Natura şi conţinutul obligaţiei de a asigura transmiterea proprietăţii bunului altuia
The nature and content of the obligation to ensure the transfer of ownership of another’s property

Summary/Abstract: Despite the controversy over the recognition of the validity of the sale of another’s property irrespective of nuances, both doctrine and case law admit that at least in some situations the sale of another’s property is valid under the provisions of the new Civil Code. In these circumstances, it is necessary to analyse the obligation that arises for the alienator of another person’s property. The first step of this analysis, which we will do in this study, is to establish the content and nature of this obligation. Thus, we will establish the relationship between the general regulation concerning the performance of obligations in respect of property belonging to others and the particular regulation concerning the obligation of the seller of another’s property, on the occasion of which we will note that the higher degree of detail of the latter regulation and its special but non-derogatory nature make it necessary to allow the common law to be supplemented by the special rule – which will lead us to follow the legislator’s terminology in Article 1683 para. (1) Civil Code, namely that of an obligation to ensure the transfer of property. In the following, we will show that the ways in which this obligation is performed include, in addition to the specific performance of obligations to give, also those actions of the alienor which create for the buyer the conditions for acquiring the property by an original mode of acquisition. In addition to this conduct specific to an obligation to do something, one can also add the conduct consisting in inducing the third party owner to ratify the sale. In these circumstances, the conclusion can only be that the obligation to ensure the transfer of property is an alternative obligation, the object of which consists of a performance to give and a performance to do.

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