Aspects concerning the private ownership right within the context of the new civil code

• Author: Ana-Maria Lupulescu
• Pages: 290-297

ASPECTS CONCERNING THE PRIVATE OWNERSHIP RIGHT WITHIN THE

CONTEXT OF THE NEW CIVIL CODE

Lecturer Ana-Maria LUPULESCU

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Abstract

The new Civil Code intr oduces several important cha nges and clarifications r egarding the ownership right

in genera l, and the private ownership ri ght, in particula r, so that it becomes necessary, for both the analyst in law

and the practitioner, to make a compar ison between the old r egulation contained in the Civil Code of 1864 a nd the

current regulation pr ovided by the new Civil Code. At least in theory, the new legal framework in this a rea shows

greater consistency and legal precision, although it is not entirely safe from any criticism.

Key words: private ownership right, restora tion of property, juridica l l imits, legal limits, conventional limits,

judicial limits

JEL Classification: K11

1. Preliminary considerations

The new Civil Code

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introduces several important changes and clarifications regarding

the ownership right in general, and the private ownership right, in particular, therefore requiring a

comparative research between the old regulation contained in the Civil Code of 1864 and the

current regulation provided by the new Civil Code.

In this respect, taking into account the critical comments referring to the legal definition

of the ownership right contained in art. 480 of the 1864 Civil Code

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, the legislator has completed

it as emphasized by the juridical doctrine, so that in the new regulation (article 555 of the new

Civil Code), this definition contains all the attributes that compose the legal content of the

ownership right, namely possession, use and disposition

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.

At the same time, concerning the juridical characters of the private ownership right, the

legal definition provided by art. 555 of the new Civil Code is more comprehensive since it refers

to all characters of the property right arising from its specific legal nature, namely the exclusive,

absolute and perpetual characters

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.

By the legal regulation of private ownership right contained in the new Civil Code, the

Romanian legislator has intended to eliminate other critics or confusions caused by the prior

regulation, such as for example in relation to the ways of acquiring private ownership. Thus, the

legal enumeration of the general ways of acquiring private property right contained in art. 644

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Ana-Maria Lupulescu, Bucharest University of Economic Studies, Law Department, anamarialupulescu@yahoo.com

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Law no. 287/2009, republished in the Official Journal of Romania, Part I, no. 505/15.07.2011.

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See, in this respect, L. Pop, Dreptul de proprietate şi dezmembrmintele sale, Lumina Lex Publishing House, Bucharest, 2001,

p. 41-42.

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In the old regulation, art. 480 of the Civil Code of 1864 provided: “The property is the right one has to enjoy and dispose of a

thing ....". Some authors have argued that the legal definition of the ownership right was incomplete because it did not include the

use of the thing, as an attribute of this right. We consider, among other authors - for example, P.C. Vlahide, Repetiia principiilor

de drept civil, vol I, Europa Nova Publishing House, Bucharest, 1994, p. 83; G. Boroi, L. Stnciulescu, Instituii de drept civil în

reglementarea noului Cod civil, Hamangiu Publishing House, Bucharest, 2012, p. 17 – that this criticism was not justified,

because the expression "to enjoy" a thing designate both the use and the possession over it. In any case, the current regulation has

eliminated any controversy in this regard, so that art. 555 of the new Civil Code expressly provides: "The private property is the

right of the owner to possess, use and dispose of a thi ng in an exclusive, absolute and perpetual manner, within the limits

established by law."

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In the old regulation, the legal definition of the private ownership right, contained in art. 480 of the 1864 Civil Code, made

reference only to the absolute and exclusive characters, but in the juridical doctrine all authors had analyzed, in addition to these

juridical characters expressly provided by the law, the perpetuity of ownership.