THEORETICAL ASPECTS REGARDING THE OBLIGATION AS

PROVIDED BY THE ROMANIAN LEGISLATION AND THE DOCTRINE

Bogdan NAZAT*

Abstract:
Taking into consideration the latest amendments of the Romanian civil legislation performed through the Civil code of
2009, as further amended, I consider useful to provide the lecturers with a theoretical overview over one of the most important
institution in our legal environment, i.e. the obligation.
The analyse will start with an introduction comprising the definition of the obligation as provided by the Civil code aand
the doctrina, will continue with the structure of the obligation and, further, will offer an overview of its sources, identifying,
inter alia, the articles in the Civil code where such sources are regulated (e.g. contract, law).
In the end, the paper will provide a doctrinaire classification of the obligation, outlining the main categories of the
obligations.

Keywords: obligation, agreement, unilateral, civil, Civil code, legislation, bilateral, creditor, debtor.

I. INTRODUCTION. THE DEFINITION OF

THE OBLIGATION. LEGAL REGULATION
As regards the scope of this paper, it is
undoubted that, even if the current legislation
represents an evolution as regards the obligation, the
doctrine and the jurisprudence, especially the ones
before the Civil code of 2009, are still actual.
Therefore, the scope of this paper is to envisage the
general aspects related to the obligation, as such are
revealed, mainly, by the legislation and the legal
writers.
At the beginning, mentions hould be made that
the obligation is an old institution, a definition being
provided also by the Institutions of Justinian.
Therefore, it was stated that the obligation is a legal
relationship, under which we are compelled to fulfil a
duty according to the law of our borough (lat.
obligatio est iuris vinculum, quo necessitate
adstringimur alicuius solvendae rei, secundum
nostrae civitatis iura)1.
In the current regulation, the obligation is
defined under Article 1164 of the Civil code2 as being
that lawful relationship, whereby the debtor is bound
to fulfil a duty towards the creditor, and the latter is
entitled to obtain the fulfillmenty of due duty.
Until the current Civil code becomes effective,
given that the former regulation (i.e. Romanian Civil

code of 1864) did not provide a definition of the

obligation, this task was assumed by the legal writers.
Thus, obligation was defined, lato sensu, as
being that legal relationship whereby the active
subject, called creditor, has the right to request from
the passive subject, called debtor who has the
corresponding duty to give, to do or to not do
something, subject to the sanction of state compulsion,
unless the action is performed willingly 3.
Moreover, after the new legislation entered into
force, the legal writers offered doctrinaire definition of
the obligation, being stated that the civil obligation is
the legal relationship whereby a party, called creditor,
has the right to request from the other party, called
debtor, to fulfil the duty or duties they have, subject to
the sanction of state compulsion4.
Based on the above mentioned, we may say that
obligation is a private legal relationship involving the
existence of two natural or legal persons: the creditor,
standing for the active component of the obligation
(holding a right to claim) and the debtor and its duty
related to the creditors right. Such duty of the debtor
represents the passive component of the obligation.
Nowadays, it was stated5 that the term
obligation has three meanings. Thus, besides the lato
sensu meaning aforementioned, stricto sensu, the
obligation is considered as being that duty of the
passive subject, the debtor. The third meaning of the
term obligation is that the obligation represents the
document itself, incorporating the claim right and the

Assistant Lecturer, PhD Candidate, Faculty of Law, Nicolae Titulescu University of Bucharest (e-mail: bogdan.nazat@sinescunazat.ro; bogdan.nazat@gmail.com).
1
Alin-Adrian Moise, The New Civil Code. Comments per articles. Art. 1-2664, Coordinators Fl. A. Baias, E. Chelaru, R. Constantinovici,
I. Macovei, C.H. Beck Publishing, 2012, Bucharest, p. 1215;
2
The Law no. 287/2009 on the Civil Code, published in the Official Gazette of Romania No. 505/2011;
3
C. Sttescu, C. Brsan, Civil Law.General Theory of Obligations, ninth edition, revised and supplemented, Hamangiu Publishing, 2008,
Bucharest, p. 1;
4
Liviu Pop, Ionu-Florin Popa, Stelian Ioan Vidu, Basic Civil Law Treatise. Obligations Pursuant to the New Civil Code, Universul Juridic
Publishing, 2012, Bucharest, p. 12;
5
Coordinator Marilena Uliescu, The new Civil code. Studies and comments. IIIrd Volume. Ist Part. Vth Book. About obligations (Art. 11641649), Universul Juridic Publishing, Bucharest, 2014, p. 15;

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Bogdan NAZAT
related obligation, namely the obligation to pay the
said claim.
Taking into consideration the above mentioned,
this paper envisaged to offer the reader a concise and
clear overview of the institution by analysing the legal
provisions of the Civil code, with some references to
the existent legal writings.

II.
THE
OBLIGATION

STRUCTURE

OF

THE

Representing a legal relationship, the obligation

has three principal elements in its structure: (i) the
subjects, (ii) the content and (iii) the object.
In our doctrine, there are opinions based on
which the structure comprises also a forth element, i.e.
the sanction, which will be also analysed in this paper.
In its current form, Article 1164 Civil code does
not refer to this fourth element and, based on this, some
legal writers considered that this was due to the
existence of that category of obligations known as
imperfect civil (or natural) obligations. This category
of obligation is characterized by the fact that the
creditor is not able to obtain the performance of its
obligation by the means of execution, even if the
payment is still due6.
1. The subjects of the obligation.
Called also the parties of the obligational
relationship, the subjects may be any natural or legal
persons, provided that they act in accordance with the
legal provisions, as well as the state when taking part
directly in civil legal relationships.
Unlike in the case of bilateral obligations, in case
of unilateral obligations, a party is solely a creditor and
the other party is solely a debtor. For example, in the
case of the donation agreement free of burdens, the
granter is the debtor, while the grantee is the creditor.
2. The content of the obligation.
The content of the obligational relationship
consists of the claim right of the creditor and the
obligation related to this right encumbering to the
debtor.
In other words, the creditors right consists in the
right to request from the debtor the fulfillment of a
certain duty, which may consist of giving, doing or not
doing something, while the debtors obligation
consists in the duty to execute the action to which is
bound (e.g. handing over some property, paying an
amount of money, delivering a service, executing
some work, etc.).
As regards their patrimony, the creditors claim
right is among its active side of the patrimony, while
the debtors duty is in the passive side of its patrimony,
6

hereby resulting the patrimonial content of the

obligation.
3. The object of the obligation.
The object of the obligational relationship
consists of the action or inaction the debtor is obliged
to and that the creditor may request.
Therefore, the object of the obligation may
consist either of a positive action (to give or to do
something) or of an inaction, a negative action (not to
do something the debtor would have been entitled to in
the absence of the assumed obligation).
Starting from the above mentioned, it is
important to make the difference between the three
major categories of obligations existing in our
legislation: to give, to do and not to do something.
The obligation to give means the obligation of
create or transfer a real right7, such as, for example, the
sellers obligation to transfer to the buyer the property
right.
We may say that the obligations to do are those
positive actions that may not be considered obligations
to give (the obligation to deliver a service, the
obligation to pay the rent, the obligation to execute a
work, the lessors obligation to make available to the
lessee the property that is the object of the lease
agreement8 etc.). Therefore, the differences between
the two aforementioned categories revealed the
meanings of each of them.
The obligation not to do consists of the debtor
abstaining from doing something that might have
done, unless binding to abstain. We should mention
that the obligation not to do does not refer to a negative
general obligation, such as, for instance, the obligation
of the undetermined passive subjects of the property
right, who have the obligation not to do anything that
might affect the owners right9.
Therefore, we may say that there is an obligation
not to do something when, within an obligation, the
debtor undertakes to abstain from exercising a right
that, normally, it was entitled to exercise. For example,
there is an obligation not to do when the owner of a
land undertakes before their neighbor not to erect a
construction with a certain use, waiving thus to
exercise a power they had in their capacity of owner.
4. The sanction of the obligation.
As previously mentioned, the sanction of the
obligation is considered by some authors as the fourth
element of the obligation. The sanction arises usually
when the debtor does not fulfill willingly its obligation
and it consists in the creditors right to use various
legal means for settling its claim, such as:
a) enforcement procedure commenced against
the debtor, regulated by the Romanian Civil Procedure

Alin-Adrian Moise, op. cit., p. 1216;

Real rights are listed under Article 551 of the Civil code, and are the following: the property right, the superficies right, the right of
usufruct, the usage right, the habitation right, the easement, the administration right, the concession right, the right of use, real security rights,
other rights the law considers as being of such nature;
8
Art. 1786 Civil Code sets forth among the main obligations of the lessor the obligation to hand over to the lessee the property leased;
9
Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Civil Law Course. Main Real Rights. Second Edition, revised and
supplemented, Hamangiu Publishing, 2013, Bucharest, p. 21;
7

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Challenges of the Knowledge Society. Private Law

Code and which may be direct enforcement and

indirect enforcement.
b) legal action, regulated also by the Romanian
Civil Procedure Code, whereby the creditor requests
from the Court having jurisdiction to oblige the debtor
to perform the due obligation.
c) default interest, namely that compensation in
money owed by the debtor for remedying the damage
caused to the creditor by the failure to fulfill the
obligation in due time, which may be cumulated with
the fulfillment of the obligation in kind or with
compensatory damages10.
d) periodic penalties and fines. These are
amounts of money that the debtor is obliged to pay,
under a Court judgment, to the creditor, as far as
periodic penalties are concerned, or to the state budget,
in case of the fines, as a sanction for fulfilling the
obligation late.
A major difference between the two is that, as
regards periodic penalties, these are subject to
reimbursement after the obligation is fulfilled by the
debtor, while the fines may not be reimbursed, being
considered revenues to the state budget.
If we shortly analysed the methods available for
the creditor to obtain the fulfilment of its obligation, it
is our view that is important to discuss also about the
legal means offered by the legislation to the debtor in
order to perform the payment or to defend its rights.
a) the notification of default of the creditor. Thus,
pursuant to Article 1510 of the Civil code, the creditor
may be notified of default if refusing without grounds
the payment duly offered or refusing to perform the
preliminary acts without which the debtor is not able
to fulfill the obligation.
If the creditor is notified of default, it take over
the risk of impossibility of fulfillment of the
obligation, and the debtor is not bound to return the
proceeds obtained after the notice of default.
Moreover, the obligor is bound to remedy the
damages caused by delay and to cover the expenses on
the preservation of the property owed (Article 1511
of the Civil code).
b) consignment of the property or its sale at
public auction. A prerogative set forth under Article
1512 of the Civil code, this arises if the obligation of
the debtor consists of handing over a property and such
obligation may not be fulfilled because of the
ungrounded refusal of the creditor. In such case, the
debtor may consign the property at the expense and
risk of the creditor, thus being discharged of its
obligation. However, if the nature of the property
makes consignment impossible, if the property is
perishable or its storage involves maintenance costs or
considerable expenses, the debtor may start the public
sale of the property and may record the price, notifying
in advance the obligor and obtaining the approval of
the court of law [Article 1514 par. (1) Civil code].

Further, if the property is listed on the stock

exchange or on another regulated market, if its current
price or value is too low by comparison with the
expenses incurred upon public sale, the court may
approve the sale of the property without the
notification of the creditor [Article 1514 par. (2) Civil
code].

III.
THE
OBLIGATIONS

SOURCES

OF

THE

The sources of obligations are listed under

Article 1165 of the Civil code, which sets forth that
the obligations arise from an agreement, a unilateral
act, management of other persons interests, unjust
enrichment, undue fulfillment, delict, as well as any
other act or fact that the law connects with the creation
of an obligation.
a) The agreement is defined under Article 1166
of the Civil code, as the agreement of will between
two or several persons in the intent of creating,
changing or terminating a legal relationship.
b) The unilateral civil legal act is the result of the
will of one party (art. 1324 1339, Civil code).
c) Negotiorum gestio (called also management of
other persons interests) is basically the operation
whereby a person, called negotiorum gestor, through
its intentional and unilateral action, interferes and does
material or legal acts in the interest of another person,
called principal, without being empowered by the
latter11. Negotiorum gestio is regulated by the Civil
code, art. 1330-1340.
d) Unjust enrichment (art. 1345 1348 Civil
Code) may be defined as the unlawful act whereby the
patrimony of a person increases at the expense of
another person, without any legal grounds, the latter
being entitled to claim and obtain the restitution.
e) Undue fulfillment (art. 1341 1344 Civil
code) means the fulfillment by a person - the debtor
(solvens) for the benefit of another person the
creditor (accipiens) of an obligation they were not
bound to and that they fulfilled without the intention to
fulfill someone elses obligation.
f) The unlawful act as a source of the obligationbased legal relationships is regulated in Chapter IV of
the Title V in the Civil code, being also known as
legal liability. Legal liability may be defined as that
obligational relationship within which a person has the
obligation to remedy the harm caused to another
person by its wrongful act or the harm for which it may
be held liable according to law.
Civil liability is, pursuant to art. 1349 and 1350
Civil Code, of two kinds: tort and contract.

10
Compensatory damages are the equivalent value of the damage suffered by the obligor due to the failure to fulfill or the partial fulfillment
of the obligation and may not be cumulated with the fulfillment of the obligation in kind;
11
G. Boroi, L. Stnciulescu, Civil institutions under the new regulation, Hamangiu Publishing, 2012, Bucharest, p. 169;

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Bogdan NAZAT
g) Besides all these sources, we should
mention12:
- civil liability for the damages caused by flawed
products put in circulation, governed by the Law no.
240/2004 on manufacturers liability for damages
caused by flawed products, republished 13;
- injuries caused by legal errors.

IV. THE CLASIFICATION

OBLIGATIONS

OF

THE

Besides the categories of obligations mentioned

above, i.e. obligations to give, obligations to do and
obligations not to do, the Romanian legislation knows
several types of obligations, classified by taking into
consideration different aspects.
Therefore, the obligations are also classified as
follows:
a) positive and negative obligations. This
classification is significant, for instance, as regards the
manner in which the notification of default made by
the creditor functions, if damages-interests are claimed
for the failure to fulfill, the late fulfillment or the
improper fulfillment of the obligation.
Thus, pursuant to provisions of Article 1523 par.
(2) letter b) of the Civil code, the debtor is notified of
default by the effect of the law when defaulting on an
obligation not to do. On the other hand, as regards
positive obligations, as a rule, the notification of
default of the debtor is required, Article 1528 par. (2)
of the Civil code provides that except for the situation
when the debtor is lawfully defaulting, the obligor may
exercise such a right only if notifying the debtor either
when notifying the first of default or subsequent to it.
b) obligations of outcome and obligations of
means. Pursuant to Article 1481 par. (1) of the Civil
code, as regards the obligation of outcome, the debtor
is bound to obtain the promised result for the creditor.
Thus, obligations of outcome are those obligations
characterized by the fact that the debtor is obliged,
through its conduct, to obtain a certain result for the
benefit of the creditor.
The obligations of means, called also obligations
of diligence or obligations of prudence and diligence,
are defined under Article 1481 par. (2) of the Civil
code as being those obligation within which the
debtor is bound to use all the means required for
achieving the outcome promised. Thus, we may
define the obligations of means as those obligations
consisting of the duty of the passive subject to use all
the diligence required for achieving a certain outcome,
but without being bound to the outcome expected 14.
c) perfect civil obligations and imperfect civil
obligations. The perfect civil obligation is the
obligation that is sanctioned by the law, namely the

12

creditor may be helped by state coercion for its

fulfillment, if the debtor does not willingly fulfill the
assumed obligation.
Most obligations fall into the category of perfect
civil obligations.
The imperfect civil obligation, called also natural
obligation, is that obligation characterized by the fact
that its fulfillment may not be achieved by means of
enforcement in a Court of law but, if it is fulfilled
willingly, the debtor does not have the right to reclaim
the performance.
d) common civil obligations, scriptae in rem
obligations and propter rem obligations. The common
civil obligation is the obligation that is to be fulfilled
between the parties of the obligational relationship,
this being incumbent on the debtor for which it was
created. Most civil obligations consist of such
obligations, common obligations being the rule in our
law system.
Scriptae in rem obligation (or the obligations
binding also on third parties) is the obligation
characterized by the fact that, being in close
connection with a good, shall be effective also as
regards a third person that acquires subsequently a real
right to that thing, even if they did not take part in the
creation of the legal relationship that contains that
obligation.
Propter rem obligation, called also real
obligation, is the duty incumbent on the holder of a real
right to a thing and originates in the law or the
agreement of the parties. The existence of this category
is justified by the need for example to facilitate the
existence of some relationships of good neighbors, to
protect things of national importance, to use or
preserve the qualities of some important things 15.
e) other categories. According to the source of
obligations, there are the following categories of
obligations: civil obligations arising from unilateral
legal acts, civil obligations arising from contracts, civil
obligations arising from negotiorum gestio, civil
obligations arising from undue fulfillment, civil
obligations arising from unjust enrichment, civil
obligations arising from unlawful acts causing harms.
At the same time, there are simple obligations
and complex obligations. The category of complex
obligations includes divisible obligations and
indivisible obligations, joint obligations, obligations
affected by term and obligations affected by condition,
alternative obligations and optional obligations.
As a last classification, we may speak about
pecuniary civil obligations, whose object is the
obligation to provide an amount of money, and nonpecuniary civil obligations, whose object is any other
performance than an amount of money. This last
classification may be made depending on the object of

L. Pop, I.-F. Popa, S. I. Vidu, op. cit., p. 48;

The Law No. 240/2004 was republiushed in the Official Gazette of Romania No. 313/2008;
14
G. Boroi, C. A. Anghelescu, Civil law course. General Section, Hamangiu Publishing, 2011, Bucharest, p. 69;
15
G. Boroi, C. A. Anghelescu, op. cit., p. 71;
13

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Challenges of the Knowledge Society. Private Law

obligation, namely whether this may be expressed or

not in money.

considered the doctrine when drafted the the new

applicable legislation.
Therefore, by approaching this subject, we
intended to offer the reader the possibility to make
an opinion of the legal provisions applicable to and
the interpretation offered by the doctrine (based on
the legal provisions) to the institution under
analyse.

V. CONCLUSION
The subject choosen for this paper is actual,
even if the Romanian legislation is in continuously
change. It can be observed that the legislator
References

The New Civil Code. Comments per articles. Art. 1-2664, Coordinators Fl. A. Baias, E. Chelaru,
R. Constantinovici, I. Macovei, C.H. Beck Publishing, 2012, Bucharest;
Marilena Uliescu, The new Civil code. Studies and comments. IIIrd Volume. Ist Part. Vth Book.
About obligations (Art. 1164-1649), Universul Juridic Publishing, Bucharest, 2014;
C. Sttescu, C. Brsan, Civil Law.General Theory of Obligations, ninth edition, revised and
supplemented, Hamangiu Publishing, 2008, Bucharest;
L. Pop, I.-F. Popa, S. I. Vidu, Basic Civil Law Treatise. Obligations Pursuant to the New Civil
Code, Universul Juridic Publishing, 2012, Bucharest;
Gabriel Boroi, Carla Alexandra Anghelescu, Bogdan Nazat, Civil Law Course. Main Real Rights.
Second Edition, revised and supplemented, Hamangiu Publishing, 2013, Bucharest;
G. Boroi, L. Stnciulescu, Civil institutions under the new regulation, Hamangiu Publishing, 2012,
Bucharest;
G. Boroi, C. A. Anghelescu, Civil law course. General Section, Hamangiu Publishing, 2011,
Bucharest;
Law no. 287/2009 on the Civil Code;
Law no. 240/2004 on manufacturers liability for damages caused by flawed products;
Law. No. 71/2011 regarding the enforcement of the Civil code;
Romanian Civil code of 1864.