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
SUMMARY

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 follows general aspects and exceptions concerning the right of retention, aspects intending to draw the... (see full summary)

 
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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.

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