Considerations on the liquidation among the heirs of the funeral expenses 327
In the Old Kingdom, the Civil Code of 186418 was implemented from 1
December 186519. Unlike the Austrian Civil Code, our code did not mention
funeral expenses, but the doctrine20 considered them as part of the content of the
notion of charge on the succession, the latter being mentioned for example in
article 774 (co-heirs contribute to the payment of the debts and charges on the
succession, each in proportion to what it takes).
In the case of the judicial partition of the inheritance, in application of the
provisions of the Civil Code of 1864, the courts considered the expenses incurred
with the burial, the alms and the funerary monument as part of the charges on the
succession, being deducted from the assets of the inheritance21.
The correlation between bearing the burial expenses as a charge on the
succession, on the one hand, and the quality of heir to the deceased, on the other
hand, is also illustrated in the jurisprudence from the beginning of the last century,
when, according to article 652 par. (2) and article 679 from the Civil Code of 1864
which provided that the surviving spouse could inherit only in the absence of
legitimate or natural heirs of the twelfth degree, it has been ruled that not the
husband has to bear the funeral expenses of his wife, but hes heirs, because the
husband cannot be forced to bear the charges of the marriage after the death of
On the other hand, in the case of a deceased wife without children, but
married with dowry, it was considered that the husband has to bear the funeral
and memorial expenses, not her heirs, since such expenses stem from a natural
obligation23 and cannot be claimed back, since according to article 1392 par. (2)
Civil Code of 1864 repetition is not admitted in respect of natural obligations,
which have been freely paid.
Although after the Great Union in 1918 the provinces united with the Old
Kingdom have for the time being retained their own legislative identity, there are
18 Published in the Official Journal of Romania no. 271 from 4th of December 1864, no. 7 from 12th
of January 1865, no. 8 from 13th of January 1865, no. 8 from 14th of January 1865, no. 11 from 16th of
January 1865 and no. 13 from 19th of January 1865.
19 The 1864 Civil Code did not apply to all people in the Old Kingdom: the Mohammedan
population of Dobrogea (historical region divided since the 19th century between Bulgaria and
Romania.) was subject to Muslim legislation on successions (Article 30 of the Law on the Organization
of Dobrogea). See D. Alexandresco, Theoretical and Practical Explanations on Romanian Civil Law as
Compared to the Old Laws and to the Main Foreign Laws, tome III - part II: Ab intestat successions,
Bucharest: Atelierele Grafice Socec & Co., 1912, p. 220.
20 M. B. Cantacuzino, Elements of Civil Law , Bucharest: All Educational, 1998, p. 284; D.
Alexandresco, op. cit., p. 59, n. 4.
21 F. Pavel, op. cit., p. 182.
22 Romanian Court of Cassation, section I, 21 October 1913, Curierul Judiciar, in G. Plastara, op. cit.,
23 N. J. Constantinescu, On successions, second edition, Bucharest: Curierul Judiciar, s.a., p. 43-44.