The company contract in the new Romanian Civil Code (art. 1881 - 1954). Comparison with the 1865 Civil Code

• Author: Silvia Cristea
• Position: The Bucharest University of Economic Studies, Department of Law
• Pages: 78-106

78 Volume 2, Issue 1, December 2011 Juridical Tribune

The company contract in the new Romanian Civil Code (art. 1881 - 1954).

Comparison with the 1865 Civil Code

Associate Professor Ph.D. Silvia CRISTEA1

Abstract

The Longevity of the Roman Civil Code from 1864, and the long duration of

cohabita tion with the Commercial Code of 1887 puts into question the issue of rapid

enforcing of the New Civil Code! Therefore it is extremely important to compare the

current dra fting legal texts r egarding companies in the New Civil Code, with the lega l

provisions conta ined in the Law 31/199o! Because the New Civil Code is put into pract ice

recently, the present study r elies solely on examination of the doctrine in this area. The

results of the resea rch have as ta rgets the researcher s and teachers from the faculties of

law: th e study is origina l due to the fact that the old Civil Code is compared with the new

Civil code. The present study is exceeding this image, trying to create a new per spective

and a mor e complete ana lysis!

Keywords: commercial (tra de) companies, the a ssociates, company contract, Civil Code.

JEL Classification: K12, K20

1. Introduction

Having the goal to reflect the deep changes undergone by the Romanian

society and the current European realities, and to meet the requirements resulting

from the commitments made by Romania within the framework of its European

integration and from its capacity of a EU member (as stipulated in the justification

of the Draft Law no 305/2009, submitted to the Chamber of Deputies), the new

Civil Code promoted by the Law no 287/2009 (published in the Official Gazette

no 511 dated 24 July 2009, republished in the Official Gazette no 505 dated

15 July 2011) entering into force on the first of October 2011, combines patterns

from the new, modern regulations pertaining to foreign legislations with attempts

made in time in Romania to modify and complete the Civil Code.

The New Civil Code (=NCC, a phrase that we shall use hereinafter to

differentiate the 2009 regulations from the 1865 Romanian Civil Code, abrogated

by the Law 71/2011, published in the Official Gazette no 409 dated 10 June 2011)

integrates, in its new structure, all the regulations regarding individuals, family

relations, commercial relations and international private law provisions.

This study is analysing the provisions included in Book V „On

obligations”, chapter VII „The company contract and the contract of partnership”,

that is articles 1881-1954 in the New Civil Code.

1 Silvia Cristea – The Bucharest University of Economic Studies, Department of Law,

silvia_drept@yahoo.com

Juridical Tribune Volume 2, Issue 1, June 2012 79

Given our aim to reflect the trends in the Romanian business environment

and the trends of the commercial companies legislation (especially the Law no

31/1990 regarding commercial companies, hereinafter referred to as the

abbreviation „LSC”), this study has been structured in 4 sections as follows:

Concepts. New institutions (section 1); Institutions no longer in the New Civil

Code (section 2), Institutions and concepts totally changed by the New Civil Code

(section 3), and Conclusions (section 4).

2. Concepts. New institutions

 art. 1882 paragraph 1 in the NCC regulates the case when a spouse

brings an asset into the joint assets resulted from a marriage. In this case, the Draft

stipulates, for the asset input be valid, that the other spouse should give one’s

consent, under art. 349 in the NCC.

 art. 1887 of the NCC creates a behavioral rule that changes entirely the

concept of the civil law-makers, namely that the chapter dedicated to companies

represents the common law in the field (paragraph 1); moreover, according to

paragraph 2, the law regulates various types of companies depending on their form,

nature or object of activity.

The interpretation of these provisions corroborated with art. 1888 in the

NCC leads to the deduction that this is the general regulation, having a common

law role, for both non-stock companies and commercial companies; other types of

companies can be regulated by special laws2.

Art. 1887 can be seen as a modernized art. 1531 of the Civil Code which

stipulated that laws governing commercial companies could be enforced as long as

there were no contradictions with legal provisions or commercial practices. Since

the NCC stipulates nothing in this respect, a question arises - what will happen to

the Commercial Code and to the LSC, and to other special commercial laws!!! Can

we assume, based on the art. 1887 in the NCC, that the dichotomy civil law –

commercial law disappears?

 art. 1888 listed the forms that companies/partnerships could have:

a) simple partnership; b) partnership; c) general partnership; d) limited partnership;

e) limited liability company; f) joint stock company; g) joint stock partnership;

h) cooperative company; i) other type of company under the law3.

The list includes the types previously regulated in the Civil Code and those

regulated in LSC and the Commercial Code.

 art. 1889 in the NCC stipulates the requirements for a company to

acquire legal personality as follows:

a) where, under the company contract, or in a separate document, the

associates agree to set up a company with legal personality, in compliance with the

law, the associates shall have secondary, unlimited and joint liability, whether

2 O. Cpân, Commercial companies, Lumina Lex Publishing House, Bucharest, 1996, p. 26.

3 St. D. Crpenaru, C. Predoiu, S. David, Gh. Piperea, Commercial companies-r egulations, doctrine,

jurisprudence, All Beck Publishing House, Bucharest, 2001, p. 39.