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

Author:Silviu Marian Munteanu
Position:Faculty of Law, University of Bucharest, Romania
Pages:166-176
SUMMARY

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... (see full summary)

 
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Considerations regarding the characteristic features
of potestative rights under the Romanian civil law
1
PhD. student Silviu-Marian MUNTEANU
2
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.

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