Considerations regarding the characteristic features of potestative rights under the Romanian civil law

• Author: Silviu-Marian Munteanu
• Pages: 166-176

Considerations regarding the characteristic features

of potestative rights under the Romanian civil law1

PhD. student Silviu-Marian MUNTEANU2

Abstract

Potestative rights are still representing an exotic category of subjective civil rights.

We are saying that it represents an exotic category because, although in practice they are

frequently encountered, the theoretical approaches regarding their general legal regime are

extremely limited. Therefore, in the present study we will focus on identifying the

characteristic features of potestative rights, as well as highlighting the similarities and

differences between these rights and other categories of civil subjective rights. From this

point of view, we will focus on the similarities and differences between potestive rights and

debt and in rem rights, concluding that potestative rights are a category of intermediate

rights, as it lends specific features from both, debt and rights in rem. Also, starting from the

potestative rights definition provided by the schoolars, we will analyze, one at a time, their

defining elements and explain how these characteristic elements should be understood.

Therefore, we will focus on the defining elements of potestative rights, namely: (i) the power

of the potentior to change a legal situation involving the interests of another person; (ii) the

bond of obedience; and (iii) the specific object.

Keywords: civil subjective right, potestative right, judicial power, judicial

situation.

JEL Classification: K15.

1. Preliminary aspects

Potestative rights have (limitedly) caught the attention of the Romanian

scholars only when it was necessary the creation of a supplementary theoretical

framework for the explanation and proposal of new approaches to certain legal

institutions and mechanisms. However, so far, the overall picture regarding the

modus operandi and the legal regime of these rights is insufficiently outlined in the

Romanian legal doctrine. The misunderstanding of potestative rights can lead to

various practical problems because not always an option right can be integrated into

the category of potestative rights. Therefore, this category of civil subjective rights

can be particularly misleading. Professor Marian Nicolae warned on this issue by

highlighting the errors to which Romanian authors and practitioners may be

1 The present study represents an adapted section of the Ph.D. Research Report held at the Faculty of

Law of the University of Bucharest on 27 June 2017.

I would like to thank my colleague Gabriela Olteanu for her valuable help with the English translation

of the present study.

2 Silviu-Marian Munteanu – Faculty of Law, University of Bucharest, Romania, silviu-

marian.munteanu@drept.unibuc.ro.