The investment of the payment instruments with executory formula

• Author: L. Manea - A. C. Manea
• Pages: 203-207

L. Manea

Dept. Of Public Law, Transilvania University Of Brasov.

1. C. Manea

Dept. Of Private Law, Transilvania University Of Brasov.

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Page 203

We have been writing before about this subject [1] regarding the necessity of an unitary application and interpretation of the article 374^1 from the Civil Procedure Code relative to the article 61 from the Law no.58/1934 [2] and article 53 from the Law no.59/1934 [3], and at that moment the Highest Court of Cassation and Justice did not pronounce the sentence. We agree then to the second opinion that sustained that it is not necessary and compulsory to invest with executory clause the promissory note ,bill payable to order and cheque because article 374^1 from the Civil Procedure Code represents the special rule in the domain of the execution without the executory clause based only on the law which recognized the character of the writ of execution.

Our juridical argument at the moment of appeal in the interest of law was that Law no. 58/1934 and no. 59/1934 haven't been amended in essence until today, and the actual amendments brought to the Civil Procedure Code through Law no. 459/2006 [4] have priority as special rules when they concluded that "the judgment or other titles execute themselves only if they are invested with the executory clause mentioned in article 269 paragraph 1, except for the enforceable judgment, the provisional enforceable judgment and other judgments or documents mentioned by law which execute themselves without the executory clause".

In accordance with article 61 paragraph 1 from the Law no. 58/1934, "the promissory note has value of a writ of execution forPage 204the capital and premises, settled in accordance with article 53, 54 and 57".

At the same time, the identical law confers equally through article 106 the same character to the bill payable to order. The bill payable to order has the same juridical regime as the promissory note. The character of writ of execution is also recognized to the cheque, and so article 53 paragraph 1 from the Law no. 59/1934 settled :"the cheque has value of a writ of execution for the capital and premises, settled in accordance with article 48 and 49".

We have taken into account all these arguments when we sustained our point of view about the priority as special rules of the amendments brought to the Civil Procedure Code through the law no. 459/2006, especially the provisions of article 374 ^1 from the civil procedure code.

The...