Învestirea instanţei de executare, de către creditor, cu o cerere de stabilire a daunelor moratorii pentru obligaţii băneşti cuprinse într-un titlu executoriu
The creditor's application to the executing court for the establishment of default damages for pecuniary obligations contained in an enforceable title

Summary/Abstract: The creditor's right to compensation for damages suffered by total or partial non-fulfillment of the obligation by the debtor is extensively regulated in Chapter II Section IV of the Civil Code. As it has been shown in a plastic manner the subject of contractual liability, in the classicized sense, which designates the right to damages for non-performance lato sensu of the contract, is a common denominator of treatises and university courses on Romanian law of obligations. The rules of substantive law on the enforcement of obligations established by court judgments or other enforceable titles provided for by law are correlated, accordingly, with the rules of civil procedural law in the field of enforcement in execution. The courts have an essential role to play in the process of interpreting the rules of substantive or procedural law. When the way in which they are interpreted is likely to lead to divergent case-law, referral to the High Court of Cassation and Justice for a preliminary ruling on a question of law becomes not only a way of preventing the emergence of divergent case-law, but also of ensuring the security of legal relations. For example, the principle of full compensation for damage, with its constituent elements – the loss actually suffered (damnum emergens) and the benefit not realized (lucrum cessans) – although widely dealt with in legal doctrine, may, in a given situation, cause the national court to face the problem of deciding which elements should be included or, on the contrary, excluded from the calculation of damages. The creditor has the right to the full, exact and timely fulfillment of obligations, postulates the Civil Code in art. 1.516. Performing an obligation did not and does not mean, however, that the creditor is granted only the amount of the service owed by the debtor. On the contrary, the principle of full compensation for damage also requires the award of those sums intended to compensate the creditor for the additional loss caused to the creditor in relation to the intrinsic value of the performance owed to him. Performance of the obligation in kind should be in the creditor's interest. According to Article 628, paragraph 4 of the Code of Civil Procedure „If the enforceable title does not include interest, penalties or other sums, but they are due to the creditor by operation of law, according to the provisions of Article 1.535 of the Civil Code or other special legal provisions, they shall be determined by the enforcement court, at the request of the creditor, by a judgment issued after the parties have been summoned”. By Decision No. 50/21 October 2024 of the High Court of Cassation and Justice, which is the subject of the present article, the Supreme Court has provided a solution to the notion of "full right", namely established, in the interpretation and application of the provisions of Article 628 paragraph 4 of the Code of Civil Procedure, referred to Article 1.535 of the Civil Code, whether they are incident and shall be applied by the enforcement court also in the case when the creditor requests late payment penalties established by agreement between the parties.

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