Simulation According to the New Romanian Civil Code

• Author: Tita-Nicolescu, G.
• Position: Law Faculty, Transilvania University of Brasov
• Pages: 95-102

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 5 (54) No. 2 - 2012

SIMULATION ACCORDING TO THE

NEW ROMANIAN CIVIL CODE

G. TIXA-NICOLESCU1

Abstract: Simulation arises when for two parties and for the same legal

relationship there are two legal acts (more precisely two variants of the same

legal act) that have different contents, especially essential provisions. One

of the two juridical acts is referred to as a public act or the apparent act

(but, in fact, simulated), being stated as such by the parties and reflecting

the ”official”( but false) variant of the agreement between the parties, as it

is, reached in front of the Notary, of the lawyer or a private signature act.

The other mentioned act is the secret act (referred to as the secret

agreement), which represents, in fact, the true agreement between the

parties, but it is not included in an official act, being known only by the

parties.

Key words: simulation, fictive act, disguise, public deed, apparent act.

1 Law Faculty, Transilvania University of Braşov.

1. The meaning of simulation. The terms

of public act and secret act

Simulation, however, assumes that the

secret act is concluded, as constantly decided

in the juridical practice, before or at least

concomitantly with the apparent act [1].

Consequently hiding th e truth does not

automatically represent a fraud. The state

tolerates the simulation provided that the

secret act does not aim at eluding certain

interdictions or at avoiding the payment of

the taxes. This is the reason for which

simulation is accepted, and moreover, its

effects are regulated by the law, for

avoiding all the doubts. We may state that

in the Romanian law, all the persons have

the right to simulate a juridical act, except

for the case when the objective of the

simulation is to fraud, to infringe (even if

our personal opinion is that the law should

not encourage any kind of simulation,

annulling both the public act and also the

secret act). The lawmaker is preoccupied

with the protection of the rights and the

interests of the good-faith third parties.

According to the Canadian Law, for avoid

the debates on this theme, the juridical

literature refers to the simulation as the

legal simulation, for the purpose of

avoiding the difference between the cases

when the simulation is used for fraud goals

but also to emphasize that the simulated

act is the one that observes the legal

provisions [2].

According to the recent Romanian

doctrine, simulation is regarded as a

complex juridical operation that assumes

the presence of three specific conditions:

the existence of the secret act, the

existence of the public act and the

existence of the simul ated agree ment [3].

The author [3] speaks, concerning this

aspect, also about the condition of the