Under the new civil code: the sale contract is translated property or creator only of obligations?

• Author: Liviu Stanciulescu
• Position: Professor, Ph.D., Faculty of Law, 'Nicolae Titulescu' University, Bucharest, Romania
• Pages: 26-31

26 Lex ET Scientia. Juridical Series

LESIJ NO. XIX, VOL. 1/2012

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UNDER THE NEW CIVIL CODE: THE SALE CONTRACT IS

TRANSLATED PROPERTY OR CREATOR ONLY OF OBLIGATIONS?

Liviu STNCIULESCU*

Abstract

According to art. 1650, paragraph. 1, of the Civil Code, "The sale is the contract that the

seller transmits or, where appropriate, seek to transmit the property of an asset to the buyer, for a

price which the buyer is obliged to pay" The dispositions of the 2011 civil code suggests that

compared to the time of transfer of ownership, the contract may have different legal natur e: creative

translative property or obligations. Thus, transfer of ownership may be immediately and in this case,

as occurs or may be postponed (conclusion of the contract) and in this case, is an obligation of the

seller. For example, art. 1674 of Civil Code states that "the property is" shifting "by right to the

buyer" and "General Provisions" of art. 1672. paragraph 1 and art. 1673. paragraph 1 of Civil Code

provides that "The seller is obliged to transmit the buyer the ownership of the sold property ". Please

note that until the appearance of the Civil Code 2011, the sale was widely known as "translational

property" and a possible shift in the category of contracts creating obligations would produce

important consequences for the concept (and related institutions). On the background issues above,

we consider that the presentation of opinions and arguments in their support could be beneficial.

Keywords: seller, property transfers, ownership, obligations, contract

a) Transfer of ownership: the right or the responsibility of the seller?

The sale (that any legal act) legal effect, designed to enforce their interests. As derived

directly from the contract (of law) or to the parties, the effects of the contract is divided into: effects

of legal and personal effects. Thus, the sales contract has a double effect: the transfer of ownership

from the seller to the buyer and the creation of obligations (to the parties).

Given the text of the law, that "the seller shall provide or, where appropriate, the buyer is

obliged to send a good property" (Art. 1650 para. 1 Civil Code) would seem that the legislature in

2011 is only concerned with time transfer of ownership.

Without diminishing the role of time in which ownership is transferred from seller to buyer, at

least as important to consider and determine the real spring that goes right to the buyer.

Clarification inconsistency is justified by the New Civil Code provisions. Thus, according to

art. Paragraph 1650. A Civil Code, "the seller send" or seller "is obliged to submit property" (a

transfer of ownership means that person is a seller's obligation), in turn, according to art. 1674 Civil

Code, "property is shifting the right buyer at the time of conclusion" and art. Paragraph 1683. 3 Civil

Code, "property is shifting the right buyer at the time of acquiring the property by the seller" (transfer

of ownership is done right, the effect of the agreement will, even when the seller becomes the owner

after the contract).

Next, we present briefly the transfer of ownership characteristics in the contract of sale, both

in terms of mechanisms that produce it, but the implications when it is done.

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* Professor, Ph.D., Faculty of Law, “Nicolae Titulescu” University, Buchares t, Romania (e-mail:

stanciulescu.liviu@gmail.com)