Theoretical and practical considerations regarding the right of retention

• Author: Maria Magdalena Bârsan - Maria Magdalena Cardis
• Position: Faculty of Law, Transilvania University of Brasov, Romania - Faculty of Law, Transilvania University of Brasov, Romania
• Pages: 79-90

Theoretical and practical considerations

regarding the right of retention

Lecturer Maria Magdalena BÂRSAN

1

Master student Maria Magdalena CARDIŞ

2

Abstract

The right of retention has in the current legislation his own regulation, which finds

its sources in jurisprudence and doctrine. The necessity of regulating this right comes from

its practical utility, its efficiency as a legal mechanism being also taken into consideration.

The present article follo ws general aspects and exceptions concerning the right of

retention, a spects intending to draw the outlines of the meaning of the right of retention.

Furthermore, the domain of enforcement of the right of retention has been taken into

consideration, starting from specific legal d isposition, which are derogatory from the

ordinary law.

Keywords: right of retention, guarantee, exception, abusive exercise

JEL Classification: K11, K40

1. Introduction

Until the enforcement of the Law no. 287 regarding the Civil Code, the

right of retention didn’t have a regulation of its own, being a creation of the case

law and of the doctrine. From a legal point of view, this right was acknowledged

just in certain domains, as for example, that of the contract of mandate. The

introduction of the right of retention as a guarantee of the fulfillment of the

obligations is founded, among others, on the fact that, according to the Explanatory

Statement of the Civil Code, ‘the amendments reported to the present regulation,

from the sources of obligations up to the forced execution of them and their way of

being guaranteed are substantial and, concerning certain aspects, even radical’

3

. In

this context it has been appreciated that ‘the right of retention reveals itself today as

an institution of which outlines are imprecise; to this situation massively

contributed a regulation to whom it is to be reproached that it doesn’t contain legal

dispositions do draft the general application pattern of the right of retention’

4

.

1

Maria M agdalena Bârsan – Faculty o f Law, Transilvania University of Brasov, Ro mania,

magdalena_maria_neagu@yahoo.com

2

Maria Magdalena Cardiș - Faculty of Law, Transilvania University of Brasov, Romania,

cardis.magda@yahoo.com

3

The Explanatory Statement of the Law no. 287/2009 regarding the Civil Code, available on

http://www.cdep.ro/proiecte/2010/ 800/50/0/em850.pdf, consulted last time on February 1, 2017

4

Stelian Ioan Vidu, The right of retention in the legal civil reports, Universul Juridic Publishing

House, Bucharest, 2010, p. 12.