening the inheritance, all the property that were assigned to him within his lot or that he received following the sale and that he was never the owner of the other property in the estate.
(2) The provisions of paragraph (1) shall also apply in relation to property acquired through any other juridical act through which the division is carried out.
(3) The provisions of paragraph (1) shall apply regardless of whether the division refers to the entire estate, only to a part of it or only to some co-heirs.
(4) However, juridical acts validly concluded with respect to the property of the estate shall maintain their legal effects even after the division.
Article 2513. Liability of co-heirs in connection with
with the division of the estate
(1) The co-heirs are liable, one to another, according to the rules of sale and purchase, for material or legal defects arising from a cause prior to the partition, unless the partition contract provides otherwise. Each co-heir is obliged, in proportion to his share, to personally compensate the co-heir for the damage suffered.
(2) If one of the co-heirs is insolvent, the share for which he is liable shall be covered proportionally by the co-heir who is the victim of the defect and the other solvent co-heirs.
(3) The co-heirs continue to be liable, under the law, for an obligation of the estate that was assigned to a co-heir’s share.
Article 2514. Cancellation of the sharing agreement
(1) The sharing contract may be annulled on grounds of violence or fraud, under the terms of the law.
(2) The partition contract may also be annulled on grounds of error under the law if the error occurred regarding the existence or size of the inheritance shares or regarding the ownership of the property in the inheritance estate.
(3) The co-heirs may not invoke nullity on grounds of error, fraud or violence if, after being able to file an action for annulment, they have disposed of one of the goods in the lot assigned to them.
(4) If the consequences of error, malice or violence can be eliminated in a way other than annulling the partition, the court, at the request of one of the parties, may order a complementary or rectification partition.
(5) If a co-heirs was unknown and was omitted from the partition, he may only demand from the other co-heirs, according to art. 2472-2484, the share that he would have received if he had participated in the partition, in kind or by paying its value, without annulling the partition.
(6) If the division is affected by injury, the disadvantaged co-heirs shall be compensated for the damage, at the choice of the other co-heirs, in kind or by payment of the value. Action based on injury is excluded in the case of sale of the inheritance or of the inheritance share if in the sale-purchase contract the parties have covered the risk of injury by an express clause.
§3. Donation report
Article 2515. Report of donations by descendants
(1) The descendants of the deceased who collect the inheritance as legal heirs are obliged among themselves, at the time of division, to report the donations received from the person who left the inheritance, during his lifetime, to the extent that the person who left the inheritance did not order the exemption from the report.
(2) Amounts granted free of charge to cover current expenses, as well as expenses for higher or business education, shall be reported to the extent that they were disproportionate to the patrimonial possibilities of the decedent. The reporting of these benefits shall be excluded to the extent that the decedent exempted them from reporting.
(3) Exemption from reporting may be made through a donation contract or a testamentary disposition.
(4) Benefits provided to the descendant pursuant to the legal obligation of maintenance or other obligations imposed by law shall not be reported.
Article 2516. Reporting obligation in case of forfeiture
from the right to inheritance of a descendant
(1) If, before or after the opening of the inheritance, a descendant who, as an heir, would have been obliged to report, loses his right to inheritance, the obligation to report the donations made to him falls on the descendant who takes his place based on the right of representation.
(2) If the testator has designated a substitute in place of the descendant who loses the right to inheritance, if there are doubts, it is considered that the designated heir will not receive more than the descendant would have received, taking into account the obligation of reporting.
Article 2517. The descendant’s obligation to report
testamentary heir
If the testator has designated the descendants as heirs of what would be theirs as legal heirs or if the testator has established the descendants’ inheritance shares so that they are in the same proportions as the legal inheritance shares, then it is considered that the descendants are obliged to report according to the provisions of art. 2515 and 2516.
Article 2518. Donation in favor of a descendant
more distant or adopted
(1) The donation received by a more distant descendant before the loss of the right to inheritance of a closer descendant and that received by the descendant who, as a subsequent heir, replaced another descendant shall not be reported unless the testator expressly ordered the report at the time of the donation.
(2) The same provisions apply to the donation received by a descendant from the testator before acquiring the legal status of descendant.
Article 2519. Donations from the common property of spouses
A donation made from the joint property of the spouses is considered to have been given in equal proportion by each of the two spouses. If an property goes to the person who is the descendant of only one of the spouses or if this spouse has to compensate the other spouse for having disposed of the joint property, the property is considered to be donated by that spouse only.
Article 2520. Making the report
(1) When partitioning, the value of the donation that each co-heir must report shall be taken into account in the inheritance share of the respective co-heir. The full value of the donations that must be reported shall be added to the inheritance estate to the extent that the estate belongs to the co-heirs between whom the relationship takes place. The surviving spouse shall not benefit from the relationship.
(2) The value is established in relation to the moment when the donation was made.
Article 2521. Lack of obligation to return the surplus
If the amount received by a co-heirs as a donation exceeds the share that would have been his upon partition, he is not obliged to return the excess amount. In such a case, the estate is divided among the other heirs, and the value of the amount received as a donation by the co-heirs and the inheritance share remain unaffected.
Article 2522. Obligation to inform about
to the goods received
Each co-heir is obliged to provide, upon request, information to the other heirs about the donations received, which they must report according to the provisions of art. 2515-2518.
Article 2523. Report in the case of special payments
of a descendant
(1) A descendant who has contributed through work, considerable sums of money or otherwise to the household, profession or business of the decedent, over a long period of time, to a significant extent for the maintenance and increase of the decedent’s patrimony, may request a division of the ratio between the descendants who inherit with him as legal heirs. The provisions of art. 2517 shall apply accordingly. The same right shall also be enjoyed by a descendant who renounces income from business activity in order to care for the decedent for a longer period.
(2) The report may not be requested if an appropriate remuneration has been granted or agreed for his/her service or to the extent that the descendant, for his/her service, has a right arising from another legal basis. The fact that the services correspond to the legal obligation to maintain the parents or other relatives does not exclude the obligation to report.
(3) The amount of the report shall be calculated fairly, taking into account the duration and volume of the benefits, as well as the value of the estate.
(4) When the division is made, the reported amount is added to the inheritance share of the co-heirs who are entitled to the report. All amounts to be reported, without exception, are deducted from the value of the inheritance mass to the extent that it belongs to the co-heirs between whom the report takes place.
Section 2
Legal relations between co-heirs
and the creditors of the estate
Article 2524. Joint and several liability of co-heirs
The heirs are liable as joint and several debtors for the common obligations of the estate, which include all the obligations of the estate, except for those that encumber only one or some of the inheritance shares.
Article 2525. Liability until the distribution of the estate
successor
(1) Until the division of the estate, each co-heir may refuse to satisfy the obligations of the estate from the property he has outside the share of the estate to which he is entitled. If he bears unlimited liability for an obligation of the estate, the co-heir does not have the right to refuse with regard to the share of the obligation proportional to his share of the estate.
(2) The right of the creditors of the estate to demand satisfaction from all co-heirs from the undivided part of the estate remains unaffected.
Article 2526. Liability after the division of the estate
successor
After the division of the estate, each co-heir is only liable for the part of the obligations of the estate proportional to his share of the estate in the following situations:
a) when the creditor is excluded from the procedure for public summons of creditors of the estate. This rule applies to the creditors mentioned in art. 2428, as well as to the creditors to whom the co-heir is liable without limitation;
b) when the creditor capitalizes his claim after the expiration of a period of 3 years from the date established by the provisions of art. 2429 paragraph. (1), except in the case where the co-heirs learned about the claim before the expiration of the 3-year period or when the claim was declared within the framework of the procedure for public summons of creditors. This rule does not apply to the extent that the creditor, according to the provisions of art. 2426, is not affected by the public summons of creditors;
c) if the insolvency process of the estate was initiated and terminated by the final distribution of the estate or by the confirmation of the restructuring procedure plan.
Article 2527. Summons to declare claims
(1) Each co-heir may publicly request the creditors of the estate to notify the co-heirs or the notary of the claims within 6 months. If the public summons was issued, after the partition, each co-heir shall be liable for the claim only in proportion to his share of the estate, unless the claims were notified before the expiry of the term or if they were known about at the time of the partition.
(2) The summons shall be published in the Official Gazette of the Republic of Moldova and in a local publication selected by the notary. The term shall begin to run from the last publication of the notice. The costs shall be borne by the heir who issued the summons to declare claims.
Article 2528. Request for administration order
the estate
The disposition of the administration of the estate may only be requested by the heirs unanimously. The request for the disposition of the administration of the estate is excluded after the date of the division of the estate.
Article 2529. Drawing up the inventory
(1) The inventory drawn up by a co-heirs also benefits the other co-heirs to the extent that they are not unlimitedly liable for the obligations of the estate.
(2) A co-heir may invoke the limitation of his liability towards the other co-heirs even if he is unlimitedly liable towards the other creditors of the estate.
Title V
INHERITANCE RESERVE
Article 2530. Reserved heirs
(1) The reserved heirs retain the right to inherit, regardless of the content of the will, at least ½ of the inheritance share that would have been due to each of them in the event of legal inheritance (reserve inheritance).
(2) Reserved heirs are the first-class legal heirs, the parents of the deceased, as well as the surviving spouse if, at the date of opening the inheritance, the deceased had a direct maintenance obligation towards the respective heir according to the Family Code.
Article 2531. Determination of the share of the inheritance reserve
for each reserved heir
When determining the inheritance share for each reserved heir, all legal heirs who would have been called to inherit if there had been no will are taken into account. Legal heirs who have renounced the inheritance are not taken into account. Testamentary heirs are not taken into account if they are not legal heirs.
Article 2532. Effects of renunciation of inheritance
of the reserved heir
If the reserved heir renounces his share of the inheritance reserve, the shares of the inheritance reserve of other reserved heirs are not increased. In this case, the reserved heir’s share passes to the testamentary heirs in proportion to their testate inheritance share.
Article 2533. Bequest in favor of the heir
reservist
If the reserved heir is also a legatee, he will only be able to claim the reservation if he renounces the legacy. Otherwise, he loses the right to the inheritance share as a reserved heir in the amount of the legacy.
Article 2534. Separation of the succession reserve from
the untested part of the estate
If the will does not refer to the entire estate, the inheritance reserve first reduces the inheritance shares of the non-reserved legal heirs, and in the event of insufficiency of these shares, the inheritance reserve reduces the inheritance shares of the testamentary heirs.
Article 2535. Relief from legacies and testamentary burdens
Limitations resulting from the designation of a subsequent heir
(1) The reserved heir is not bound by legacies and testamentary burdens to the extent that they infringe his right to the reservation of succession. In this case, the legacies and testamentary burdens shall be borne by the other heirs, in proportion to their inheritance shares.
(2) If the legacy or testamentary charge has been arranged in such a way that it encumbers only the inheritance share of the reserved heir, then the legacy and charge shall be reduced to the extent that they violate his right to inheritance reservation.
(3) If the testator has designated a subsequent heir, the reserved heir is required to fulfill the obligations and comply with the limitations imposed on him as a prior heir to the extent that this does not violate his right to the succession reservation.
Article 2536. Transmission of the inheritance share
of the reserved heir
The reserved heir’s share of the inheritance is transmitted by inheritance and is transmissible according to general rules.
Article 2537. Report of donations to the reserve account
successor
(1) The reserved heir is obliged to admit the ratio of his share of the inheritance to everything that was granted to him as a donation by the testator if the latter provided that the donation be related to his share of the inheritance reserve.
(2) If the reserved heir is a descendant of the deceased, the provisions of art. 2516 paragraph (1) shall apply accordingly.
Article 2538. Reporting obligation
(1) If there are several descendants and between them, in the case of legal inheritance, a donation made by the deceased or benefits of the type provided for in art. 2523 would have been reported, the reserved heir who is a descendant of the deceased is also obliged to report according to the general rules.
(2) A donation of the kind provided for in art. 2523 paragraph (1) cannot be exempted from reporting by the testator to the detriment of a reserved heir.
(3) If the donation that must be taken into account according to paragraph (1) must be reported simultaneously to the inheritance reserve account according to the provisions of art. 2537, then, to the latter account, the respective donation shall be reported only for half of its value.
Article 2539. Support of the succession reserve
in case of renunciation of the legacy
In the event of the reserving heir renouncing the legacy assigned to him by will, in the relations between testamentary heirs and legatees, the inheritance share of the reserving heir first reduces the inheritance share of that testamentary heir or that legatee to whom the renunciation brought benefit.
Article 2540. Limitation of the inheritance reserve with good will
initiate
(1) If the descendant leads such a wasteful lifestyle or has so many debts that what he will subsequently acquire is subject to considerable danger, the testator may limit the descendant’s right to the inheritance reserve by a testamentary disposition stipulating that, after the descendant’s death, his legal heirs shall receive, as subsequent heirs or subsequent legatees, the inheritance share left to him or the inheritance reserve to which he is entitled, in accordance with their inheritance shares in the event of legal inheritance. The testator may also empower the executor of the will to administer the estate during the descendant’s lifetime. In such a case, the descendant shall be entitled to claim the net annual income.
(2) The statutory provisions on disinheritance shall apply to such testamentary dispositions. These provisions shall be ineffective if, after the opening of the inheritance, the descendant no longer leads a wasteful lifestyle or if the excessive indebtedness that served as the basis for such testamentary disposition no longer exists.
Title VI
CONFIRMATION OF RESULTING RIGHTS
FROM INHERITANCE
Chapter I
ISSUANCE OF CERTIFICATES
Article 2541. Opening of succession proceedings
(1) To open the succession procedure, an heir, a creditor of the succession estate, a legatee or a testamentary executor shall submit an appropriate application to the notary.
(2) Within the succession procedure, the notary may be requested, under the law, to issue the following documents:
a) the heir’s certificate;
b) the legatee certificate;
c) the executor certificate;
d) the certificate of custodian of the estate;
e) the certificate of administrator of the estate.
Article 2542. Issuance of the heir certificate
(1) At the request of the heir, the notary conducting the succession procedure is obliged to issue an heir certificate confirming the heir’s right to inheritance, and in the case of several co-heirs, the certificate shall also indicate the size of the inheritance shares of all co-heirs (heir certificate).
(2) The notary conducting the succession procedure is also obliged to issue an heir certificate at the request of one of the other persons provided for in art. 2541 para. (1). In this case, the provisions of art. 2543-2553 shall apply accordingly, taking into account the fact that the applicant is not an heir.
(3) The list of property forming part of the estate shall not be included in the heir’s certificate.
(4) At the express request of all co-heirs, the inheritance certificate shall not indicate the size of the inheritance shares if it follows from the testamentary provisions that the testator has established the size of the inheritance shares by indicating the property he leaves to each co-heir and has not simply assigned the property by way of legacy. If necessary, the inheritance shares may be determined subsequently on the basis of an assessment of the property left to each co-heir.
Article 2543. Content of the request for release
of the legal heir certificate
(1) The application for the issuance of the heir certificate as legal heir must contain:
a) information regarding the deceased: name (maiden name, if applicable), first name, gender, date and place of birth, marital status, citizenship, personal code (if applicable), place of usual residence at the time of death, date and place of death;
b) information regarding the applicant: name (maiden name, if applicable), first name, gender, date and place of birth, marital status, citizenship, personal code (if applicable), address and, if applicable, relationship to the deceased;
c) the relationship on which his right of inheritance is based (kinship, adoption or marriage).
If the applicant is the surviving spouse, he is obliged to declare the absence of the grounds for forfeiture provided for in art. 2187;
d) an indication specifying whether there are or were any persons who could have removed the applicant from the inheritance or reduced his or her share of the inheritance, including the existence of other co-heirs and their identification to the extent known to the applicant;
e) an indication specifying whether or not there are testamentary dispositions of the deceased and which ones; if neither the original nor a copy is attached, indications shall be given regarding the location of the original;
f) a statement attesting, to the knowledge of the applicant, the existence or absence of a judicial process regarding the applicant’s right to inheritance, including regarding the applicant’s unworthiness;
g) an indication specifying whether any of the heirs has made a declaration regarding the acceptance of the inheritance or its renunciation;
h) a declaration by which the applicant accepts the inheritance (if he/she has not previously submitted a declaration of acceptance).
(2) If the person who could have removed the applicant from the inheritance or had the right to reduce his share of the inheritance has forfeited the right to the inheritance, the applicant is obliged to indicate how this occurred.
Article 2544. Declarations made by the heir
testamentary
The person requesting the issuance of the heir certificate based on the testamentary disposition is required to declare:
a) the testamentary disposition on which his right to inheritance is based;
b) whether the testator left other testamentary dispositions and which ones; if neither the original nor a copy is attached, indications shall be given regarding the location of the original;
c) the information provided for in art. 2543 paragraph (1) letters a), b) and f)-h) and paragraph (2).
Article 2545. Confirmation of the veracity of information
PRESS
(1) The applicant must submit official documents to confirm the information communicated by him in accordance with the provisions of art. 2543 para. (1) lett. a) and c) and para. (2) and, in the case of art. 2544, to submit the documents on which his right of inheritance is based. If the documents cannot be obtained or their obtaining is associated with disproportionate difficulties, other evidence will be sufficient.
(2) The applicant shall confirm the other information required under the provisions of Articles 2543 and 2544 to the notary by means of a declaration on his own responsibility, stating that he knows nothing that would contradict his declarations. The notary may exempt him from this obligation if he does not consider it necessary.
(3) The provisions of paragraph (2) shall not apply if the corresponding facts are obvious to the notary.
(4) The application for the issuance of the heir certificate shall contain the information required by law to the extent that the applicant possesses such information and to the extent that this information is necessary for the notary to issue the certificate.
Article 2546. Certificate of heir in case
of co-heirs
(1) If there are several heirs, the same heir certificate shall be issued to each co-heir.
(2) The application for the issuance of the certificate may be submitted by any of the co-heirs. The application must indicate the co-heirs and their inheritance shares.
(3) If the application is not submitted on behalf of all the co-heirs, it must indicate that the other co-heirs have accepted the inheritance. The provisions of art. 2545 also refer to the information that the applicant communicates about the other co-heirs.
(4) Confirmation by affidavit is required from all co-heirs, unless the notary considers the declaration of one or some of them sufficient.
Article 2547. Investigation conducted by the notary
(1) Upon verifying the information communicated by the applicant, the notary conducting the succession procedure is obliged, ex officio, to conduct the appropriate investigations and administer the evidence he deems necessary.
(2) The notary shall take all measures to inform the known heirs and legatees about the initiation of the succession procedure.
(3) If necessary to establish the elements to be certified, the notary may:
a) to hear any person involved and, if any, the executor or administrator of the estate;
b) obtain information from the civil status register and other public registers in the Republic of Moldova;
c) to request information from the advertising registers of other states under the law of the respective state or the international treaty between the Republic of Moldova and the respective state;
d) to require by public notice all persons to declare their rights to the inheritance. The order of public notice and the duration of the term for declaring rights shall be determined in accordance with the procedure for public summons.
(4) The persons provided for in art. 2541 paragraph (1) or other persons who obtain rights from the inheritance have the right to take cognizance of the documents and evidence administered within the succession procedure.
Article 2548. Determination of the right to inheritance
(1) The heir certificate is issued after the notary conducting the succession procedure ascertains with certainty the facts necessary to justify the request for the issuance of the certificate.
(2) The notary shall include in the certificate all co-heirs ascertained with certainty who have accepted the inheritance, even if they were not indicated in the application for the issuance of the certificate.
(3) Until the heir certificate is issued, the notary may issue to the heir who has accepted the inheritance a certificate of heirship for the purpose of legitimizing him in relations with third parties. The certificate of heirship does not produce the effects of the heir certificate. Upon the issuance of the heir certificate, the certificate of heirship shall be revoked by the notary and returned to him. The rules contained in this paragraph shall be mentioned in the certificate of heirship.
Article 2549. Deadline for issuing certificates
(1) The notary shall issue the certificates provided for in art. 2541 paragraph (2) without delay, in accordance with the procedure provided for by law, when the elements to be certified have been established with certainty.
(2) The notary shall not issue the requested certificate as long as the elements to be certified are the subject of a judicial process.
(3) The notary shall take all necessary measures to inform the applicant and the persons whose rights are covered by the certificate regarding the issuance of the certificate.
Article 2550. Certificate of heir limited to certain
goods
(1) If certain property located outside the territory of the Republic of Moldova are part of the inheritance estate, then the request for the issuance of the heir’s certificate may be limited to property located on the territory of the Republic of Moldova.
(2) If the relevant body of the Republic of Moldova keeps a register for the registration of the rights of persons to an property, this property shall be deemed to be located on the territory of the Republic of Moldova. The claim shall be deemed to be located on the territory of the Republic of Moldova if the action for its enforcement falls within the jurisdiction of the courts of the Republic of Moldova.
Article 2551. Contents of the heir certificate
released to the prior heir
(1) The certificate of inheritance issued to the prior heir shall additionally state that the will provides for the subsequent inheritance, the conditions under which the subsequent inheritance will occur and the identity of the subsequent heir. If the testator has designated the subsequent heir with regard to the part of the inheritance remaining at the time of occurrence of the subsequent inheritance, if he has provided that the prior heir may dispose of the inheritance without limitation or if, in accordance with the provisions of art. 2286, the testator has released the prior heir from other restrictions or obligations, these provisions shall also be mentioned.
(2) The subsequent heir has the rights provided for in Articles 2472 and 2558 from the date of occurrence of the subsequent inheritance. From the same date, the subsequent heir may request the issuance of his heir certificate.
(3) The time limits provided for in art. 2472 paragraph (2) and art. 2558 paragraph (5) may not run against the subsequent heir until after the date of occurrence of the subsequent inheritance.
Article 2552. Information regarding the executor of the will
If the testator has appointed an executor, this fact and the limitation of the heir’s right of disposal according to art. 2362 must be expressly indicated in the heir’s certificate.
After the termination of the executor’s duties and the limitations on the heir’s right of disposal, the heir may request the amendment of the heir certificate.
Article 2553. Other restrictions on the rights of the heir
If the testator has established testamentary obligations or valid restrictions on the heir’s rights to the estate, other than those indicated in Articles 2551 and 2552, they shall also be indicated in the certificate of inheritance.
Article 2554. Certificate of legatee
(1) At the request of one of the persons referred to in Article 2541, paragraph (1), the notary conducting the succession procedure is obliged to issue a legatee certificate in respect of a specific legatee.
(2) The legatee certificate shall indicate the identity of the legatee, the list of rights and/or property vested in that legatee and their limits under the law and/or under the testamentary disposition.
Article 2555. Certificate of executor of wills,
custodian or administrator of the mass
successor
(1) The notary conducting the succession procedure is obliged to issue a certificate of executor of the will at the request of the executor of the will.
(2) The executor’s certificate shall indicate the executor’s powers and their limits under the law and/or under the testamentary disposition.
(3) Upon the termination of the executor’s duties, the certificate loses its validity.
(4) The provisions of this article shall apply accordingly to the certificate of the custodian of the estate and the certificate of the administrator of the estate.
Chapter II
COMMON LEGAL REGIME
OF CERTIFICATES
Article 2556. Scope of application
The provisions of this chapter shall apply accordingly to the certificates provided for in art. 2541 paragraph (2).
Article 2557. Effects of the certificate
(1) The certificate shall be presumed to accurately prove the elements set out therein.
(2) It is presumed that the person mentioned in the certificate as heir, legatee, executor of the will, custodian or administrator of the estate has the status mentioned in the certificate and/or is the holder of the rights or powers provided for in the certificate, without other conditions and/or restrictions related to those rights or powers than those provided for in the certificate and resulting from the law.
(3) Any person who, on the basis of the information attested in the certificate, makes payments or transmits goods to a person mentioned in the certificate as a person entitled or empowered to accept payments or goods is deemed to be acting towards a person entitled or empowered to accept payments or goods, unless this person knows that the information contained in the certificate does not correspond to reality or is unaware of this fact due to serious negligence.
(4) If a person mentioned in a certificate as a person entitled or empowered to dispose of the property of the estate disposes of these property in favor of another person, it shall be deemed that the latter, if acting on the basis of the information attested in the certificate, becomes a party to a contract with a person entitled or empowered to dispose of the property in question, unless this person knows that what is contained in the certificate does not correspond to reality or is unaware of this fact due to serious negligence.
(5) The certificate constitutes a valid title for the registration in the appropriate advertising register of the rights attested by it.
Article 2558. Rectification, modification or withdrawal
certificate
(1) At the request of any person who proves that he has a legitimate interest or on his own initiative, the notary who issued the certificate must rectify it in the event of a drafting error.
(2) At the request of a person who proves that he has a legitimate interest or on his own initiative, the notary must modify or withdraw the certificate in the situation where it has been established that the certificate or certain elements in the certificate do not correspond to reality.
(3) The notary must inform without delay all persons to whom the certificate was issued of any rectification, modification or withdrawal thereof.
(4) If an entry has been made in an advertising register on the basis of a certificate which is subsequently rectified, amended or withdrawn and it is presumed that rectification of the entry in the register is possible, the notary shall submit to the register an application for noting the rectification, amendment or withdrawal of the certificate.
(5) The request for rectification, modification or withdrawal of the certificate may be submitted within 3 years from the date on which the person requesting the rectification, modification or withdrawal knew or should have known that the information contained in the certificate did not correspond to reality, but no later than 10 years from the moment of opening the inheritance.
Article 2559. Contesting notary acts
(1) The issuance of the certificate may be contested in court by any of the persons provided for in art. 2541 paragraph (1).
(2) The acts performed by the notary pursuant to art. 2558 and art. 2560 para. (1) letter a) may be challenged in court by any person who proves that he has a legitimate interest.
(3) If, as a result of the appeal referred to in paragraph (1) or (2), it is established that the certificate does not correspond to reality, the competent court shall rectify, modify or withdraw the certificate or ensure the rectification, modification or withdrawal of the certificate by the notary who issued it.
(4) If, as a result of the appeal referred to in paragraph (1) or (2), it is established that the issuance of the certificate was unjustifiably refused, the court shall issue the certificate or ensure that the notary re-examines the case and executes a new act.
Article 2560. Suspension of the effects of the certificate
(1) The effects of the certificate may be suspended by:
a) the notary who issued it, at the request of any person who proves that he has a legitimate interest, during a modification or withdrawal of the certificate pursuant to art. 2558;
b) the court, at the request of any person who has contested a notary’s act pursuant to art. 2559, in the course of such a contestation.
(2) The notary or, as the case may be, the court shall inform without delay all persons to whom the certificates have been issued of any suspension of the effects of the certificate.
(3) During the suspension of the effects of the certificate, no further copies of the certificate may be issued.
Title VII
Sale and purchase
INHERITANCE QUOTAS
Article 2561. Form of the sale-purchase contract
of the inheritance share
(1) The contract by which a co-heir sells the inheritance share returned to him by devolution must be notarized.
(2) The inheritance share may be sold even if administration has been ordered or insolvency proceedings have been initiated regarding the inheritance estate.
(3) The provisions of this title shall apply accordingly when the sole heir sells the right of inheritance in relation to the entire estate.
(4) The Contracting Parties may derogate from the provisions of Articles 2562-2571.
Article 2562. Scope of the object of sale
The advantages obtained as a result of the forfeiture of the right to a legacy or a burden or as a result of a reporting obligation of one of the co-heirs shall revert to the buyer.
Article 2563. The share of the inheritance remaining to the seller
In case of doubt, the share of the inheritance that the seller acquires after the conclusion of the sale-purchase contract, as a result of the occurrence of the subsequent inheritance, the loss of a co-heirs, and the priority legacy that falls to the seller are not considered alienated together with the share of the inheritance sold. This rule also applies to family documents, images and family illustrations.
Article 2564. Obligation to transmit
The seller is obliged to transfer to the buyer the property from the estate existing at the time of sale, including everything he acquired before the sale based on a right that is part of the estate or as compensation for the destruction, damage or withdrawal of an property from the estate or based on a juridical act that referred to the estate.
Article 2565. Obligation to pay the value
(1) If the seller has consumed the property from the estate, alienated it free of charge or encumbered it free of charge before the sale, he is obliged to pay the buyer the value of the consumed or alienated property, and in the case of encumberment, to compensate for the decrease in its value. The obligation to pay the value does not arise if, at the conclusion of the sale-purchase contract, the buyer knew that the object was consumed or that the alienation was free of charge.
(2) In other cases, the buyer may not claim compensation as a result of the loss, damage or inability to transfer the property from the estate for other reasons.
Article 2566. Limited liability of the seller
(1) The seller’s obligation to guarantee legal defects is limited to the liability for the fact that he has the right of inheritance over the sold inheritance share, that this right is not limited by the right of the subsequent heir or as a result of the appointment of the executor of the will, that there are no legacies, charges or limits imposed by the inheritance reserve, reporting obligations or testamentary provisions regarding the division, as well as for the fact that unlimited liability towards the creditors of the inheritance estate or some of them has not arisen.
(2) The seller is not liable for material defects of the goods that are part of the estate, except in the case where he intentionally concealed a defect or assumed the guarantee of certain characteristics of the goods.
Article 2567. Restoration of legal relations
Legal relationships that have been extinguished as a result of the opening of the inheritance by the merging of the capacity of creditor and debtor or the merging of the right and the encumbrance by the same person are considered, between the seller and the buyer, to be unextinguished. In case of necessity, the legal relationships may be re-established.
Article 2568. Buyer’s liability for
obligations of the estate
(1) The buyer is liable to the seller for the performance of the obligations of the estate, except in the case where the seller, in accordance with the provisions of art. 2566, has guaranteed that such obligations do not exist.
(2) If the seller has fulfilled the obligations of the estate before the sale, he may request reimbursement of the expenses from the buyer.
Article 2569. Revenues. Duties
(1) The seller is entitled to the income that arose before the sale. During this period, he is responsible for the obligations of the estate, including interest.
(2) However, the buyer is obliged to bear the expenses that must be covered from the estate, as well as all extraordinary expenses that must be considered as taken into account when determining the initial price of the property in the estate.
Article 2570. Transfer of risk
From the moment the sale-purchase contract is concluded, the risk of accidental loss or damage to the property in the estate passes to the buyer. From this moment on, both the fruits and the expenses are his.
Article 2571. Reimbursement of expenses
(1) The buyer is obliged to reimburse the seller for the necessary expenses incurred by the seller in relation to the estate until the sale of the share in the estate.
(2) The buyer is obliged to reimburse other expenses incurred prior to the sale only to the extent that they increased the value of the estate at the time of sale.
Article 2572. Buyer’s liability to
by the creditors of the estate
(1) The buyer is liable, from the moment of the conclusion of the sale-purchase contract, to the creditors of the estate, which does not extinguish the seller’s liability. This rule also applies to the obligations that the buyer is not obliged to perform towards the seller according to the provisions of art. 2568 and 2569.
(2) The clause agreed between the seller and the buyer which excludes or limits the buyer’s liability towards the creditors of the estate is null and void.
Article 2573. Limited liability of the buyer
(1) The buyer’s liability shall be subject to the rules on the limitation of the heir’s liability. The buyer shall be liable without limitation if the seller was liable without limitation at the time of the sale. If the buyer’s liability is limited to the estate, his claims arising from the purchase shall be deemed to be part of the estate.
(2) The preparation of the inventory of the estate by the seller or buyer also benefits the other party, except in the case where the other party is liable without limitation.
Article 2574. The seller’s obligation to communicate
information to creditors of the estate
successor
(1) The seller is obliged to the creditors of the estate to notify the notary conducting the succession procedure without delay of the fact of the sale of the share in the succession and to indicate the name of the buyer. The notification of the buyer replaces the notification of the seller.
(2) The notary is obliged to allow any person who demonstrates a legitimate interest to take notice of the notification.
Article 2575. Application to similar contracts
(1) The provisions regarding the sale-purchase of the inheritance share shall apply accordingly to the subsequent sale of the inheritance share by the initial buyer, as well as to other contracts regarding the alienation of the inheritance share that was opened for the alienator or was acquired by him in another way.
(2) If the inheritance share is the object of the donation, the donor is not obliged to pay the value of the property from the inheritance that were consumed or alienated free of charge until the time of the donation or to compensate the donee for the encumbrances established free of charge until the time of the donation. The donor is not obliged to the obligation provided for in art. 2566 regarding the removal of possible limitations of the right. If the donor intentionally concealed the limitations, he is obliged to repair the damage caused to the donee thereby.
BOOK FIVE PRIVATE INTERNATIONAL LAW
Title I
GENERAL PROVISIONS REGARDING
IN PRIVATE INTERNATIONAL LAW
Article 2576. Determination of the law applicable to the relations
private law with an element of foreignness
(1) The law applicable to private law relations with an element of foreignness is determined on the basis of international treaties to which the Republic of Moldova is a party, this book, the laws of the Republic of Moldova and international customs recognized in the Republic of Moldova.
(2) In the event of impossibility of determining the applicable law according to paragraph (1), the law of the state with which the private law relationship with an element of foreignness has the closest connection shall apply.
(3) The law determined in accordance with paragraph (1) shall not apply exceptionally if, in all the circumstances, the relationship is distantly connected with that law and is more closely connected with another law. This provision shall not apply where the parties have chosen the applicable law, as well as in the case of the law concerning the civil status and capacity of the person.
Article 2577. Qualification of legal concepts
in determining the applicable law
(1) When determining the law applicable to private law relations with a foreign element, the qualification of legal notions carried out according to the law of the Republic of Moldova shall be taken into account, unless the law or international treaties to which the Republic of Moldova is a party provide otherwise.
(2) If the legal concepts requiring legal qualification are not known to the law of the Republic of Moldova or are known under another name or with a different content and cannot be determined by interpretation according to the law of the Republic of Moldova, the legal qualification made according to foreign law may be taken into account if this does not limit civil rights or if measures of civil liability are not established.
(3) However, when the parties themselves have determined the meaning of the concepts in a juridical act, the qualification of these concepts is made according to the will of the parties.
Article 2578. Application of state law
with a plurality of legal systems
Where reference is made to the law of a State in which a plurality of legal systems coexist, without indicating which of them is applicable, the legal system determined in accordance with the rules of law of that State shall apply. In the absence of such rules, the legal system with which the report has the closest links shall apply.
Article 2579. Determining the content of foreign law
(1) The content of foreign law shall be determined in accordance with its official interpretation and the practice of its application in the respective foreign state.
(2) For the purpose of establishing the content of the norms of foreign law, the court may address, in the established order for assistance and clarification, the Ministry of Justice of the Republic of Moldova, other competent bodies or organizations in the Republic of Moldova and abroad, may request the opinion of an expert or may use another appropriate method.
(3) The persons participating in the trial may present documents confirming the content of the rules of foreign law invoked to substantiate the claims or defense or may otherwise assist the court in determining the content of these rules.
(4) In the case of private law relationships in which businesss participate, the obligation to provide information regarding the content of the foreign law may be imposed on the business by the court.
(5) In the event of impossibility of establishing, within a reasonable time, the content of the foreign law, although the necessary measures have been taken in accordance with the provisions of this article, the law of the Republic of Moldova shall apply.
Article 2580. Reciprocity
(1) Foreign law shall apply in the Republic of Moldova regardless of whether the law of the Republic of Moldova applies to relations of the same type in the respective foreign state, except in cases where the application of foreign law depends, according to the law of the Republic of Moldova, on the condition of reciprocity.
(2) If the application of foreign law is conditional on reciprocity, the fulfillment of the condition of reciprocity in fact is presumed until proven otherwise, which is established by the Ministry of Justice, in consultation with the Ministry of Foreign Affairs and European Integration.
Article 2581. Public order of the Republic of Moldova
(1) The application of foreign law shall be waived if it manifestly violates the public order of the Republic of Moldova. In the event of the application of foreign law being waived, the law of the Republic of Moldova shall apply.
(2) The application of foreign law manifestly violates the public order of the Republic of Moldova to the extent that it would lead to a result manifestly incompatible with the fundamental principles of the law of the Republic of Moldova or with the fundamental rights and freedoms of man.
Article 2582. Rules of immediate application
(1) The rules of immediate application are those rules whose observance is regarded by a given state as essential for the safeguarding of its public interests, such as political, social or economic organization, to such an extent that these rules correspond to any situation falling within their scope, regardless of the law applicable to the legal relationship under this book.
(2) The provisions of this book do not restrict the application of the immediately applicable norms of the law of the Republic of Moldova.
(3) The rules of immediate application contained in the law of another state may be applied to regulate a legal relationship with an element of foreignness if the legal relationship has close links with the law of that state and the legitimate interests of the parties require it.
(4) When taking a decision on the implementation of the rules with immediate application according to paragraph (3), their nature and object, as well as the consequences of their application or non-application, shall be taken into account.
Article 2583. Reference to foreign law
(1) When, in accordance with the provisions of this book, reference is made to foreign law, the substantive rules, not the conflict rules of that law, shall apply.
(2) By way of exception to the provisions of paragraph (1), foreign law also includes the conflicting norms of that law if it refers to the law of the Republic of Moldova in matters of the status of the natural person.
Article 2584. Retaliation
The Government of the Republic of Moldova may establish counter-restrictions (retaliation) regarding the patrimonial and personal non-patrimonial rights of citizens and legal persons of those states in which there are special restrictions on the patrimonial and personal non-patrimonial rights of citizens and legal persons of the Republic of Moldova.
Article 2585. Respect for acquired rights
in another state
Rights acquired in another state are respected in the Republic of Moldova if they do not clearly contradict the public order of the Republic of Moldova.
Title II
CONFLICTUAL NORMS
Chapter I
STATUS OF THE NATURAL PERSON
Article 2586. National law of the natural person
(1) The national law of the citizen is the law of the state whose citizenship the natural person holds.
(2) Where a person has two or more nationalities, the national law shall be the law of the State with which the person has the closest links, in particular through his habitual residence or the place where he carries out his main activity.
(3) The national law of a citizen of the Republic of Moldova who, according to foreign law, is considered to have another citizenship is the law of the Republic of Moldova.
(4) The national law of the stateless person is the law of the state in which the stateless person has his habitual residence, and in the absence thereof, his temporary residence.
(5) The national law of the refugee shall be considered the law of the state granting him asylum, unless otherwise provided by the law of the Republic of Moldova or by international treaties to which the Republic of Moldova is a party.
(6) The determination and proof of citizenship shall be made in accordance with the law of the state whose citizenship is invoked.
(7) For the purposes of this book, the habitual residence of a natural person acting in the exercise of his business activity is the place where this person was registered as a business.
Article 2587. Capacity of use of a natural person
(1) The capacity of a natural person to use is governed by his national law.
(2) Foreign citizens and stateless persons have the same capacity to use the Republic of Moldova as citizens of the Republic of Moldova, except for cases provided for by the Constitution, other laws of the Republic of Moldova or international treaties to which the Republic of Moldova is a party.
Article 2588. Capacity to exercise legal capacity of a natural person
(1) The legal capacity of a natural person is governed by his national law.
(2) A person who does not have full capacity to exercise juridical acts under his national law is not entitled to invoke this circumstance if he has capacity to exercise juridical acts under the law of the Republic of Moldova when this is the law of the place of conclusion of the juridical act, except in cases where it is proven that the other party to the juridical act knew or should have known about the lack of capacity to exercise juridical acts in question.
(3) The capacity of foreign citizens and stateless persons to exercise juridical acts concluded on the territory of the Republic of Moldova and obligations arising from the causing of damage that arose on the territory of the Republic of Moldova shall be established in accordance with the law of the Republic of Moldova.
(4) A person’s affiliation to a new national law does not affect the age of majority acquired and recognized under the previously applicable law.
Article 2589. Name
(1) A person’s name, its use and protection are governed by his national law unless otherwise provided by this Code or other laws.
(2) Protection against actions that violate the right to a name, committed on the territory of the Republic of Moldova, is ensured in accordance with its legislation.
Article 2590. Law applicable to the protection of individuals
adults
(1) Protection measures regarding an adult natural person or one who has acquired full legal capacity in another legal way are subject to the law of the state where the person has his or her habitual residence on the date of the establishment of the protection measure.
(2) Exceptionally, to the extent necessary for the protection of the individual, the competent authority may apply or take into account the law of another state, with which the legal situation has the closest connections.
(3) The existence, extent, modification and termination of powers of representation entrusted by a person with full capacity to exercise them, either by contract or by unilateral act, for the situation in which he will not be able to take care of his interests, are subject to the law of the state where he has his habitual residence at the date of conclusion of the contract or unilateral act. However, he may choose one of the following laws:
a) national law;
b) the law of a previous habitual residence;
c) the law of the state where the property are located, with regard to protective measures regarding the property.
(4) The measures taken with regard to the protected person or his or her property are subject to the law of the state whose authorities guide and supervise the exercise of protection by those entitled to it.
(5) The lack of the capacity of representative or other person entrusted with protection, a capacity established according to the law applicable to the protection of the natural person, cannot be opposed to a third party who in good faith relied on this capacity, according to the law of the place where the act was drawn up, if the act was concluded between the parties present and on the territory of the same state.
Article 2591. Declaring missing or missing
of death
The declaration of disappearance, the declaration of death, the ascertainment of death, as well as the presumptions of life or death of a natural person are governed by the last national law of this person. If it is impossible to determine this law, the law of the Republic of Moldova shall apply.
Article 2592. Registration of civil status documents abroad
civil status of citizens of the Republic of Moldova
The registration of civil status documents of citizens of the Republic of Moldova residing outside its territory is carried out by the consular offices of the Republic of Moldova, and in their absence, by the embassies.
Article 2593. Law applicable to entrepreneurial activity
or business of the individual
The right of a natural person to carry on a business or business activity without forming a legal person shall be determined in accordance with the law of the state in which that natural person obtained the authorization to carry on a business or business activity. If this provision does not apply due to the lack of an obligation to obtain authorization, the law of the state of the main place of carrying on the business or business activity shall apply.
Chapter II
LEGAL PERSON STATUS
Article 2594. National law of legal person
(1) The national law of the legal person is the law of the state on whose territory the legal person is incorporated.
(2) The national law of the legal person shall determine, in particular:
a) the status of the organization as a legal person;
b) legal form of organization;
c) the requirements regarding its name;
d) issues regarding the establishment, restructuring, dissolution and liquidation of the legal person, including succession issues;
e) the content of the usable capacity;
f) the manner of acquiring civil rights and assuming civil obligations;
g) internal relations, including relations between the legal person and the members of its bodies, as well as the relations of the legal person with its members;
h) issues of liability of the founders (members) of the legal person for its obligations.
(3) The legal person may not invoke the limitation of the powers of its body or representative to conclude a juridical act unknown to the law of the state in which the body or representative of the legal person drew up the juridical act, except in cases where it is established that the other party to the juridical act knew or should have known about the limitation.
(4) If a legal person established abroad carries out its entrepreneurial activity predominantly in the Republic of Moldova, the law of the Republic of Moldova or, at the request of the creditor, the national law of this legal person shall apply to the liability claims for the obligations of the legal person of its founders (members) or other persons who have the right to give binding instructions for the legal person or have the possibility to determine its actions in another way.
Article 2595. Law applicable to branches
(representative offices) and subsidiaries
legal person
(1) Legal status of branches (representative offices) of a legal person in the territory of another
The state is governed by the national law of the legal person.
(2) The legal status of the branch of a legal person on the territory of another state is governed by the law of the state on whose territory the branch was established, independently of the national law of the legal person.
Article 2596. National activity regime
of foreign legal persons
in the Republic of Moldova
The foreign legal person carries out commercial and other activities regulated by civil legislation in the Republic of Moldova in accordance with the provisions established by this legislation for a similar activity of legal persons of the Republic of Moldova, unless the law of the Republic of Moldova provides otherwise for foreign legal persons.
Article 2597. National Law of Foreign Organizations
which, according to foreign law, are not
legal persons
The national law of a foreign organization that, according to foreign law, is not a legal person is the law of the state where it is established. The activities of such organizations, if the law of the Republic of Moldova is applicable, shall be subject to the provisions of this Code or other laws regulating the activities of legal persons, unless otherwise required by law, regulatory acts or the essence of the relationship.
Article 2598. Participation of the state or other persons
public law legal relations
private law with an element of foreignness
The provisions of this book apply on a general basis to private law relationships with an element of foreignness with the participation of the state or other legal persons under public law, unless the law provides otherwise.
Chapter III
REAL RIGHTS AND RIGHTS
NON-PROFIT PERSONAL
Article 2599. General provisions regarding
to real rights
(1) The content of possession, ownership and other real rights over movable and immovable property, their realization and protection shall be determined according to the law of the state on whose territory the property is located, unless otherwise provided.
(2) The belonging of the property to the category of movable or immovable property, as well as any other legal qualification of the property, shall be determined according to the law of the state on whose territory the property is located.
Article 2600. Acquisition and Extinction of Real Rights
(1) The acquisition and extinction of the right of ownership and other real rights over the property shall be determined according to the law of the state on whose territory the property was or was located at the time when the action or other circumstance that served as the basis for the emergence or extinction of the right of ownership or other real rights occurred, unless the legislation of the Republic of Moldova provides otherwise.
(2) The acquisition and extinction of the right of ownership and other real rights over the property that is the subject of the juridical act shall be determined according to the law applicable to the juridical act unless the agreement of the parties provides otherwise.
(3) The acquisition of ownership and other real rights over the property through usucaption shall be determined according to the law of the state in which this property is located at the time of the expiration of the usucaption term.
Article 2601. Law applicable to usucaption of movable property
(1) Usucaption is governed by the law of the state where the property was located at the beginning of the possession period provided for this purpose.
(2) If the property has been brought to another state, where the term of usucaption has expired, the possessor may request that the law of the latter state be applied if all the conditions required by the said law are met, starting from the date of the property’s movement to that state.
Article 2602. Law applicable to the claim of property
mobile
(1) The claim for stolen or illegally exported property shall be subject, at the option of the original owner, either to the law of the state in whose territory the property was located at the time of the theft or export, or to the law of the state in whose territory the property is located at the time of the claim.
(2) However, if the law of the State in whose territory the property was located at the time of theft or export does not contain provisions regarding the protection of the third party possessor in good faith, he may invoke the protection granted to him by the law of the State in whose territory the property was located at the time of the claim.
(3) The provisions of paragraphs (1) and (2) are also applicable to stolen or illegally exported goods from the national cultural heritage of a state.
Article 2603. Real rights over means
transportation
(1) The establishment, transmission and extinction of real rights over means of transport are governed by:
a) the law of the flag of the ship or the law of the State of registration of the aircraft;
b) the law applicable to the legal status of the transport undertaking for the railway vehicles and motor vehicles belonging to it.
(2) The provisions of paragraph (1) shall also apply to:
a) the goods on board which form the technical equipment;
b) claims relating to the expenses of technical assistance, maintenance, repair or renovation of the means of transport.
(3) The law of the flag of the ship or the State of registration of the aircraft governs in particular:
a) the powers, competences and obligations of the master of the ship or aircraft;
b) the employment contract of the flight crew, unless the parties have chosen another law;
c) the liability of the shipowner or air transport company for the acts and actions of the master and the crew;
d) real and security rights over the ship or aircraft, as well as the publicity formalities regarding the acts by which such rights are established, transferred and extinguished.
Article 2604. Real rights over property subject to
state registration
The right of ownership and other real rights to property subject to state registration shall be determined in accordance with the law of the state on whose territory the rights to such property are entered in the state register.
Article 2605. Reservation of ownership rights
The conditions and effects arising from the reservation of ownership rights relating to goods intended for export are governed, unless the parties have agreed otherwise, by the law of the exporting state.
Article 2606. Real rights over movable property
in transit
The emergence and extinction of ownership and other real rights based on the juridical act regarding movable goods in transit shall be determined according to the law of the state from which these goods were shipped, except in cases where:
a) the parties have agreed otherwise;
b) the property is stored in a warehouse or seized under precautionary measures or as a result of a forced sale, in these cases the law of the place where it was temporarily relocated shall apply during the storage or seizure period;
c) the goods are the passenger’s personal property, in which case they are subject to his national law.
Article 2607. Securities
(1) The issuance of securities is subject to the law applicable to the legal status of the issuing legal person.
(2) The conditions and effects of the transmission of securities in material form are subject to:
a) the law of the place of payment of the promissory note;
b) the law of the place where the title is held by the bearer at the time of transmission;
c) the law applicable to the legal status of the legal person issuing the nominative title.
(3) Securities in book-entry form are governed by the law of the country in which the register or account in which the securities entries are made is located.
(4) The law governing book-entry securities determines:
a) the legal nature of the security;
b) the content, establishment and termination of real rights regarding the movable property;
c) the consequences of the alienation of the security on the rights arising from the security;
d) the conditions for exercising the rights arising from the security;
e) the rank of the rights encumbering the movable value;
f) the rights and obligations of the custodian with respect to securities held by a custodian.
(5) Financial collateral constituted in the form of financial instruments in book-entry form shall be governed by the law of the country in which the register or account in which the securities entries are made is located, with regard to:
a) the legal nature and patrimonial effects of the financial guarantee established in the form of financial instruments in the form of book entry;
b) the conditions that must be met for the valid conclusion of a financial collateral agreement having as its object financial instruments in book-entry form and for the making available of such financial instruments under such an agreement, the formalities necessary to ensure the enforceability against third parties of such an agreement and of the making available of such collateral;
c) whether a property right or other right of a person with respect to the financial collateral constituted in the form of financial instruments in the form of entry in the account is priority or subordinate to a property right or other competing right and whether the acquisition was made in good faith;
d) the formalities required for the performance of the financial guarantee established in the form of financial instruments in the form of an entry in the account, following the occurrence of a cause that determines the performance of the guarantee.
(6) The provisions of paragraphs (1)-(5) shall apply, to the extent that they do not contravene Law no. 184/2016 on financial guarantee contracts, if the financial guarantee contracts were concluded between the subjects established in art. 3 of the said law.
Article 2608. Law applicable to representative title
of the goods
(1) The law expressly mentioned in the content of a security determines whether it meets the conditions to be a security representative of the goods it specifies. In the absence of such specification, the nature of the security shall be determined according to the law of the state in which the issuing company has its registered office.
(2) If the title represents the goods, the law applicable to it, in its capacity as movable property, according to paragraph (1), governs the real rights relating to the goods it specifies.
Article 2609. Law applicable to the object of property
intellectual
(1) The acquisition, content and extinction of copyright in a creative work are governed by the law of the state on whose territory this work was first made known to the public by exhibition, dissemination, publication, performance or in any other way.
(2) Copyright in a creative work that has not been made public is governed by the national law of the author.
(3) The acquisition, content and extinction of industrial property rights are governed by the law of the state where the deposit or registration was made or where the application for deposit or registration was filed.
(4) The request for material or moral damages is governed by the law of the state on whose territory the copyright or intellectual property right was infringed.
(5) Foreign citizens and stateless persons shall be granted, on the territory of the Republic of Moldova, national treatment with regard to copyright and intellectual property rights.
Article 2610. Advertising formalities
(1) Any advertising formality relating to goods shall be governed by the law applicable at the time and place where it is performed.
(2) The publicity formalities indicated in paragraph (1), which have the effect of establishing rights relating to immovable property, are governed by the law of the state on whose territory the property is located, even if the legal basis for the acquisition, transmission or extinction of the real right or real security was established by the application of another law.
Article 2611. Application of the law in the case of pledge on
movable property
(1) The conditions of validity, publicity and effects of a pledge on movable property, with the exception of pawning, are subject to the law of the place where the property is located on the date of completion of the formalities for publicity of the pledge.
(2) By way of derogation from the provisions of paragraph (1), the law of the place where the pledgor is located shall apply in the case of:
a) a tangible movable property which, according to its destination, is used in several states, unless otherwise provided by special provisions;
b) an intangible movable property. However, in the case of the right regarding funds in a bank account or other type, the law of the state in which the bank or other payment service provider maintaining the account is headquartered shall apply;
c) a negotiable security not in the possession of the pledgee. However, in the case of shares, corporate shares and bonds, the national law of the issuer shall apply, except where such securities are traded on an organised market, in which case the law of the State in which the relevant market operates shall apply.
(3) The pledgor shall be deemed to be located in the state in which he has his habitual residence or, as the case may be, his registered office on the date of completion of the formalities for advertising the pledge on the movable property.
Article 2612. Special situations regarding the determination
the law applicable to the advertising of the pledge on
movable property
(1) A pledge on movable property registered according to the law of the place where the property is located retains its priority rank in another state if the publicity formalities provided for by the law of that state have also been fulfilled:
a) before the priority rank acquired according to the law applicable on the date of the pledge ceases;
b) within a maximum of 60 days from the date on which the property entered the respective state or within a maximum of 15 days from the date on which the pledgee became aware of this fact.
(2) The provisions of paragraph (1) shall also apply accordingly if the pledge has been registered in accordance with the law of the place where the pledgor is located. The periods provided for in paragraph (1) letter b) shall be calculated, as the case may be, from the date on which the pledgor establishes his habitual residence or, as the case may be, his registered office in the respective state or from the date on which the pledgor became aware of this fact.
(3) However, the pledge on the movable property shall not be enforceable against a third party who acquired a right over the property for consideration without having known of the existence of the pledge on the movable property and before it became enforceable in accordance with the provisions of paragraphs (1) and (2).
Article 2613. Lack of advertising abroad
(1) If the foreign law regulating the rank of the pledge on the movable property does not provide for publicity formalities and the property is not in the possession of the pledgee, the pledge on the movable property has a lower rank:
a) pledge on a claim consisting of a sum of money payable in the Republic of Moldova;
b) a pledge on a tangible movable property that was created when the property was in the Republic of Moldova or on a negotiable instrument.
(2) However, the pledge on the movable property retains its priority rank if it is registered, according to the law of the Republic of Moldova, before the creation of the pledge referred to in paragraph (1) letter a) or b).
Chapter IV
JURIDICAL ACT
Article 2614. Law applicable to formal requirements
of the juridical act
(1) The formal requirements of a juridical act shall be determined by the law of the State which governs the substance of the juridical act. However, a juridical act shall be considered valid from the point of view of form if it meets one of the following conditions:
a) the law of the place where it was drawn up is respected;
b) the national law or the law of the habitual residence of the person who drew it up is respected;
c) is valid under the applicable law according to the private international law of the authority examining the validity of the juridical act.
Article 2615. Law applicable to substantive conditions
(1) The substantive conditions of the juridical act are established by the law chosen by the parties or, as the case may be, by its author.
(2) The choice of law applicable to the juridical act must be express or result undoubtedly from its content or from the circumstances.
(3) The parties may choose the law applicable to the whole or only to a specific part of the juridical act.
(4) The agreement on the choice of applicable law may be amended after the conclusion of the juridical act. The amendment shall have retroactive effect, but may not:
a) to invalidate the validity of its form; or
b) to infringe the rights acquired in the meantime by third parties.
Article 2616. Law applicable in the absence of choice
(1) In the absence of choice, the law of the state with which the juridical act has the closest connections shall apply, and if this law cannot be identified, the law of the place where the juridical act was concluded shall apply.
(2) Such connections shall be deemed to exist with the law of the state in which the debtor of the characteristic performance or, as the case may be, the author of the act has, on the date of conclusion of the juridical act, his habitual residence or, as the case may be, his registered office.
(3) The accessory juridical act is governed by the law of the state that governs the substance of the main juridical act, unless the agreement of the parties provides otherwise.
Chapter V
CONTRACTUAL OBLIGATIONS
Article 2617. Freedom of choice
(1) The contract is governed by the law chosen by consensus of the parties.
(2) The parties to the contract may determine the law applicable to both the entire contract and certain parts thereof.
(3) The determination of the applicable law must be express or result, with a reasonable degree of certainty, from the content of the contract or from other circumstances.
(4) The applicable law may be determined by the parties to the contract at any time, both at the time of its conclusion and at any time thereafter. The parties to the contract are entitled to agree at any time on the modification of the applicable law.
(5) The determination, after the conclusion of the contract, of the applicable law does not affect the validity of the form of the contract or the rights acquired by third parties.
(6) If the contract uses commercial terms accepted in the international circuit, it is considered, in the absence of other indications in the contract, that the parties have established the use in their regard of the customs and usages of the business circuit corresponding to the respective commercial terms.
(7) If all the elements relevant to the situation in question, at the time the choice is made, are located in a state other than the one whose law was chosen, the choice made by the parties shall not prejudice the application of the provisions of the law of that other state from which no derogation can be made by agreement.
(8) The existence and validity of the consent of the parties regarding the choice of applicable law shall be determined in accordance with the provisions of Articles 2623, 2624 and 2626.
(9) The law of a state other than the state whose law, according to the provisions of Chapter III of this title, is applicable to real rights over the object of the contract, may also be chosen as the law governing the contract.
Article 2618. Law applicable in the absence of choice
(1) To the extent that the law applicable to the contract has not been chosen in accordance with art. 2617, without prejudice to art. 2619-2622, the law applicable to the contract shall be determined as follows:
a) the contract for the sale and purchase of goods is governed by the law of the state in which the seller has his habitual residence;
b) the service contract is governed by the law of the state in which the service provider has his habitual residence;
c) the contract regarding a real estate right or regarding the lease right over a property is governed by the law of the state in which the property is located;
d) without prejudice to the provisions of letter c), the lease contract having as its object the private and temporary use of a property for a period of maximum 6 consecutive months is governed by the law of the state in which the owner has his habitual residence, provided that the tenant is a natural person and has his habitual residence in the same state;
e) the franchise contract is governed by the law of the state in which the franchisee has his habitual residence;
f) the distribution contract is governed by the law of the state in which the distributor has his habitual residence;
g) the contract for the sale and purchase of goods at auction is governed by the law of the state in which the auction takes place if this place can be determined;
h) any contract concluded within a multilateral system, which brings together or facilitates the bringing together of multiple interests in the sale and purchase of financial instruments of third parties, as defined by Law No. 171/2012 on the capital market, in accordance with non-discretionary rules, and which is regulated by a single law, is regulated by that law.
(2) If the provisions of paragraph (1) do not apply to the contract or if more than one of the provisions of letters a)-h) of paragraph (1) would apply to the elements of the contract, the contract shall be governed by the law of the state in which the contracting party who performs the characteristic performance has his habitual residence.
(3) If it is clear from all the circumstances of the case that the contract in question clearly has a closer connection with a state other than the one mentioned in paragraph
(1) or (2), the law of that other state shall apply.
(4) If the applicable law cannot be determined pursuant to paragraph (1) or (2), the contract shall be governed by the law of the state with which it has the closest connections.
Article 2619. Transport contracts
(1) Insofar as the law applicable to the contract of carriage of goods has not been chosen by the parties in accordance with Article 2617, the applicable law shall be the law of the State in which the carrier has his habitual residence, provided that the place of loading or delivery or the habitual residence of the consignor is also situated in that State. If these requirements are not met, the law of the State in which the place of delivery agreed upon by the parties is situated shall apply.
(2) To the extent that the law applicable to the contract of carriage of passengers has not been chosen by the parties in accordance with paragraph (1), the applicable law shall be the law of the State in which the passenger has his habitual residence, provided that the place of departure or arrival is also situated in that State. If these requirements are not met, the law of the State in which the carrier has his habitual residence shall apply.
(3) The parties may choose as the law applicable to the passenger transport contract in accordance with art. 2617 only the law of the state in which:
a) the passenger’s usual residence is located;
b) the carrier’s habitual residence is located;
c) the headquarters of the carrier’s central administration are located;
d) the place of departure is located; or
e) the place of arrival is located.
(4) If, in the absence of a choice of applicable law, it is clear from all the circumstances of the case that the contract is clearly more closely connected with a state other than that referred to in paragraph (1) or (2), the law of that other state shall apply.
Article 2620. Contracts concluded with consumers
(1) Without prejudice to Articles 2619 and 2621, a contract concluded by a consumer with a business shall be governed by the law of the State in which the consumer has his habitual residence, provided that the business:
a) to carry out his commercial or business activity in the state where the consumer has his habitual residence; or
b) by any means, to direct its activities towards the State in question or towards several States, including the State in question, and the respective contract falls within the scope of those activities.
(2) Without prejudice to paragraph (1), the parties may choose the law applicable to a contract which meets the requirements laid down in paragraph (1) in accordance with Article 2617. However, such a choice may not deprive the consumer of the protection granted to him by provisions which cannot be derogated from by convention, under the law which, in the absence of a choice, would have been applicable in accordance with paragraph (1).
(3) If the conditions provided for in paragraph (1) letter a) or b) are not met, the law applicable to a contract concluded between a consumer and a business shall be determined in accordance with articles 2617 and 2618.
(4) The provisions of paragraphs (1) and (2) shall not apply:
a) service contracts under which the services are provided to the consumer exclusively in a state other than the one in which he has his habitual residence;
b) transport contracts, other than contracts regarding package travel services within the meaning of art. 1592;
c) contracts concerning a real right in immovable property or concerning the right to lease an immovable property, other than contracts concerning certain holiday products within the meaning of art. 1618 and 1619;
d) the rights and obligations constituting a financial instrument and the rights and obligations constituting the terms and conditions governing the issue or public offer and takeover bids of securities, as well as those governing the subscription and redemption of units of collective investment undertakings, provided that these activities do not constitute the provision of financial services;
e) contracts concluded within a system falling within the scope of art. 2618 paragraph (1) letter h).
Article 2621. Insurance contracts
(1) This Article shall apply to the contracts referred to in paragraph (2), whether or not the insured risk is situated in a State, and to all other insurance contracts covering risks situated in the territory of other States. This Article shall not apply to reinsurance contracts.
(2) Insurance contracts covering major risks within the meaning of the legislation on insurance are governed by the law chosen by the parties in accordance with art. 2617.
(3) Insofar as the applicable law has not been chosen by the parties, insurance contracts shall be governed by the law of the State in which the insurer has his habitual residence. Where it is clear from all the circumstances of the case that the contract is clearly more closely connected with another State, the law of that other State shall apply.
(4) In the case of an insurance contract, other than those to which paragraphs (2) or (3) apply, the parties may choose, in accordance with art. 2617, only one of the following laws:
a) the law of any state in which the risk is situated at the time of conclusion of the contract;
b) the law of the state in which the insurance policy holder has his/her habitual residence;
c) in the case of life insurance, the law of the state whose citizen is the holder of the insurance policy;
d) in the case of insurance contracts covering risks limited to events occurring in a state other than the one in which the risk is situated, the law of that other state;
e) where the policyholder of a contract to which this paragraph applies carries on a commercial or industrial activity or a liberal profession, and the insurance contract covers two or more risks related to those activities and which are situated in different States, the law of any of the States concerned or the law of the State in which the policyholder has his habitual residence.
(5) Where, in the cases referred to in paragraph (4) letters a), b) or e), the said State grants greater freedom with regard to the choice of law applicable to insurance contracts, the parties may avail themselves of this freedom.
(6) To the extent that the applicable law has not been chosen by the parties in accordance with paragraph (4) or (5), such contracts shall be governed by the law of the state in which the risk is situated at the time of the conclusion of the contract.
(7) The following additional rules shall apply to insurance contracts covering risks for which a state imposes compulsory insurance:
a) the insurance contract shall not fulfil the insurance obligation unless it complies with the specific provisions laid down in relation to the insurance in question by the State imposing the obligation. If the law of the State in which the risk is situated contains provisions contrary to those of the law of the State imposing the obligation to take out insurance, the latter shall prevail;
b) a state may establish that, by way of derogation from paragraphs (2)-(6), the insurance contract shall be governed by the law of the state imposing the insurance obligation.
(8) For the purposes of paragraphs (6) and (7), an insurance contract covering risks situated in several states shall be considered to constitute several contracts, each relating to a single state.
(9) For the purposes of this Article, the State in which the risk is situated shall be determined in accordance with the legislation on insurance. In the case of life insurance, the State in which the risk is situated shall be the State of the insurance commitment.
Article 2622. Individual employment contracts
(1) The individual employment contract shall be governed by the law chosen by the parties in accordance with Article 2617. However, such a choice may not deprive the employee of the protection granted to him under the provisions which cannot be derogated from by agreement by virtue of the law which, in the absence of a choice, would have been applicable under paragraphs (2) to (4) of this Article.
(2) To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the State in which or, failing that, from which the employee habitually carries out his work in the performance of the contract. Where the employee is temporarily employed in another State, he shall not be deemed to have changed his habitual place of work.
(3) If the applicable law cannot be determined pursuant to paragraph (2), the contract shall be governed by the law of the State in which the employing unit is located.
(4) If it appears from the overall circumstances of the case that the contract in question has a closer connection with another state than the one mentioned in paragraph (2) or (3), the law of that other state shall apply.
Article 2623. Consent and substantive validity
(1) The existence and validity of a contract or any contractual clause are determined by the law that would govern it under this chapter if the contract or clause were valid.
(2) However, in order to establish that he has not given his consent, a party may rely on the law of the State in which he has his habitual residence if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law referred to in paragraph (1).
Article 2624. Conditions of formal validity
(1) A contract concluded between persons or their representatives who are in the same state at the time of conclusion of the contract is considered valid from a formal point of view if it meets the formal requirements provided for by the law governing it on the merits within the meaning of this chapter or by the law of the state in which the contract is concluded.
(2) A contract concluded between persons or their representatives who are in different states at the time of conclusion of the contract shall be considered valid from the point of view of form if it meets the formal requirements provided for by the law governing it on the merits within the meaning of this chapter or by the law of any state in which any of the parties or their representatives are located at the time of conclusion of the contract, or by the law of the state in which, at that date, any of the contracting parties had their habitual residence.
(3) A unilateral juridical act intended to produce legal effects, relating to a contract concluded or to be concluded, shall be considered to be valid from a formal point of view if it meets the formal requirements laid down by the law which governs or would govern the contract on the merits in accordance with this Chapter or by the law of the State in which the act was concluded, or by the law of the State in which the author of the act had his habitual residence at that time.
(4) The provisions of paragraphs (1)-(3) of this article shall not apply to contracts falling within the scope of article 2620. The form of such contracts shall be governed by the law of the state in which the consumer has his habitual residence.
(5) Without prejudice to the provisions of paragraphs (1)-(4), a contract which has as its object a real right in immovable property or a leasehold right over an immovable property shall be subject to the formal requirements laid down by the law of the State in which the immovable property is situated to the extent that, according to that law:
a) the conditions in question are applied regardless of the state in which the contract is concluded and regardless of the law governing it; and
b) these provisions cannot be derogated from by convention.
Article 2625. Scope of applicable law
(1) The law applicable to the contract under this Chapter governs, in particular:
a) interpretation of the contract;
b) performance of obligations arising from the contract;
c) within the limits of the competence conferred on the court seized by its procedural law, the consequences of total or partial non-performance of obligations, including the assessment of damage to the extent that this is regulated by legal norms;
d) the different ways of extinguishing obligations, as well as prescription and forfeiture of rights;
e) the effects of the nullity of the contract.
(2) As regards the method of enforcement and the measures that may be taken in the event of defective enforcement, the law of the state in which enforcement takes place shall be taken into account.
Article 2626. Incapacity
In the case of a contract concluded between persons located in the same state, the natural person who would have legal capacity under the law of that state may invoke his incapacity resulting from the law of another state only if, at the date of conclusion of the contract, the other contracting party was aware of the respective incapacity or was unaware of it as a result of his negligence.
Article 2627. Assignment of claim and subrogation
conventional
(1) The relations between the assignor and the assignee or between the creditor and the subrogated party with regard to a claim against a debtor within the framework of an assignment of claim or a conventional subrogation are governed by the law that applies, under this chapter, to the contract between the assignor and the assignee, respectively between the creditor and the subrogated party.
(2) The law governing the assigned claim or the claim in respect of which the subrogation took place determines its assignable nature, the relations between the assignee and the debtor, the conditions under which the assignment or subrogation is opposable to the debtor, as well as the liberating nature of the performance performed by the debtor.
Article 2628. Legal subrogation
If, under a contractual obligation, the creditor has a claim against the debtor and if a third party is obliged to satisfy the creditor or has satisfied the creditor in the performance of that obligation, the law governing the third party’s obligation to satisfy the creditor determines whether the third party is entitled to exercise, in whole or in part, against the debtor the rights that the creditor had under the law applicable to the relationship between them.
Article 2629. Obligations with multiple debtors
If a creditor has a claim against several debtors for which they are jointly and severally liable, and one of the debtors has satisfied the creditor, in whole or in part, the law governing the debtor’s obligation towards the creditor also determines the debtor’s right to take action against the other debtors. The other debtors may rely on the rights they had in relation to the creditor to the extent permitted by the law governing their obligations towards the creditor.
Article 2630. Compensation
In the absence of an agreement between the parties regarding set-off, it is governed by the law applicable to the obligation against which the set-off is sought.
Article 2631. Burden of proof
(1) The law governing a contractual obligation under this Chapter shall apply to the extent that it contains, in the matter of contractual obligations, rules establishing legal presumptions or allocating the burden of proof.
(2) The contract or juridical act intended to produce legal effects may be proven by any means of evidence admitted either by the law of the forum or by any of the laws referred to in art. 2624 under which the contract or act in question is valid in terms of form, provided that the said means of evidence can be administered before the court seised.
Article 2632. Scope of application
(1) The following are excluded from the scope of this chapter:
a) aspects regarding the status or capacity of natural persons, without prejudice to art. 2626;
b) obligations arising from family relationships and relationships which, in accordance with the law applicable to them, are considered to have comparable effects, including maintenance obligations;
c) obligations resulting from the patrimonial aspects of matrimonial regimes, from the patrimonial aspects of relationships which are considered, in accordance with the law applicable to them, to have effects comparable to those of marriage, as well as obligations arising from wills and successions;
d) obligations arising from bills of exchange, checks and promissory notes, as well as other negotiable instruments, to the extent that the obligations arising from such negotiable instruments derive from their negotiable character;
e) arbitration agreements and agreements on the choice of competent court;
f) matters governed by the law of companies and other bodies, whether or not constituted as legal persons, such as the establishment, by registration or otherwise, of legal capacity, internal organisation or dissolution of companies and other bodies, whether or not constituted as legal persons, and the personal liability of their partners and members for the obligations of the company or body;
g) the question of whether a representative can engage the liability of the person on whose behalf he claims to act towards third parties or whether an organ of a commercial company or other body, whether or not constituted as a legal person, can engage the liability of that company or body towards third parties;
h) the establishment of trusts and the relationships between their settlors, trustees and beneficiaries;
i) obligations arising from agreements that took place before the signing of a contract;
j) insurance contracts arising from activities carried out by organizations, other than enterprises, the object of which is to pay indemnities to employed or self-employed persons belonging to an enterprise or group of enterprises or to a business or interbusiness sector in the event of death, survival, interruption or reduction of activity or in the event of occupational disease or caused by work accidents.
(2) This chapter does not apply to evidence and procedural matters, without prejudice to art. 2631.
Chapter VI
NON-CONTRACTUAL OBLIGATIONS
Section 1
Illicit acts
Article 2633. General rule
(1) Except as otherwise provided in this Chapter, the law applicable to non-contractual obligations arising from a tortious act shall be the law of the State in which the damage occurred, regardless of the State in which the event giving rise to the damage occurred and regardless of the State or States in which the indirect effects of that event are manifested.
(2) However, where the person whose liability is invoked and the person who suffered the damage have their habitual residence in the same State at the time the damage occurs, the law of that State shall apply.
(3) Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a State other than that referred to in paragraph (1) or (2), the law of that other State shall apply. A manifestly closer connection with another State may be based, in particular, on a pre-existing relationship between the parties, such as a contract, which is closely connected with the tort/delict.
Article 2634. Liability for defective products
(1) Without prejudice to Article 2633(2), the law applicable to non-contractual obligations arising from damage caused by a product is:
a) the law of the state in which the person who suffered the damage had his habitual residence at the time the damage occurred, provided that the product was marketed in that state; or, if this is not the case,
b) the law of the state in which the product was purchased, if the product was marketed in that state; or, if not applicable,
c) the law of the state in which the damage was caused, if the product was marketed in that state.
(2) However, the applicable law shall be the law of the State in which the person whose liability is invoked has his habitual residence if that person could not reasonably have foreseen the marketing of the product in question or of a product of the same type in the State whose legislation is applicable under paragraph (1) a), b) or c).
(3) Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a State other than that referred to in paragraphs (1) and (2), the law of that other State shall apply. A manifestly closer connection with another State may be based, in particular, on a pre-existing relationship between the parties, such as a contract which is closely connected with the tort/delict.
Article 2635. Unfair competition and practices
ANTI
(1) The law applicable to non-contractual obligations arising from an act of unfair competition is the law of the state in which competitive relations or the collective interests of consumers are or may be affected.
(2) If an act of unfair competition affects exclusively the interests of a particular competitor, the provisions of art. 2633 shall apply.
(3) The law applicable to non-contractual obligations arising from the restriction of competition is the law of the state in which the market is or may be affected.
(4) Where the market is or may be affected in several States, the claimant seeking damages before the court of the defendant’s domicile may also choose to base his claim on the law of the court seised, provided that the market in that State is among those directly and substantially affected by the restriction of competition from which the non-contractual obligation on which the claim is based arises; where the claimant brings several defendants before that court, in accordance with the applicable rules on jurisdiction, the claimant may base his claim only on the law of that court if the restriction of competition on which the action is based against each of the defendants also directly and substantially affects the market in the State of that court.
(5) The law applicable under this Article may not be derogated from by an agreement concluded under Article 2643.
Article 2636. Environmental damage
The law applicable to non-contractual obligations arising from environmental damage or from damage suffered by persons or property as a result of environmental damage is the law established in accordance with Article 2633(1), except in cases where the person claiming compensation for such damage wishes to base his action on the law of the State in which the event giving rise to the damage occurred.
Article 2637. Violation of property rights
intellectual
(1) The law applicable to non-contractual obligations arising from the infringement of a right to an intellectual property object is the law of the state for which protection is sought.
(2) In the case of non-contractual obligations arising from the infringement of a right to an internationally unitary intellectual property object, the applicable law, in any matter not regulated by the relevant international instrument, is the law of the state in which the infringement occurred.
(3) The law applicable in accordance with this article may not be derogated from by an agreement concluded under article 2642.
Article 2638. Trade union actions
Without prejudice to art. 2633 paragraph (2), the law applicable to non-contractual obligations arising from the liability of a person in his capacity as worker or employer or from the liability of organizations representing their business interests, for damages caused by ongoing or completed trade union action, is the law of the state in which the respective action will be or was taken.
Section 2
Unjustified enrichment, business management
and pre-contractual liability
Article 2639. Unjustified enrichment
(1) If a non-contractual obligation arising from unjust enrichment, including undue payment, relates to a relationship existing between the parties, such as that resulting from a contract or from an unlawful act, a relationship closely linked to that unjust enrichment, it shall be governed by the law governing the relationship in question.
(2) If the applicable law cannot be determined under paragraph (1), and the parties have their habitual residence in the same state at the time of the occurrence of the event giving rise to unjust enrichment, the law of that state shall apply.
(3) If the applicable law cannot be determined under paragraph (1) or (2), the applicable law shall be the law of the State in which the unjust enrichment occurred.
(4) If it is clear from all the circumstances of the case that the non-contractual obligation resulting from unjust enrichment is manifestly more closely connected with a State other than that referred to in paragraphs (1)-(3), the law of that other State shall apply.
Article 2640. Business management
(1) If a non-contractual obligation arising from the conduct of business relates to a relationship existing between the parties, such as that resulting from a contract or from a tort, delict or quasi-delict, a relationship closely connected with that non-contractual obligation, the non-contractual obligation is governed by the law governing the relationship in question.
(2) If the applicable law cannot be determined under paragraph (1), and the parties have their habitual residence in the same state at the time of the act or fact causing the damage, the law of that state shall apply.
(3) If the applicable law cannot be determined under paragraph (1) or (2), the applicable law shall be the law of the state in which the business is conducted.
(4) If it is clear from all the circumstances of the case that the non-contractual obligation arising from the management of the business is clearly more closely connected with a State other than that referred to in paragraphs (1)-(3), the law of that other State shall apply.
Article 2641. Pre-contractual liability
(1) The law applicable to non-contractual obligations arising from agreements reached before the signing of a contract, regardless of whether that contract was actually signed or not, is the law applicable to the contract in question or the law that would have been applicable to the contract if it had been concluded.
(2) If the applicable law cannot be determined under paragraph (1), then the applicable law is:
a) the law of the state in which the damage occurred, regardless of the state in which the event causing the damage occurred and regardless of the state or states in which the indirect effects of that event are manifested; or
b) if the parties have their habitual residence in the same state at the time of the event giving rise to the damage, the law of that state shall apply; or
c) if it is clear from all the circumstances of the case that the non-contractual obligation resulting from agreements reached before the signing of a contract is clearly more closely connected with another state than that provided for in letters a) and b), the law of that other state shall apply.
Article 2642. Scope of application in case of violation
intellectual property rights
For the purposes of this chapter, the provisions of art. 2637 apply to non-contractual obligations arising from the infringement of an intellectual property right.
Section 3
Freedom of choice
Article 2643. Freedom of choice
(1) The parties have the possibility to choose, by mutual agreement, the law that will govern the non-contractual obligations arising between them:
a) by an agreement concluded after the occurrence of the event causing the damage; or
b) if all parties involved carry out a commercial activity, through a freely negotiated agreement prior to the occurrence of the event causing the damage.
(2) The choice made must be explicit or must result with a reasonable degree of certainty from the circumstances of the case and may not prejudice the rights of third parties.
(3) If all the elements relevant to the situation in question, at the time when the event giving rise to the damage occurs, are located in a state other than the one whose law was chosen, the choice made by the parties may not prejudice the proper application of the mandatory provisions of the law of that other state, which cannot be derogated from by agreement.
(4) Where all the elements relevant to the situation in question, at the time when the event giving rise to the damage occurs, are located in one or more States, the choice by the parties of an applicable law other than that of the State of the competent court shall not prejudice the proper application of the mandatory provisions of international law which cannot be derogated from by agreement, as they have been implemented in the State of the competent court.
Section 4
Common provisions
Article 2644. Scope of applicable law
The law applicable to non-contractual obligations under this Chapter governs in particular:
a) the basis and extent of liability, including the identification of persons who may be held criminally liable for their acts;
b) the grounds for exemption from liability, limitation and sharing of liability;
c) the existence, nature and assessment of the damage claimed or the compensation requested;
d) within the limits of the competence conferred on the court by its procedural code, the precautionary measures that a court may adopt to prevent or terminate the injury or damage or to ensure the granting of compensation;
e) the possibility or impossibility of transferring the right to invoke the damage or claim compensation, including through succession;
f) persons entitled to compensation for personal injuries;
g) liability for the act of another;
h) methods of extinguishing obligations and the rules governing prescription and forfeiture, including the rules regarding the commencement, interruption and suspension of prescription and forfeiture periods.
Article 2645. Safety and behavior rules
In assessing the conduct of a person whose liability is invoked, due account is taken of the safety and conduct rules in force at the place and time of the occurrence of the act that engages the liability of that person.
Article 2646. Direct action against the insurer
the person responsible
The person who has suffered damage may bring a direct action against the insurer of the person liable for compensation if this possibility is provided for in the law applicable to the non-contractual obligation or in the law applicable to the insurance contract.
Article 2647. Subrogation
Where a creditor has a claim against a debtor, and a third party is obliged to compensate the creditor or has in fact compensated the creditor, leading to the extinction of that obligation, the law governing the third party’s obligation to compensate the creditor determines whether and to what extent the third party has the right to exercise against the debtor the rights that the creditor had against the debtor, under the law applicable to the relationship between the debtor and the creditor.
Article 2648. Multiple liability
Where a creditor has claims against several debtors who are jointly liable for the same obligation, and one of the debtors has already compensated, in whole or in part, the respective creditor, the right of that debtor to seek compensation from the other debtors is governed by the law applicable to the non-contractual obligation of that debtor towards the creditor.
Article 2649. Formal requirements
A unilateral act relating to a non-contractual obligation, intended to produce legal effects, is considered to be valid from a formal point of view if it satisfies the formal requirements imposed by the law governing the non-contractual obligation in question or by the law of the State in which the act is performed.
Article 2650. Burden of proof
(1) The law governing a non-contractual obligation under this Chapter shall apply to the extent that it contains, in matters of non-contractual obligations, rules establishing legal presumptions or determining the burden of proof.
(2) Acts intended to produce legal effects may be proven by any means of evidence recognized by the law of the competent court or by any of the laws referred to in art. 2649, according to which the respective act is formally valid, provided that this means of evidence can be administered before the competent court.
Section 5
Scope
Article 2651. Scope of application
(1) This Chapter shall apply to non-contractual obligations in civil and commercial matters, in situations involving a conflict of laws. It shall not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts or omissions in the exercise of State authority (acta iure imperii).
(2) The following matters are excluded from the scope of this Chapter:
a) non-contractual obligations arising from family relationships or relationships which are considered, in accordance with the law applicable to them, to have comparable effects, including maintenance obligations;
b) non-contractual obligations arising from matrimonial regimes, from property regimes of relationships which are considered, in accordance with the law applicable to them, to have effects comparable to marriage, as well as non-contractual obligations arising from wills and succession;
c) non-contractual obligations arising from bills of exchange, checks and promissory notes, as well as other negotiable instruments, to the extent that the obligations arising from such negotiable instruments arise from their negotiable nature;
d) non-contractual obligations arising from the law of commercial companies and other bodies, whether or not incorporated as legal persons, with regard to matters such as the establishment, by registration or otherwise, of legal personality, the internal organisation or dissolution of commercial companies and other bodies, whether or not incorporated as legal persons, the personal liability of partners and their members for the obligations of the commercial company or body, as well as the personal liability of auditors towards a commercial company or towards its members in carrying out legal audits of accounting documents;
e) non-contractual obligations arising from the relationships between the founders, members of the board of directors and beneficiaries of a voluntarily created trust;
f) non-contractual obligations arising from the occurrence of nuclear damage;
g) non-contractual obligations arising from violations of privacy and rights relating to personality, including defamation.
(3) This chapter does not apply to evidentiary and procedural matters, without prejudice to articles 2649 and 2650.
Article 2652. Non-contractual obligations
(1) For the purposes of this Chapter, “damage” means any consequence of an unlawful act, unjust enrichment, negotiorum gestio (business management) or culpa in contrahendo (pre-contractual liability).
(2) This Chapter shall also apply to non-contractual obligations that may arise in the future.
(3) Any reference in this Chapter to:
a) an act causing damage – includes those acts that may result in damage; and
b) a damage – includes damage that is likely to occur in the future.
Chapter VII
TRUST
Article 2653. Choice of law applicable to the trust
(1) The trust is subject to the law chosen by the settlor.
(2) The provisions of art. 2615 remain applicable.
Article 2654. Objective determination of the applicable law
the trust
In the absence of a choice of applicable law, as well as in the event that the chosen law does not recognize the institution of trust, the law of the state with which the trust has the closest connections shall apply. For this purpose, particular account shall be taken of:
a) the place of administration of the fiduciary patrimonial mass, designated by the settlor;
b) the location of the property comprising the fiduciary patrimonial mass;
c) the place where the trustee has his usual residence or, as the case may be, his registered office;
d) the purpose of the trust and the place where it is to be carried out.
Article 2655. Scope of application of the applicable law
the trust
The law determined according to articles 2653 and 2654 is applicable to the conditions of validity, interpretation and effects of the trust, as well as its administration. This law regulates, in particular:
a) the appointment, resignation and replacement of the trustee, the special conditions that a person must meet to be appointed as a trustee, as well as the transmission of the trustee’s powers of attorney;
b) the rights and obligations between the trustees;
c) the right of the trustee to delegate in whole or in part the performance of his obligations or the exercise of the powers vested in him;
d) the trustee’s powers to administer and dispose of the property in the fiduciary estate, to provide guarantees and to acquire other property;
e) the trustee’s powers to make investments and placements;
f) restrictions regarding the duration of the trust, as well as those regarding the trustee’s powers to set aside reserves from the income resulting from the administration of the property;
g) the relationship between the trustee and the beneficiary, including the trustee’s personal liability towards the beneficiary;
h) modification or termination of the trust;
i) distribution of property from the fiduciary patrimonial mass;
j) the trustee’s obligation to report on the management of the trust property.
Article 2656. Special situations
An element of the trust, susceptible to isolation, and in particular its administration, may be subject to a separate law.
Chapter VIII
SUCCESSION REPORTS
WITH AN ELEMENT OF FOREIGNNESS
Article 2657. General rule
(1) Unless otherwise provided in this Chapter, the law applicable to the succession as a whole shall be that of the State in which the testator had his habitual residence at the time of death.
(2) Where, exceptionally, all the circumstances of the case clearly indicate that, at the time of death, the testator clearly had a closer connection with another State than the State whose law would be applicable under paragraph (1), the law applicable to the succession shall be the law of that other State.
Article 2658. Choice of law
(1) A person may choose that the law applicable to his succession as a whole shall be the law of the State of which he is a national at the time of the choice of law or at the time of death.
(2) A person who holds multiple citizenships may choose the law of any of the states of which he is a citizen at the time of the choice of law or at the time of death.
(3) The choice of law must be expressed explicitly, by a declaration in the form of a disposition upon death, or must result from the terms of such a disposition.
(4) The substantive conditions of the act by which the choice of law was made are regulated by the chosen law.
(5) Any modification or revocation of the choice of law must meet the formal requirements for the modification or revocation of a disposition of property upon death.
Article 2659. Scope of application of the applicable law
(1) The law established under Article 2657 or 2658 shall govern the succession as a whole.
(2) This law regulates in particular:
a) the grounds, time and place of opening the inheritance;
b) the succession vocation of the beneficiaries, the establishment of their shares, the obligations that may be imposed on them by the decedent, as well as other rights regarding the succession, including the succession rights of the surviving spouse;
c) succession capacity;
d) disinheritance and dishonor;
e) the transfer to heirs and, where applicable, to legatees of the property, rights and obligations that make up the estate, including the conditions and effects of accepting the succession or a legacy or renouncing them;
f) the powers conferred on heirs, executors of wills and other administrators of the estate, in particular with regard to the sale of property and the payment of creditors, without prejudice to the powers referred to in art. 2665 para. (4)-(8);
g) liability for the debts of the estate;
h) the part of the estate that can be disposed of, the estate reserve and other restrictions on the freedom to dispose of due to death, as well as the claims that persons close to the deceased may have against the estate or against the heirs;
i) obligations regarding the ratio or reduction of liberties when calculating the shares of the inheritance of the various beneficiaries; and
j) inheritance division.
Article 2660. Provisions for cause of death,
other than pacts on a
future successions
(1) A disposition upon death, other than a covenant on a future succession, shall be governed, as regards its admissibility and substantive conditions, by the law which, under this Chapter, would have been applicable to the succession of the person who made the disposition if he had died on the day the disposition was made.
(2) Without prejudice to the provisions of paragraph (1), a person may choose as the law governing his disposition of property upon death, with regard to its admissibility and substantive conditions, the law that that person could have chosen in accordance with art. 2658, under the conditions established by that article.
(3) The provisions of paragraph (1) shall apply, as the case may be, to the modification or revocation of a disposition of property upon death, other than a covenant on future succession. In the event of a choice of law in accordance with paragraph (2), the modification or revocation shall be governed by the law chosen.
Article 2661. Pacts on a future succession
(1) An agreement on future succession relating to the succession of a person shall be governed, as regards its admissibility, its substantive conditions, its binding nature between the parties and the conditions for its termination, by the law which, under this Chapter, would have been applicable to the succession of that person if he had died on the day the agreement was concluded.
(2) An agreement on future succession concerning the succession of several persons is admissible only if it is admissible under all the laws which, under this Chapter, would have been applicable to the succession of all the persons concerned if they had died on the day the agreement was concluded.
(3) An agreement on a future succession which is admissible under paragraph (2) shall be governed, as regards its substantive conditions, its binding nature between the parties and the conditions for its termination, by the law with which it is most closely connected among those provided for in paragraph (2).
(4) Without prejudice to the provisions of paragraphs (1)-(3), the parties may choose as the law governing the agreement on a future succession, as regards its admissibility, substantive conditions, binding nature between the parties and the conditions for its dissolution, the law which the person or one of the persons whose property is concerned could have chosen in accordance with art. 2658, under the conditions established by that article.
Article 2662. Substantive conditions of the provisions
for cause of death
(1) For the purposes of articles 2660 and 2661, the following elements refer to the substantive conditions:
a) the capacity of the person making the disposition upon death to make such a disposition;
b) special causes that prevent the person making the disposition from making dispositions for the benefit of certain persons or that prevent a person from receiving inheritance property from the person making the disposition;
c) the admissibility of the representation for the purpose of drawing up a disposition for cause of death;
d) interpretation of the provision;
e) fraud, violence, error and any other aspects relating to the consent or intention of the person making the disposition.
(2) Where a person has the capacity to make a disposition of property upon death under the applicable law in accordance with section 2660 or 2661, a subsequent change in the applicable law does not affect his capacity to modify or revoke such a disposition.
Article 2663. Formal requirements of provisions
for cause of death drawn up
in written form
(1) A disposition of property upon death drawn up in writing meets the formal requirements if its form complies with the law:
a) the state in which the disposition was made or in which the agreement on a future succession was concluded;
b) the state whose citizenship the testator possesses or at least one of the persons whose succession is covered by a pact on a future succession, either at the time of drawing up the disposition or concluding the pact, or at the time of death;
c) the state in which the testator or at least one of the persons whose succession is covered by a pact on a future succession is domiciled, either at the time of drawing up the disposition or concluding the pact, or at the time of death;
d) the State in which the testator or at least one of the persons whose succession is covered by an agreement on future succession has his habitual residence, either at the time of making the disposition or concluding the agreement, or at the time of death; or
e) with regard to immovable property – of the state in which it is located.
(2) The determination of whether the testator or the persons whose succession is covered by the agreement on a future succession were domiciled in a particular state is governed by the law of that state.
(3) The provisions of paragraphs (1) and (2) shall also apply to dispositions of property upon death which amend or revoke a previous disposition. The amendment or revocation shall also satisfy the formal requirements if it complies with any of the laws under which, under paragraph (1), the disposition of property upon death which was amended or revoked was valid.
(4) For the purposes of this Article, any legal provision which limits the permissible forms of dispositions upon death by reference to the age, nationality or other personal circumstances of the testator or of the persons whose succession is affected by an agreement on future succession shall be deemed to be a matter of form. The same shall apply to the qualifications which witnesses must possess in order for a disposition upon death to be valid.
Article 2664. Formal requirements of a declaration
regarding the acceptance or rejection of
inheritance
A declaration concerning the acceptance of an inheritance, a legacy or a reservation of succession or the renunciation thereof or a declaration designed to limit the liability of the declarant is valid, as regards form, if it complies with the requirements imposed by:
a) the law applicable to the succession under art. 2657 or 2658; or
b) the law of the state in which the declarant has his or her habitual residence.
Article 2665. Special rules regarding appointment
and the powers of an administrator
of the estate in certain situations
(1) Where the appointment of an administrator is mandatory or mandatory upon request under the law of the State in which the courts competent to rule on the succession are situated under this Chapter, and the law applicable to the succession is a foreign law, the courts of that State, when seised, may appoint one or more administrators of the estate in accordance with their own law, subject to the conditions laid down in this Article.
(2) The administrator(s) appointed in accordance with this paragraph shall be entitled to execute the will of the deceased and/or to administer the estate of the deceased under the law applicable to the succession. Where that law does not provide for the administration of the estate by a person who is not a beneficiary, the courts of the State in which the administrator is to be appointed may appoint a third-party administrator in accordance with their own law, unless that law provides otherwise and where there is a serious conflict of interest between the beneficiaries or between the beneficiaries and the creditors or other persons who have guaranteed the debts of the deceased, a disagreement between the beneficiaries regarding the administration of the estate or an estate which is difficult to administer due to the nature of the property.
(3) The administrator(s) appointed in accordance with paragraph (1) or, as the case may be, paragraph (2) shall be the only person(s) entitled to exercise the powers referred to in paragraphs (4)-(8).
(4) The person(s) appointed as administrator(s) in accordance with paragraphs (1)-(3) shall exercise those powers of administration of the estate which he/she may exercise in accordance with the law applicable to the succession. The appointing authority shall establish, in its decision, the conditions for the exercise of these powers in accordance with the law applicable to the succession.
(5) Where the law applicable to the succession does not confer sufficient powers to preserve the property of the estate or to protect the rights of creditors or other persons who have guaranteed the debts of the deceased, the appointing authority may decide to allow the administrator(s) to exercise, on a residual basis, the powers provided for this purpose in its own law and may establish, in its decision, specific conditions for the exercise of those powers in accordance with that law.
(6) When exercising such residual powers, the administrator(s) must comply with the law applicable to the succession as regards the transfer of ownership of the estate, liability for the debts of the succession, the rights of the beneficiaries, including, where applicable, the right to accept or waive the succession, and the powers of the executor of the deceased.
(7) Without prejudice to paragraphs (4)-(6), the authority appointing one or more administrators in accordance with paragraphs (1)-(3) may decide, exceptionally, where the law applicable to the succession is the law of a third country, to confer on those administrators all the powers of administration provided for in the law of the country in which they are appointed.
(8) When exercising such powers, administrators must respect, in particular, the succession vocation of the beneficiaries and the establishment of their succession rights, including their rights to a succession reserve or to claims on the estate or against the heirs in accordance with the law applicable to the succession.
Article 2666. Special rules imposing restrictions
regarding succession or affects
succession in certain aspects
Where the law of the State in which certain immovable property, certain undertakings or other special categories of property are situated contains special rules which, for economic, family or social reasons, establish restrictions on successions or affect successions in respect of those properties, those special rules shall apply to the succession to the extent that, under the law of that State, those rules are applicable irrespective of the law applicable to the succession.
Article 2667. Adaptation of real rights
Where a person invokes a real right to which he is entitled under the law applicable to the succession, and the real right in question is not provided for in the legislation of the state where the real right is invoked, that right shall be adapted, if necessary and to the extent possible, to the closest equivalent real right under the legislation of that state, taking into account the objectives and interests pursued by the specific real right and its effects.
Article 2668. Comorians
If two or more persons whose successions are governed by different laws die in circumstances where the order in which the deaths occurred cannot be precisely established and if the respective laws resolve this situation differently or do not contain provisions in this regard, neither deceased is entitled to the succession of the other or the other deceased.
Article 2669. Vacant succession
To the extent that, under the law applicable to the succession under this Chapter, there is no heir or legatee to the property designated by a disposition of property upon death and no natural person has the status of heir under the law, the application of the law so determined shall not prejudice the right of a State or an entity designated for this purpose by that State to acquire, under its law, the property of the estate situated in its territory, provided that creditors are entitled to claim satisfaction of their claims from the estate as a whole.
Article 2670. Scope of application
(1) This Chapter shall apply to successions concerning the estates of deceased persons. This Chapter shall not apply to fiscal, customs or administrative matters.
(2) The following are excluded from the scope of this chapter:
a) the status of natural persons, as well as family relationships and relationships which, in accordance with the law applicable to them, are considered to have comparable effects;
b) the legal capacity of natural persons, without prejudice to the provisions of art. 2659 paragraph (2) letter c) and art. 2662;
c) matters relating to the disappearance, absence or presumed death of a natural person;
d) matters relating to the property aspects of matrimonial regimes and the property aspects of relationships which are considered, in accordance with the law applicable to them, to have effects comparable to those of marriage;
e) maintenance obligations, other than those due to death;
f) the formal conditions of the provisions regarding patrimonial matters for cause of death drawn up in verbal form;
g) property rights and property established or transferred otherwise than by succession, for example by gifts, by joint property to which the law of the surviving partner applies, by pension plans, by insurance contracts and similar agreements, without prejudice to the provisions of art. 2659 para. (2) letter i);
h) matters governed by the law of companies and other bodies, whether incorporated or not, such as clauses included in the articles of association and statutes of companies and other bodies, whether incorporated or not, which determine what will happen to shares in the event of the death of their members;
i) dissolution, expiration and merger of commercial companies and other bodies, whether or not constituted as legal persons;
j) the establishment, administration and dissolution of trusts;
k) the nature of the real rights;
l) any registration in a register of property rights over immovable or movable property, including the legal requirements for such registration, as well as the effects of the registration or failure to register such rights in a register.
Chapter IX
LIMITATION PERIOD
Article 2671. Law applicable to the limitation period
The extinction of the right to action is governed by the law applicable to subjective law.