Patrimonies by appropriation and the personalist theory of patrimony
| Author | Luminita Tuleasca |
| Position | Ph.D., Associate Professor, Faculty of Law, Romanian-American University |
| Pages | 22-41 |
22 LUMINIŢA TULEAŞCĂ
PATRIMONIES BY APPROPRIATION
AND THE PERSONALIST THEORY OF PATRIMONY
Associate Professor Luminia TULEAŞC, Ph.D.,
Faculty of Law, Romanian-American University
Abstract
This study aims to determine the legal nature and characteristics of patrimonies by
appropriation and the impact of such important matters regarding the legal regime of patrimonies by
appropriation on the subjectivist (or personalist), classical theory of patrimony.
We start from the idea that the patrimony by appropriation should be perceived as a new
creation, with different characteristics than the ones of the “parent patrimony”. To accept this idea
means to open new ways in the approach of the patrimony by appropriation and the issues debated
hereby.
We will reach our goal through the answers to the following questions: Is patrimony an asset?
What about the patrimony by appropriation? Does the patrimony by appropriation reproduce the
genetic code of the general patrimony or is it a new creation with a special legal regime? What are the
special characteristics of the patrimonies by appropriation?
Keywords: patrimony by appropriation, general patrimony, alienation of patrimonies by
appropriation, patrimony ownership, JEL Classification: K10, K11, K12, K20, K22.
Preliminary notes
To determine the legal nature and characteristics of patrimonies by
appropriation will allow us to understand and use this legal institution better
and how they determine a rethinking of the theory of patrimonies in the
Romanian law.
To obtain proper answers to our questions and reach the objectives of this
study, it is firstly necessary to clarify several major issues in the matters of goods
relevant for the classification of general patrimonies and patrimonies by
appropriation. Subsequently, based our findings, we will analyze if general
patrimonies and patrimonies by appropriation qualify as assets and, thus, we will
be able to determine their legal nature. We will further analyze and define the
The Romanian version of the article was published in the Revista Român de Drept Privat
nr. 5/2015.
E-mail: luminita.tuleasca@tuleasca.com.
Law Review vol. VI, issue 2, Jul
y
-December 2016, p. 22-41
Patrimonies by appropriation and the personalist theory of patrimony 23
characteristics of patrimonies by appropriation and their impact on the subjective
theory of patrimony by reference to the dual legal nature of the patrimony by
appropriation and the features of general patrimonies.
1. About assets in general
People and assets are traditionally essential components of the legal universe,
the super-classes of the civil law. This summa division, people and assets,
originates in the Roman law and it was the Code of Justinian that took over the
concept from the famous legal advisor Gaius1. In the Romanian legal field, the
concept was first found in the Code of Calimach, according to which: “Everything
that is not a person and serves people is an asset according to the law” art. 378 of
the Code of Calimach.
Since the 2nd century A.D., the evolution of society and, thus of laws, has
triggered significant transformations in the law of assets.
In Romania, the current Civil Code still distinguishes between things (tangible
and intangible) and assets art 535 Civil Code2, but rights seem to originate from
the class of assets to form a separate class of rights art 542 Civil Code3.
If the Civil Code of 1864 did not provide a definition of assets, it has been
stipulated in the current Civil Code according to which: “Assets are the tangible
and intangible things that are object of a patrimony right” art 535 Civil Code.
Based on this definition of assets, the Romanian Civil Code takes after the
Italian Civil Code, according to which: “Assets are the things that might be object
of rights” art. 810 of the Italian Civil Code4, and separates itself from the French
Civil Code that provides that assets are the tangible and intangible things – object
of appropriation and property and personal rights art 520 of the French Civil
Code5.
The jurisprudence of the European Court of Human Rights has a more modern
and comprehensive approach as regards the definition of assets from art 1 under
the Additional Protocol of 1952 to the Convention for the protection of human
1 In Institute, Gaius mentioned three pillars for the civil law: personae, res, actiones, a right
operating in various relations between people and assets. See Reinhard Zimmermann, The Law of
Obligations: Roman Foundations of the Civilian Tradition, Oxford University Press, 1996, p. 25-26.
2 Art. 535 C. civ: Things are the tangible or intangible assets making object of a right to
patrimony.
3 Art. 542 C. civ.: (1) If not stipulated otherwise, they are subjected to the rules on immovable
assets and related property rights. (2). The other rights of patrimony are subjected, according to the
law, to the rules on movable assets.
4 Art 810 of the Italian Civil Code: Sono beni le cose che possono formare oggetto di diritti.
5 Art. 520 of the French Civil Code.: Sont des biens, au sens de l’article précédent, les choses
corporelles ou incorporelles faisant l’objet d’une appropriation, ainsi que les droits réels et personnels
tels que définis aux articles 522 et 523.
24 LUMINIŢA TULEAŞCĂ
rights and fundamental freedoms. The article stipulates the enjoyment of
assets:”any natural or legal person is entitled to the peaceful enjoyment of assets”.
According to the jurisprudence of the European Court of Human Rights, the
concept of assets includes all rights of patrimony, property and debt6; moreover, it
was decided that the “substantial economic interest” and even a “legitimate hope”
can be classified as assets under art 1 of the Additional protocol no. 1.
The German Civil Code (BGB) has an adverse approach: “everything that
arises from intangibility (rights) and things that cannot be controlled (air, clientele)
are not considered assets according to the BGB. What we consider intellectual or
intangible property is considered, by the German law, a non-property right that
offers no power over an asset because the asset does not exist”7.
An interesting thesis comes from the remarkable French doctrinaires Zenati
and Revet, who claim that an asset is any identifiable, isolable and useful entity
that is object of an excllusive relation8. For Zenati, property rights are not assets as
they are mechanisms allowing things to become assets9.
It is axiomatic that not things, but assets are of interest from a legal perspective
and, implicitly, for the analysis on patrimony because assets are those things that
can make object of a right of patrimony, right that is a component of the
patrimony.
In terms of the assets’ transformation, all things, i.e. physical realities (others
than people)10, become assets only when they are likely to be appropriated
according to the legal meaning11, i.e. are object of a right of patrimony.
Beyond doubt, only patrimony rights are considered and not money claims,
although both classes of rights are patrimony rights based on the arguments
presented below.
6 According to the CEDO jurisprudence, a money claim is a patrimony value and classifies as
asset under art 1 of Protocol no. 1 to the Convention because “there is at least a legitimate hope to
recover the money”, ECHR decision of April 16, 2002, S.A. Dangevillec/France, Recuiel 2002-III, §48;
in all cases, a money claim is an asset according to the Convention only when it is determined under
an injunction enjoying a status of res judicata (EDH Commission, rap October 1, 1975, no. 5849/1972,
Muller C/Autriche, DR no. 3, p. 25 and the following: October 5, 1977, no.7459/1976, X c/italie, DR
nr. 11, p. 114 and the following), Apud. C. Bîrsan, Convenia european a drepturilor omului. Comentariu
pe articole, I, Drepturi şi liberti (denumit în continuare Co nvenia), Ed. All Beck, Bucharest, 2005, n. 526,
p. 973-974.
7 M. Boudot, Droit de biens, Plan du Cours, 2009, p. 3, available online at: http://droit.univ-
poitiers.fr/poitiers-roma/ (last view on July 23, 2015).
8 Regarding the exclusivity of the property right, see V. Stoica, Drept civil 2013, op. cit., p. 125 -
126; O. Ungureanu, C. Munteanu, Coninutul şi definiia dreptului de proprietate în lumina noului Cod
civil, in RRDP no. 3/2013.
9 See Frederic Zenati-Castaing, Th. Revet, Les biens, PUF Coll. Droit fondamental, 3e éd. 2008, p. 21,
note 2 and 3.
10 See R. Rizoiu, Ipoteca bunurilor incorporale: Cum urmreşti ceea ce nu vezi?, in Revista Român de
Drept Privat no. 4 /2015, available online at: www.idrept.ro.
11 See O. Ungureanu, Consideraii asupra noiunii şi definirii bunurilor, in Revista Român de Drept
Privat no. 3/2008.
Patrimonies by appropriation and the personalist theory of patrimony 25
The exclusive comparison to property rights is required by the essential
difference between the nature of property rights, as rights of a person exercised
over a thing directly and unmediated, such thing being in the possession of the
person, and money claims as rights of a person against another person, exercised
to compel the latter to give, do or not do something12.
Therefore, a thing is subjected wholly or partially, to the power of a person13
only based on a property right by means of which the fully unmediated power is
exercised over a thing.
If we compare the two classes of rights, property rights are absolute rights,
opposable to erga omnes, while money claims are relative rights as a person can
have money claims only against a person or more people who are limited in
number and identifiable14.
Therefore, considering that art 535 of the Civil Code does not distinguish
between patrimony rights by means of which things become assets, we can say
that a thing, an economic value, will be an asset if it is object of one of the following
property rights of patrimony: property rights, rights of superficies, rights of
usufruct, rights to use, rights of inhabitance, rights of easement, rights of
administration, rights of concession, security rights, other rights stipulated by the
law as such art. 551 of the Civil Code.
As tangible things are concerned, if the asset is not appropriated under a
property right, the other patrimony rights do not operate over tangible things,
respectively over tangible assets15. We advocate, therefore, the opinion according
to which a tangible thing will become an asset if it is object of a property right.
2. Rights vs. assets?
Under the influence of the foreign doctrine16 and the provisions of the New
Romanian Civil Code, our literature has reshaped the idea according to which
rights are not original assets, but can become assets through assimilation (art 542 of
the Civil Code)17.
12 C. Hamangiu et all.., Tratat de drept civil român, vol. I, op. cit., p. 526, M. B. Cantacuzino,
Elementele dreptului civil, Ed. All, 1998, p. 34., n. 54.
13 Hamangiu C., Rosetti-Blnescu I, Bicoianu Al., Tratat de Drept Civil Român, vol. 1, (further
Hamangiu et all., Tratat, I) Editura All, 1996, p. 526.
14 Ibidem, p. 528; Gh. Beleiu, Drept civil român. Introducere în dreptul civil. Subiectele dreptului civil,
7th edition, reviewed and completed by M. Nicolea, P. Truşc, Ed. Universul Juridic, Bucharest, 2001,
p. 75.
15 See I. Reghini, Ş. Diaconescu, P. Vasilescu, Introducere în dreptul civil, Ed. Hamangiu, Bucharest,
2013, p. 384.
16 See Gardies J.-L., La chose et le droit sur la chose dans la doctrine du droit de Kant,
Arch. phil. du droit 1979, p. 139-149 (143); Villey M., Les biens et les choses, préface
historique, Arch. phil. du droit 1979, p. 1-7 (2).
17 Art. 542 of the Civil Code: (1) If not provided otherwise, property rights attached to real estate
are subjected to the rules on such real estate (2) The other patrimony rights are subjected, within the
legal limits, to the rules on movable assets.
26 LUMINIŢA TULEAŞCĂ
Independently, it is generally accepted that patrimony rights can be, on their
turn, object of patrimony rights; classical examples concern money claims and
stocks-in-trade which could be called derived assets.
Going back to the theory of the “dichotomy” between rights and assets, its
authors claim that rights are assets only when they are likely to be appropriated in
legal terms, respectively they can be object of other rights of patrimony18, as per
art 535 of the Civil Code on the “transformation” of things into assets.
This theory is contradicted by the texts of the Civil Code that assert the quality
of tangible assets of several rights; we consider here art. 1897 of the Civil Code,
which expressly indicates as intangible assets (ab initio) in terms of the
contributions (in intangible assets) to a company’s share capital: receivables, shares
issued by a company, promissory notes and other debt securities used by
merchants – all of them being deeds that contain money claims.
Secondly, the definition of assets is not included in the legal regime of assets or
the requirements to be met for the “transformation” of rights into assets. Logically,
the provisions of art 542 of the Civil Code cannot be construed as conditioning the
status of rights as assets to the former following the path at the end of which things
become assets19.
Similarly, art 542 of the Civil Code provides that rights are subjected to the
legal regime on assets, not on things. Art 543 indirectly admits, thus, that rights are
included in the class of assets without additional requirements. Conversely, given
that patrimony rights are the only intangible ones, we should include patrimony
rights in the class of “intangible things”, which is not possible.
In our opinion, therefore, art 542 of the Civil Code should not be construed as
regulating the distinction between rights and assets as per the meaning put
forward by the new theory on the transformation of patrimony rights into assets.
It is more natural to construe this law as a classification of patrimony rights as
tangible assets or assets of specific nature20, irrespective if they are or not object of
another patrimony right. We have to add, however, that according to a coherent
concept, intangible assets should be understood as including the property rights
over tangible things21. Therefore, in a broad meaning, assets are both things and
related rights22.
18 See R. Rizoiu, Accesoriul poate transforma principalul? Despre natura bunului ipotecat, in Revista
Român de Drept Privat no. 3/2015, available online at www.idrept.ro.
19 The criticism on the legal definition of assets under art 535 of the Civil Code and the need to
amend it in I. Reghini, Ş. Diaconescu, P. Vasilescu, Introducere în dreptul civil, op. cit., p. 386-387
20 Frederic Zenati-Castaing, Th. Revet, Les biens, op. cit., p. 33 no. 8.
21 As claimed in specialized texts, ownership rights should not be taken for the object of the
property right, in juridical terms, and if patrimony rights are intangible, the ownership rights should
be included in the class of intangible assets, V. Stoica, Drept civill. Drepturi reale principale, 2nd Edition,
Ed. C. H. Beck, Bucharest, 2013, (further Civil Law 2013), p. 44; M. B. Cantacuzino, Elementele dr eptului
civil, Bucharest, Ed. All, 1998, p. 34-35.
22 G. Boroi, C.A. Anghelescu, Curs de drept civil. Partea general. Conform Noului Cod civil (denumit
în continuare Curs 2011) Ed. Hamangiu, 2011, p. 74.
Patrimonies by appropriation and the personalist theory of patrimony 27
In fact, the appropriation of things or (economic) values is made under the
form of patrimony rights23.
In the operation of the “elevation” of things, the patrimony right plays an
essential, but not singular part. The patrimony right exists only if the thing likely to
be object of such right exists and through the exercise of such right or power over
the thing, it becomes an asset. It is natural, thus, that at the end of this process of
the transformation of things in juridical terms, the asset is “imbued” by the right
and the right becomes asset.
On the other hand, rights are those that represent the patrimony assets and not
the assets as objects or creations and, therefore, in juridical terms we are not
interested in the assets, but in the rights over such assets. Thus, property rights are
the representation of assets in terms of patrimony. In other words, things and
creations become things when they are subjected to a power through which they
are appropriated and such appropriation is represented in juridical and patrimony
terms under the form of rights24. Moreover, assets can be dismembered and shared
between different people when they are part of a patrimony. That’s why
patrimony rights are deemed assets, independently to their appropriation through
other patrimony rights.
3. The juridical nature of the general patrimony
Patrimony is not generally seen as an asset (res), but rather as a collection of
assets25. However, the idea to classify a general patrimony as asset, when seen
from outside, exists in the juridical literature26 and there are significant arguments
in this respect.
It has been considered that, “as form of universality, as well as universality
itself, the patrimony (typical universality) is only an asset of the holder when third
parties are concerned”27.
According to the Romanian Civil Code, the legal criteria stipulated under
art 535 of the Civil Code should be taken into account when analyzing if an asset
belongs to the general patrimony. Thus, is the (general) patrimony object of a
patrimony right?
23 Gh. Beleiu, Drept civil român, op. cit., p. 94.
24 In the common law system, assets are not held in the sense of physical appropriation, but
rights in such assets are held, in the sense of metaphysical appropriation, P. Mattews, op. cit., p. 315.
25 M. Raczynska, Parallels between the civilian separate patrimony, real subrogation and idea of property
in a trust fund, în L. Smith, The World of the Trust, Cambridge University Press, 2013, p. 475
26 Fr. Zenati, Not la decizia din 22 iunie 1993 a seciei comerciale a Casaiei franceze, în "Revue
trimestrielle de droit civil", no. 4/1994, p. 888, apud R. Rizoiu, Garania real mobiliar asupra univer-
salitilor de bunuri, în Revista Pandectele Române no. 3/2005, available online at: www.idrept.ro.
27 R. Rizoiu, Garania real mobiliar asupra universalitilor de bunuri, op. cit.,
disponibil on-line pe: www.idrept.ro.
28 LUMINIŢA TULEAŞCĂ
Following the analysis of the power exercised upon a patrimony by its holder,
it has been considered that using the criterion on the object of such patrimony right
offers a suitable answer. We note thus that the holder cannot hold a property right
upon their patrimony because the patrimony is not an asset. This is the reason why
a patrimony is inalienable28.
This assumes the patrimony is not an asset and reverses the legal operation,
under which a power is classified according to its object and not according to the
contents and effects of such power exercised upon a thing/creation.
The principle on assets’ identification is highly precise, thus the appropriation
of a thing is made through the power exercised upon it in juridical terms and it is
transformed into an asset.
From this perspective, the general patrimony belongs to its holder – natural or
legal person – who exercises their power upon their patrimony and this power
cannot be anything else but a right.
Given that the (general) patrimony is an abstract theoretical construction29, a
creation of the juridical thinking – part of the intangible realm – the holder would
have a special property right upon it; it would be a wider notion of property,
understood as “ownership of a right”30 or a right of intangible property.
The criterion regarding the (in)alienability of the general patrimony seems to
significantly threaten the asset quality of the patrimony and any other asset31, as it
is considered that only values that are not subjected to legal restrictions on
alienation can be assets.
In our opinion, when a thing is object of a patrimony right, it becomes an asset
and the (im)possibility of its alienation under a ownership deed or its encumbrance
is not a requirement regarding its acquirement or preservation of such status,
irrespective of the nature of such asset.
Even so, an inalienable asset might be object of a legal deed that doesn’t
presume a property transfer32, and the asset preserves its status as long as there is
at least one patrimony right that can be transacted.
Obviously, the alienation of a person’s general patrimony is not allowed, but it
does not trigger incongruence with its asset status since it can be object of another
patrimony right. For instance, the right to manage a patrimony can be object of a
juridical deed since a patrimony can be managed by its holder or a third party
28 A se vedea V. Stoica, Drept civil 2013, op. cit., p. 19-20.
29 P. Mattews, The trust and the civil law notion of property, în L. Smith, The World of the Trust,
op. cit., p.324.
30 Ch. Larroumet, Droit civil. Les biens. Droits réels principaux, t. II, 4e éd. Economica,
Paris, 2004, no. 18, apud. O. Ungureanu, C. Munteanu, Coninutul şi definiia dreptului de
proprietate în lumina noului Cod civil, op. cit.
31 In this respect see: I. Reghini, Ş. Diaconescu, L. Pop, Introducere în dreptul civil, op. cit., p. 386-387;
R. Rizoiu, Ipoteca asupra bunurilor incorporale: Cum urmreşti ceea ce nu vezi?, op. cit., p.13.
32 Also see G. Boroi, C.A. Anghelescu, Curs 2011, op. cit., p. 78.
Patrimonies by appropriation and the personalist theory of patrimony 29
art 792, paragraph (1) of the Civil Code33; provided that a person is empowered
under an agreement to manage the general patrimony of another person, such
patrimony is object of the right to administer as patrimony right.
Similarly, assets that are public property art 134(4) of the Constitution of
Romania are alienable and cannot be pursued, they have an economic value and
can be object of property rights (other than ownership). They can also be given for
administration or concession art 866 of the Civil Code, Law no. 213/199834 and
E.G.O no. 54/200635. This example excludes the right to use public property since
this property right is free of charge and does not focus on the economic value of
the assets making object of the patrimony right art. 866 of the Civil Code, art. 124
of Law no. 215/200136.
From a different perspective, a person’s general patrimony is deemed without
value since it is inalienable and, thus, it cannot be deemed an asset.
But the patrimony theory does not reject the existence of a positive or negative
patrimony value; on the contrary, the rule states that the general patrimony has an
intrinsic value37, independently of its inalienability.
Although all these agreements could make us classify the general patrimony as
asset (intangible and movable)38, we do not deem it to be the most correct option.
The inalienability of the general patrimony is absolute and it will survive as
long as the holder exists.
Therefore, according to the Romanian law, the general patrimony can be
deemed only as an attribute of personality (each person has a patrimony),
characteristic that explains the idea of appurtenance and excludes its classification
as asset39.
4. The juridical nature and characteristics of the patrimony by appropriation
The Civil Code defines patrimony from a personalistic approach: “Any legal or
natural person holds a patrimony that includes all the rights and debts that can be
monetized and belong to such person” art 31(1) of the Civil Code.
33 Art. 792 (1) of the Civil Code: the person empowered under an agreement or legate to manage
one or several assets, patrimonies or patrimony that do not belong to them is a trustee of other
person’s assets.
34 Law no. 213/1998 on public property and its regime, published in the Official Gazette Part I
no. 448/24.11.1998, as further amended and supplemented.
35 E.G.O no. 54/2006 on contracts for the concession of public property, published in the Official
Gazette Part I no. 569/30.06.2006, as further amended and supplemented.
36 Law no. 215/2001 on local public administration, republished in the Official Gazette Part I no.
123/20.02.2007, as further amended and supplemented.
37 C. Hamangiu şi colab., Tratat, I, op. cit., n. 1589, p. 523.
38 ”Any intangible creation of the legal thinking must be classified as intangible asset”, P.
Catala, apud. R. Rizoiu, Ipoteca bunurilor incorporale: Cum urmreşti ceea ce nu vezi?, op.
cit., available online at: www.idrept.ro.
39 See V. Stoica, Drept civil 2013, op. cit., p. 10.
30 LUMINIŢA TULEAŞCĂ
The model is from the Civil Code of Québec that defines patrimony in art 2
and states that: “Each person has a patrimony”.
As regards the classical theories on patrimony, the definition in art 31(1) of the
Civil Code is not a surprise, but a reconfirmation of our legal system’s adherence
to the subjective idea on patrimony, seen as attribute of personality.
The option has been criticized40 for having kept the dogma stipulated by the
subjective theory on patrimony that hinders this legal institution’s modernization.
It is essential that the new Civil Code allows the division of the general
patrimony into smaller patrimonies to serve a destination or purpose41; therefore,
the patrimony can be object of a division or purpose according to the law art. 31(2)
of the Civil Code.
Therefore, the general patrimony (concept of genus) is divided into smaller
patrimonies which are or not patrimonies by appropriation and the personal
patrimony, all these smaller patrimonies being included in the holder’s general
patrimony.
The patrimonies regulated by the Civil Code are: patrimony of succession
(heritage), joint assets of spouses and patrimonies by appropriation allocated for a
certain purpose.
Limiting ourselves to the goals of this study, given the current law framework,
the types of the patrimonies by appropriation, as stipulated or determined by the
law42, are: patrimonies assigned by professionals to practice a certified profession,
such as professional patrimonies (by appropriation) (i); patrimonies assigned by
economic operators to a certain economic activity as per the provisions under
E.G.O. no. 44/2008, respectively commercial patrimonies (by appropriation) (ii);
fiduciary patrimonies, respectively fiduciary patrimonies (by appropriation) (iii)
and the patrimonies of simple companies, respectively company patrimonies (by
appropriation) (iv).
The proper approach of the issues regarding the juridical nature and
characteristics of patrimonies by appropriation involves accepting the distinction
between the two juridical concepts: general patrimony and patrimony by
appropriation; the latter is not a patrimony in the classical meaning of the concept
that applies to the general patrimony. There is not, in essence, identity between the
general patrimony and the patrimonies by appropriation.
40 A. Oprea, Observaii privind patrimoniul de afectaiune în dreptul românesc, în în R. Bufan,
R. Catan, L. Bercea, Dreptul comercial la confluena a dou coduri, Ed. Universul Juridic, 2012, p. 195.
41 In the same respect see V. Stoica, Drept Civil, op. cit., p. 11; A.A. Chiş, Obiectul crii funciare în
lumina Noului Cod civil - dispoziii speciale privind înscrierea drepturilor tabulare, in Revista Român de
Drept Privat nr. 3/2012, n. 2.1.3., available online at: www.idrept.ro.
42 According to art 31(3) C. civ: Patrimonies by appropriation are fiducia patrimonies, created
according to the provisions under title IV of book III, those assigned to practice a certified profession
and other patrimonies determined according to the law.
Patrimonies by appropriation and the personalist theory of patrimony 31
The patrimony by appropriation is not original, but derived from the general
one, through the will of its holder according to the law art 31 of the Civil Code.43
The general patrimony is, therefore, the creation of the law while the
patrimony by appropriation is the creation of the general patrimony’s holder.
That means that the existence of the patrimonies by appropriation is not
indissolubly connected to a person as the person can freely decide if they create or
not a patrimony by appropriation. This is called potestative right.
Thus, the patrimony by appropriation derives from the dogma on the general
patrimony and is not an attribute of personality.
Given that it is not an attribute of personality, the patrimony by appropriation
does not take entirely over the genetic matrix, the DNA of the parent patrimony,
respectively the legal nature and characteristics of the general patrimony.
The classification of an asset from the patrimony by appropriation must not be
fully subordinated to the legal regime of the general patrimony because, although
it is a “patrimony in miniature”44, it enjoys a own legal regime, highly different
from those of the general patrimony in which it is included or, in other words,
from which it is created by the holder.
The main characteristic of the patrimony by appropriation, taken over from the
general patrimony, is that the patrimony by appropriation is a juridical
universality.
The patrimony by appropriation appears as a “fraction of universality”, a legal
universality with rights and obligations connected by their purpose, created by the
exclusive will of the general patrimony’s holder and acknowledged by the law.
But the patrimony by appropriation is not only a legal university, but an asset,
as well. And we say this based on the legal criterion stipulated under art 535 of the
Civil Code, according to which a thing, creation, economic value becomes an asset
when it is object of a patrimony right.
Created under the law, through the will of the general patrimony’s holder, as
stipulated by the law, the patrimony by appropriation is a juridical creation with
economic value and which is object of a patrimony right.
It is acceptable, thus, to say that the patrimony by appropriation is an asset
when it is object of a patrimony right. For instance, the patrimony by appropriation
can be object of a property right, administration right etc.
Therefore, the patrimony by appropriation is a movable asset; art 539(1) of the
Civil Code and art 542(2) of the Civil Code stipulate various criteria in this respect:
43 Art 31 of the Civil Code, paragraph (1): any legal or natural person holds a patrimony that
includes all rights and debts that can be monetized and belong to such person; paragraph (2): it can be
object of a division or appropriation only according to the law.
44 The term comes from H. Gazin, Essai critique sur la notion du patrimoine dans la doctrine classique,
Paris, Librairie nouvelle de droit et de jurisprudence, 1910, p. 254 şi urm., apud. Alexandra Popovici,
Le patrimoine d'affectation. Nature, culture, rupture, thesis LL. M., 2012, p. 17, available online at:
www.theses.ulaval.ca/2012/29058/29058.pdf (last view on 21.09.2015).
32 LUMINIŢA TULEAŞCĂ
the assets that are not immovable according to the law are movable assets.
Moreover, since it is a legal creation, the patrimony by appropriation is an
intangible movable asset45.
But the asset quality of the patrimony by appropriation is highly related to its
in(alienability) and we will maintain this requirement without denying the ideas
highlighted in the section on the general patrimony.
We showed in a previous study46 that the patrimony by appropriation can be
alienated, as legal universality, by means of deeds among living people and we
advocate this idea based on those arguments.
Moreover, the Romanian law does not allow for the general patrimony to be
alienated during the life of its holder given the inseparable connection between
person and patrimony and this is what triggers the universal inalienability of the
patrimony by means of deeds between living people47.
But such indestructible connection does not exist between holder and their
patrimony by appropriation, as the latter is not an attribute of personality and,
thus, it can be alienated by means of deeds among living people.
Therefore, patrimonies by appropriation are not (a priori) inalienable assets
and, as per the provisions of art 2329(2) of the Civil Code related to art 629(3) of the
Civil Code, they can be pursued.
But the inalienability and the restriction to pursue an asset can be stipulated
under the law, an agreement or will, save for the unilateral legal deeds art 2329 of
the Civil Code related to art 627(1) of the Civil Code; even for such exceptions, the
restriction to pursue an asset operates only for the benefit of the asset’s acquirer.
That means that if the professional and commercial patrimonies are created
based on a unilateral expression of will, respectively unilateral legal deeds, the
holder cannot protect their patrimony by appropriation under a unilateral
statement of inalienability and cannot create a restriction on the pursuit of the
assets because the Romanian law does not acknowledge the validity of such
expression of will.
However, as effect of the creation of a patrimony by appropriation, the
personal creditors of its debtors and/or the creditors whose claims do not arise
from such patrimony by appropriation, cannot pursue the assets from such
patrimony by appropriation for a shorter or longer period; conversely, the
45 In the same respect see St. D. Crpenaru, Tratat de drept comercial român, 4th edition, updated,
Ed. Universul Juridic, 2014, p. 96-97. The distinguished expert assimilates the stock-in-trade to the
patrimony by appropriation and decides that the latter is an intangible movable asset in legal terms.
46 See L. Tuleaşc, Patrimonul de afectaiune – Instrument în derularea afacerilor, in Revista Român
de Dreptul Afacerilor no. 6/2014, available online at www.juridice.ro; Also see A. Oprea, Observaii
privind patrimoniul de afectaiune în dreptul românesc, in R. Bufan, R. Catan, L. Bercea, Dreptul comercial
la confluena a dou coduri, Ed. Universul Juridic, 2013, p. 206.
47 A patrimony is a reality that accompanies someone during their existence, but upon the death
of the holder, the connection between person and patrimony disappears and it will be passed along to
the deceased’s heirs.
Patrimonies by appropriation and the personalist theory of patrimony 33
creditors of the patrimony by appropriation are under a temporary restriction (for
commercial patrimonies) or definite restriction (for professional and fiduciary
patrimonies) to pursue the assets from the personal patrimony of the holder of the
patrimony by appropriation.
The case of the fiduciary patrimony is totally different. It is usually created
under a fiducia contract, which allows, de plano, an inalienability clause and a
restriction to pursue assets.
As a general rule, the inalienability clause is implicit in such contract because
the trustee must pass along to the beneficiary, in the future, the ownership over the
fiduciary patrimony art 627. (4) of the Civil Code.
Therefore, the fiduciary patrimony is inalienable and cannot be pursued as
long as it is part of the trustee’s patrimony.
The principle on the patrimony’s inalienability refers, without doubt, only to
the general patrimony in its entirety art 31(1) of the Civil Code, excluding
patrimonies by appropriation48.
In conclusion, the patrimony by appropriation has a dualistic legal nature,
being a legal universality and an intangible movable asset.
5. The impact on the subjectivist patrimony theory triggered by the
regulation of patrimonies by appropriation
Given the nature and characteristics of the patrimonies by appropriation, in
general, and of those considered atypical, in particular, the axiomatic principles
from the subjectivist theory on patrimony, enacted in the Romanian law, seem to
lose their original power.
Thus, patrimony divisibility and the reality of the patrimonies by
appropriation have determined the doctrine to say that the new Romanian Civil
Code has enacted exceptions from the principle of the patrimony uniqueness49.
Without rejecting this opinion, we deem that the answer to the issue of the
general patrimony’s uniqueness is given from our perspective on patrimonies.
If we consider the patrimonies by appropriation as being separate and
independent from the source of their existence, i.e. the general patrimony, and will
consider them as patrimonies reproducing the “parent patrimony”, the only
48 Adverse opinion in Irina Sferdian, Patrimoniul profesional individual afectat desf-
şurrii unei profesii liberale în reglementarea Codului Civil (Legea nr. 287/2009), in Revista
Dreptul no. 7/2012, p. 50; E. Chelaru, in Baias et all., Noul Cod civil, op. cit., p. 35.
49 In this respect, see G. Piperea, Drept Comercial. Întreprinderea, Editura C.H. Beck,
2012, p. 60; R.-M. Popescu, E. Oprina, Fiducia şi implicaiile acesteia asupra executrii silite,
Revista Român de Executare Silit no. 4/ 2011, p. 72; R. Catan, Drept Comercial. În
PowerPoint, Ed. Universul Juridic, Bucharest, 2013, p. 97; A. Oprea, op. cit., p. 201; For the
same opinion related to the Civil Code of Québec, see: Macdonald, Re-conceiving the
Symbols of Property: Universalities, Interests and other Heresies, McGill Law Journal, vol. 39,
1994, p. 776-777, available in web site: http://lawjournal. mcgill.ca/documents/39.4.
Macdonald.pdf.
34 LUMINIŢA TULEAŞCĂ
conclusion is to admit the existence of such exceptions from the principle of the
patrimony uniqueness.
But we cannot assimilate patrimonies by appropriation to a general patrimony
as the differences between them are significant and lead to separate legal regimes
and, thus, in a restrictive construal, we will analyze the unique nature of
patrimony solely from the perspective of the general patrimony. In a wider sense,
we can consider that someone can have several patrimonies – a general patrimony
and one or several patrimonies by appropriation.
We will have, however, a totally different answer if we analyze the patrimony
by appropriation as a legal creation, which does not reproduce the pattern of the
general patrimony, as part of it – more or less independent (according to the type
of patrimony by appropriation and the will of its holder), with own characteristics,
different from those of the “parent patrimony”.
From this perspective, the patrimonies by appropriation, whatever their type,
are not exceptions from the unique nature of the general patrimony.
The legal enactment of the patrimony’s divisibility is relevant for the unitary
nature of patrimony50, the two characteristics being incongruent and the unitary
nature being removed from the characteristics of the general patrimony. The
consequences of giving up the principle of the general patrimony’s unity mainly
impact its function of joint security for creditors. Here appears a specialization of
the general pledge of the creditors of the debtor as holder of patrimonies.51
Another dogma of our law is that only legal or natural persons have a
patrimony. In consequence, there cannot be a patrimony without a holder.
In this respect, the Romanian law provides examples of patrimonies by
appropriation that can be deemed atypical in terms of their ownership.
We refer here to the patrimony of a small company and the patrimony of
family businesses whose regulation launched the discussion on how the objective,
modern theory on the patrimony without holder is perceived since its creation by
the German theorists Brinz and Bekker at the end of the 19th century. According to
its authors, the existence of patrimonies, legal universalities, is accepted without a
person or legal personification.52
50 E. Chelaru in Flavius Baias et all, Noul Cod Civil, op. cit., p. 35; I. Sferidan, Patrimoniul
profesional individual afectat desfaşurrii unei profesii liberale în reglementarea Codului civil
(Legea nr. 287/2009), Revista Dreptul no. 7/2012, p. 44; In order to preserve the unitary
nature of patrimony see: V. Stoica, Patrimoniul de afectaiune – continuitate şi reforma,
Revista Român de Drept Privat no. 2/2013, p. 22;
51 See, L. Tuleaşc, Executarea patrimoniilor de afectaiune, Revista Român de Executare Silit
no. 2/2015; L. Tuleaşc, Patrimoniul de afectaiune – instrument în derularea afacerilor, op. cit.
52 Al. Popovici, Le patrimoine d'affectation. Nature, culture, rupture, thesis LL. M., 2012, p. 17,
available online at: www.theses.ulaval.ca/2012/29058/29058.pdf (last view on 21.09.2015); see
C. Bouchard, La personnalité morale demythifiée, Ed. Les Presses de l Université Laval, Québec, 1997,
p. 215-216, available online at: https://books.google.ro/books?id=VPw7d8NLRPIC&pg=PA216&lpg=
PA216&dq=brinz+et+bekker&source=bl&ots=GhfqA4hNhd&sig=em30f5kWyrKcOLAPfAE046bCri0
&hl=ro&sa=X&ved=0CCAQ6AEwAGoVChMIjaSLr4uIyAIVxZ1yCh3jpwqU#v=onepage&q=brinz%
20et%20bekker&f=false
Patrimonies by appropriation and the personalist theory of patrimony 35
We do not believe that the new Civil Code creates breaches in the subjectivist
theory of patrimony with regard to the ownership of the general patrimony
because, as indicated, there is no identity between the patrimony by appropriation
and the general patrimony. Moreover, the type of power exercised upon such
patrimonies is different.
Secondly, in our opinion, the patrimony of a simple company and family
businesses are joint patrimonies by appropriation and the shareholders,
respectively the members of the family business are the co-holders of such
patrimonies by appropriation.
The discussion regarding the ownership of the company patrimony by
appropriation assigned for the activity of a simple company starts from a brief
presentation of the legal regime of such collective entity.
A simple company is established under a company contract by means of
which: “two or more people undertake to collaborate to carry out an activity and to
have a contribution to it in money, goods, knowledge or services, in order to share
benefits and to use the profit that might result” art 1881(1) of the Civil Code.
A simple company does not have its own patrimony or legal personality, but it
has many of the elements of a law subject: name, share capital, social patrimony,
own bodies: shareholder assembly and administrators, tax attribute and it is
registered with the tax authorities.
Given its structure and operation, a simple company is more than a company
contract; it is an “operational entity”53 with “remnants of a legal personality”54.
As regards the (in)existence of a company patrimony by appropriation – a
patrimony assigned for the operation of a simple company – the alternative use of
the phrases – “joint assets of the shareholders’, “company assets” and “social
patrimony” – might create confusion.
The patrimony of a simple company is, however, but a joint patrimony by
appropriation created to be used by the simple company55, independent patrimony
under the common property of shareholders for the reasons to be detailed below.
Firstly, the legal regime of contributions in-kind to the share capital art 1896 of
the Civil Code – art 1897 of the Civil Code show the transfer of the ownership
right or other property right over the assets brought by shareholders as
contribution, respectively a transfer of some assets from the shareholders’
patrimony into another (company) patrimony assigned for the company’s
operation.
It is important to say that art 1883(1), 2nd thesis of the Civil Code, stipulates
that the contributions to a simple company’s patrimony become the joint property
53 See S. Angheni, Raporturile juridice dintre profesioniştii-comerciani, Ed. C.H. Beck, Bucharest,
2014, p. 119.
54 Gh. Piperea in St. D. Crpenaru, Gh. Piperea, S. David, Legea societilor, Comentariu pe articole,
Ed. 5, Ed. C.H. Beck, 2014, p. 43.
55 In the same respect, see Gh. Piperea în Fl. A. Baias şi colab., Noul Cod civil, op. cit., p. 1911.
36 LUMINIŢA TULEAŞCĂ
of the shareholders, save for when they have expressly agreed that they will be
used jointly and the rules say that the share of each shareholder regarding the loss
and benefits is proportional to their contribution to the share capital art 1902(2) of
the Civil Code.
Secondly, the assets brought as contribution are “share assets” or “company
assets”, namely they are used for the company’s benefit art 1904 of the Civil
Code. These phrases also suggest the existence of a distinct patrimony that is used
for the company’s operations.
Moreover, the debts of third parties to the company cannot be compensates
with the debts of a shareholders to such third party art 1907(3) of the Civil Code;
this also suggests the existence of the company patrimony, distinctly from the
patrimonies of the company’s shareholders.
Moreover, the company creditors56 will first pursue “the joint assets of the
shareholders”, respectively the assets from the share patrimony and, secondly, the
personal assets of the shareholders; the shareholders can protect themselves from
the direct pursuit of the company creditors.
Therefore, the shareholders are liable with their personal patrimony for the
company’s liabilities, secondarily and proportionally to their contribution to the
share capital only if the company creditors have not recovered their money from
the company’s assets (art 1920-art 1947).
Following the segregation of patrimonies, the shareholders’ personal creditors
cannot pursue the assets of the company patrimony art 1920(2) of the Civil Code.
They can only pursue the share of the shareholder-debtor up to the liquidation of
the company patrimony or the loss of the shareholder position.
When the company is liquidated, the company assets will be transformed into
money to pay company debts. The net asset will be used to reimburse the
shareholders’ contributions to the share capital. The difference is profit and will be
distributed to shareholders proportionally to each shareholder’s share of benefits,
respectively the contribution to the share capital, save for adverse provisions under
the company agreement or shareholder decision. The company assets that are not
sold will be distributed in-kind according to the rules on the distribution of
joint assets.
And not lastly, art 1946(3) of the Civil Code57 stipulates that when a simple
company is liquidated, the asset used as contribution (by means of ownership
transfer) can be returned if the asset is still part of the patrimony (appropriated for
the activity of the simple company). Thus, the distinct patrimony used for the
company’s activity is expressly acknowledged.
56 The Civil Code also uses an improper phrase: “joint creditors of the shareholders” referring to
the simple company’s creditors.
57 Art. 1946 (3) C. civ.: If the asset brought as contribution is still in the patrimony, it will be
returned in-kind, upon the request of the shareholder, provided that a certain sum is paid if
necessary.
Patrimonies by appropriation and the personalist theory of patrimony 37
Therefore, the company patrimony of a simple company has all the
characteristics of an independent patrimony appropriated for the activity of the
simple company and we face a patrimony by appropriation – joint property of the
company’s shareholders, each shareholder owning a share proportionally to their
contribution to the share capital, respectively to the company patrimony.
In conclusion, the company patrimony is a joint patrimony by appropriation of
the simple company’s shareholders.
As regards the patrimony by appropriation of a family-owned enterprise the
issues of its ownership are similar to that of the company patrimony.
As per E.G.O no. 44/200858, entrepreneurs working as self-employed
professionals, owners of individual companies or members of a family-owned
enterprise, can set up patrimonies by appropriation for their activities, distinctly
from the general pledges of their personal creditors.
All patrimonies by appropriation stipulated by E.G.O. no. 44/2008 are
patrimonies by appropriation (commercial patrimonies) and, among them, only
the patrimony by appropriation of a family-owned enterprise poses an ownership
issue since a family-owned enterprise, composed of 2 or more members of the
same family, is not a legal person art 30(1) of E.G.O. no. 44/2008.
Thus, a family-owned enterprise is a functional entity, without own
patrimony, but, under the articles of incorporation or addendum, its members
can stipulate the formation of a patrimony by appropriation art 30(2) of E.G.O.
no. 44/2008 and the shares of each member to the formation of such patrimony.
For the obligations undertaken while operating the family-owned enterprise,
its members are jointly and indivisibly liable with the patrimony by appropriation
if it exists and, secondarily, with their entire patrimony, as per the shares to the
company’s net income art 31 of E.G.O. no. 44/2008.
Moreover, the definition of the family-owned enterprise’s patrimony by
appropriation (commercial patrimony) clearly stipulates that it belongs to the
members of the family-owned business: the patrimony by appropriation is “all the
assets, rights and obligations (…) of the family-owned enterprise’s members,
allotted for an economic operation, formed as distinct portions of the patrimony
(…) of the family-owned enterprise’s members, separated from the general pledge
of their personal creditors” art 2(j) of E.G.O. no. 44/2008. Obviously, the law
stipulates both the segregation of the shareholder’s patrimonies and of their
creditors.
Consequently, the patrimony by appropriation of a family-owned enterprise is
not owned by such company and it is not its property. It is formed by the
enterprise’s members and is allotted for the activity of the family-owned
enterprise.
58 E.G.O. no.44/2008 on the economic activities carried out by self-employed natural persons,
individual companies and family-owned enterprise, published in the Official Gazette Part I no. l 328
of April 25, 2008, as further amended and supplemented.
38 LUMINIŢA TULEAŞCĂ
Therefore, the patrimony by appropriation of a family-owned enterprise is a
joint patrimony (by appropriation) that includes both the initial contributions of its
members and the assets acquired for the enterprise’s activity59. The members of the
family-owned enterprise have a joint ownership right over the common
patrimony, based on the shares mutually agreed upon under the articles of
association or addendum.
In conclusion, the patrimony of the family-owned enterprise and of the simple
company60 are joint patrimonies by appropriation61,”jointly owned by the holders
of two or more distinct patrimonies”62, in which the shareholders have joint
ownership on shares and each shareholder is the owner of a share from the
patrimony by appropriation art 623(1) of the Civil Code.
None of the cases analyzed above corresponds to the formation of a patrimony
(by appropriation) without holder63 as gap in the subjective theory of the
patrimony.
Moreover, the fiduciary patrimony – patrimony by appropriation with a
highly special configuration – has a holder. The provisions of art 773, final thesis of
the Civil Code, are explicit in this respect, respectively the fiduciary patrimony is
an independent patrimony in the general patrimony of the trustee. Thus, the
holder of the fiduciary patrimony is the trustee, independently of type of fiduciary
property: “attenuated and imperfect properties”64 or conditioned property.
And not lastly, the right to alienate patrimonies by appropriation under deeds
between living people does not affect and does not create a breach in the subjective
theory of the general patrimony seen as attribute of personality that justifies its
inalienability, given that patrimonies by appropriation do not take over this
characteristic of the general patrimony.
Conclusions
The patrimony by appropriation is not a general patrimony, but a new creation
whose existence is decided by the holder of the general patrimony in the cases
stipulated by the law.
59 Art 32(3) of E.G.O. no. 44/2008: ”The deeds, under which assets are acquired for the activity of
the family-owned enterprise, are concluded by a representative (…). The acquired assets are the joint
property of the members as per the shares stipulated under art 29(1) or art 30 (3), as the case may be”.
60 Entities without legal personality, as per the provisions of art 1892(1) of the Civil Code and
art 30(1) of E.G.O. no. 44/2008.
61 The joint professional patrimony is a legal type of the patrimony. As regards the distinction
between the types of ownership and types of patrimony, see V. Stoica, Drept civil 2013, op. cit., p. 278.
62 See V. Stoica, Drept civil 2013, op. cit., p. 20-21 and p. 278.
63 For a different opinion, see A. Oprea, op. cit., n. 20, p. 203.
64 F. Barriere, La reception du trust au travers de la fiducie, Ed. Litec, Paris, 2004, no. 412, apud.
M. Harosa, Scurte consideraii asupra fiduciei în reglementarea noului Cod civil, Revista Român de
Dreptul Afacerilor no. 9/2013, n. 3, available online at: www.idrept.ro.
Patrimonies by appropriation and the personalist theory of patrimony 39
It means that the existence of the patrimonies by appropriation is not
indissolubly related to a person, provided that a person is free to decide if they
form or not a patrimony by appropriation. This is a potestative right.
As it is not an attribute of personality, the patrimony by appropriation does
not take over the genetic matrix – the DNA – of the “parent patrimony”,
respectively the legal nature and characteristics of the general patrimony and, it
separates itself from the main dogma of the subjective theory of patrimony.
Based on such argument, we can determine and accept both the dual legal
nature of the patrimony by appropriation: legal universality and intangible
movable asset and its special characteristics, among which its alienability.
The changes occurred with the regulation of the patrimonies by appropriation
on the theory of patrimony are substantial, but they are not breaches in the
subjectivist theory of the patrimony as regards its ownership and uniqueness, but
only in terms of its unitary nature.
The special nature of the patrimony by appropriation justifies its separation
from the theories of the general patrimony, its independency and specialization.
”This study has been prepared with the support of the funding from the
doctoral and post-doctoral studies project: “Doctoral and post-doctoral studies –
Horizon 2020: promoting the national interest by excellence, competitiveness and
responsibility in the Romanian fundamental and applied scientific research”
POSDRU Contract /159/1.5/S/140106.
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